One Step Forward, Two Steps Back: The Unending Twist and Turn Regarding the Law of Khul‘ and its Exposition by the Superior Courts in Pakistan

Muhammad Munir

 

Abstract: This article analyses the proactive judicial law making by the Peshawar High Court while deciding the Fakhar-ud-Din,1 and how the Hon’ble Supreme Court reversed, through its decision in the Yasmeen Bibi case,2 some of what was achieved in the former case. The main findings of this article are that in the Fakhar-ud-Din case, the Peshawar High Court ruled that a Family Court should not order a wife to return the entire amount of dower if such Court is convinced that a husband has forced his wife to ask for khul‘ or when she is destitute, has no means and resources, and is unable to pay back the whole dower/mahr. However, in the Yasmeen Bibi decision, the Supreme Court has attributed many statements to Fakhar-ud-Din case that were never stated in it. Such assertions include that:1) the wife shall not return dower/mahr to the husband because a marriage contract cannot be valid and binding if its consideration or dower/mahr is not received by the wife; 2) in case of khul‘ the wife is required by the Qur’an not to return the dower; and 3) she has to return other benefits such as gifts given to her by husband. The Supreme Court has also described marriage as a ‘civil contract’ and dower/mahr as its consideration. These remarks made by the Supreme Court have no bases in Islamic law as they are against the Qur’an and the Sunnah. Additionally, by ruling on the issue of repugnancy to Islam of Section 10(4) of the Family Courts Act, both the Hon’ble Supreme Court and the Peshawar High Court have intruded into the jurisdiction of the Federal Shariat Court, which has already ruled that the said provision was not against the injunctions of Islam.