Case Summary: Mst. Balqis Fatima v. Najm- Ul- Ikram Qureshi (Pakistan)

Written by SAHR co-founder, Natasha Latiff.

• The parties performed a nikah ceremony without rukhsati (the wife continued to live with her parents). So the marriage was unconsummated.
• In 1952 the wife filed a suit for dissolution of marriage on the following two grounds:
• That the husband had failed to provide maintenance for a period of more than two years.
• That the husband was associating with women of ill-repute.
• The dispute which destroyed the marriage before it even began was not btw the spouses but btw their families. The position of the husband was not particularly disadvantaged (Carroll, 1996: 102) as he had no obligations of maintenance towards his wife as long as she was not living with him and could easily remarry (MFLO 1961 was not yet in place). ‘But the wife was well and truly trapped, she could not contemplate a new matrimonial alliance until her existing marriage was dissolved’ (Ibidem, 103).

Legal reasoning

1) Whether under Muslim Law the wife is entitled to khula as of right, even when husband not in accord.

• Kaikaus J: If the husband did not like the wife, he could divorce her at his will even though there was no blame on her. Yet the wife though she could not pull on with the husband without any fault in her, must be forced to live with him. Why should there be such a disparity between the rights of the spouses?( 592)
• Let it not be understood that our answer to the question referred grants a right to wife to come to the Court at any time and obtain khula if she is prepared to restore the benefit she has received. There is an important limitation on her right of khula. It is only if the judge apprehends that the limits of God will not be observed, that is, in their relation towards one another, the spouses will not obey God, that a harmonious married state, as envisaged by Islam, will not be possible that he will grant a dissolution. The judge will consider whether the rift between the parties is a serious one though he may not consider the reasons for the rift (593).
• The Quran does not envisage the continuance of a married life in case of a breach and provides for dissolution in such a case even without restoration of benefits, the claim of the wife to a khula as of right becomes stronger (577).

2) Whether the wife is entitled to dissolution of marriage on restoration of what she has received from her husband.

• If dissolution is due to some default on the part of the husband, there is no need of any restitution (582).
• If the husband is not in any way at fault, there has to be restoration of property received by the wife and ordinarily it will be of the whole of the property but the Judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received (582).

3) Whether Islam allows a husband and a wife who cannot live together in peace and harmony to separate or whether it forces them to continue.

Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation (582).

Conclusion

This is really a strong case for the wife. The parties cannot live together as husband and wife should and we would dissolve the marriage on the restoration of the benefit received by the wife (598). A decree for dissolution of marriage in the suit for dissolution of marriage was granted.

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