P L D 1964 (W (PLP)

This reference has been made by Mr. Ghulam Qadir N. Qadri, Additional Sessions Judge, Karachi, with the recom mendation that the order passed by Syed Aftab Husain, Additional City Magistrate, Karachi, on the 6th of December 1962, on his application directing Shamsul Hassan, respondent No. 2, to pay Rs. 100 per month to Mst. Tauqir Fatima, respondent No. 1, on the fifth of every month till the arrears and the allowance for Iddat is exhausted, be set aside on certain grounds mentioned therein. It was against this order that Mst. Tauqir Fatima, respondent No. 1, filed a revision application before the Sessions Judge, Karachi. It was dealt with by Mr. Ghulam Qadir N. Qadri, Additional Sessions Judge, Karachi, who has made this reference.

2. In his application filed before the Additional City Magistrate, Karachi, Shamsul Hassan, respondent No. 2, had submitted as follows :‑ That the opponent has divorced the applicant today by pronouncing Talaq three times irrevocably and also gave In writing the same to the applicant who refused to take the same on the advice of her learned Advocate. I have filed carbon copy of the same herewith. That now I will send the written divorce to the applicant by registered acknowledgment due through Post Office, which was pronounced today. That I may be allowed to pay the arrears of amount granted by this Hon'ble Court as maintenance to the applicant by easy instalment.

3. The learned Additional Sessions Judge, having quoted these contents of the application of respondent No. 2 (Shamsul Hassan) before the Additional City Magistrate, has referred to the relevant facts of this case. While doing so, he has indicated that Mst. Tauqir Fatima and Shamsul Hassan were married about 16 or 17 years back In India and after their migration to Pakistan, he had deserted her. That was why Mst. Tauqir Fatima had filed an application under section 448, Criminal Procedure Code, for maintenance allowance against him. An order granting maintenance allowance at the rate of Rs. 50 per month was passed on the 14th November 1960, by Syed Aftab Husain, Additional City Magistrate, Karachi. Against this order, Shamsul Hassan filed a revision application which was dismissed by Mr. Ehsanul Haq Qureshi, Additional Sessions Judge, Karachi, on the 22nd of May 1961. After his revision application had been dismissed by him, Shamsul Hassan filed a suit against Mst. Tauqir Fatima for a declaration to the effect that he. had divorced his wife, Mst. Tauqir Fatima, in India about 15 years earlier. This suit was, however, dismissed by the trial Judge who held that he had not divorced her, as alleged by him, and she continued to be his wife. Against the dismissal of his suit, he filed an appeal which was also dismissed.

4. It was after the dismissal of this appeal, that on the 6th of December 1962, Shamsul Hassan filed an application in the Court of the Additional City Magistrate, Karachi, the same as has already been referred to. It was on this application that the learned Additional City Magistrate had passed the order which is the subject‑matter of this reference.

5. According to the learned Additional Sessions Judge, the learned Additional City Magistrate should have made an inquiry under section 489, Criminal Procedure Code, modifying the order of maintenance allowance passed in favour of Mst. Tauqir Fatima to the effect that Shamsul Hassan should pay Rs. 100 per month to the complainant on the 5th of every month till the arrears and allowance for iddat is exhausted.

6. As pointed out by the learned Additional Sessions Judge, in course of this inquiry, the learned Additional City Magistrate should have allowed the parties to lead their evidence and argue the point whether Shamsul Hassan had divorced Mst. Tauqir Fatima, as alleged by him, on the 6th of December 1962. I agree with him that the learned Additional City Magistrate should not straightaway have accepted the application of Shamsul Hassan dated the 6th of December 1962, in which he had stated that he had divorced his wife on that day, by a valid and irrevocable divorce, because he had failed to give a notice to the Chairman of the Union Council concerned in accordance with the provisions of section 7 of the Muslim Family Laws Ordinance, 1961 (VIII of 1961). There is nothing on the record to indicate that any such notice had been given by Shamsul Hassan to the Chairman of the Union Council concerned, although it has been urged by his counsel that such a notice had been sent by him to the Chairman of the Union Council concerned.

7. Moreover, it is provided in subsection (3) of section 7 that: Save as provided in subsection (5) a talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman. As no such notice had been given by Shamsul Hassan in this case, the talaq, that he had pronounced according to his version, on the 6th of December 1962, could not have become effective. Therefore, the question of payment of the allowance sanctioned in her favour up to the period of her Iddat only, could not arise. By his order regarding the payment of the arrears of her maintenance allowance granted by instalments and up to the A period of Iddat only, the learned Additional City Magistrate had obviously modified the earlier order of maintenance allowance passed in favour of Mst. Tauqir Fatima. That he could not have done legally without making an inquiry under section 489, Criminal Procedure Code, as pointed out by the learned Additional Sessions Judge.

8. In view of this position, this reference is accepted and the order of Syed Aftab Husain, Additional City Magistrate, Karachi, dated the 6th of December 1962, is set aside. K.B. A. Reference accepted.