P L D 2025 Supreme Court 469 (PLP)

SHAKEEL AHMAD, J.

This Civil Petition for Leave to Appeal filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, arises out of the judgment dated 31-10-2022 passed by the learned Single Judge of the Peshawar High Court, Mingora Bench, whereby Civil Revision No. 371-M of 2020 filed by the respondent, Mst. Musarat, was allowed and the concurrent findings of the courts below denying her share in the inheritance of the estate of Shah Bakht Rawan (hereinafter referred to as the "deceased") were set aside.

2. It will be first convenient to briefly state the factual background against which the instant petition arises. The dispute concerns the inheritance to the estate of the deceased. The petitioners are the legal heirs of the deceased, while the respondent, Mst. Musarat is his widow. It is an undisputed fact that the respondent was married to the deceased in accordance with Muslim rites; however, during his lifetime, the deceased sent a divorce deed bearing No. 372 dated 27-8-2018 to the respondent through post, thereby divorcing her. Thereafter, the deceased passed away on 3-10-2018, prior to the expiry of the ninety days iddat period. After his death, the mother of the deceased, Mst. Bakht Begum, along with the children of the deceased, filed an application under Section 372 of the Succession Act, 1925, seeking a succession certificate in respect of the deceased's estate. It was pleaded that the respondent, having been divorced before the death of the deceased, had ceased to be his legal heir and was therefore not entitled to inherit from his estate. The respondent, however, filed an application seeking impleadment based on her status as the widow of the deceased. Her application was allowed, and she was arrayed as a respondent. She contested the petition by filing her written reply, upon which, and in the light of the divergent pleadings of the parties, issues were framed. After a full-fledged trial, the learned Civil Judge/Guardian Judge Swat, vide judgment dated 24-1-2020, granted succession certificate in favour of the other legal heirs, being mother and the children of the deceased, but declined to grant any share to the respondent on the grounds that she stood divorced before the death of the deceased. Being aggrieved of the same, the respondent preferred an appeal which was dismissed vide judgment dated 13-11-2020. She then filed a Civil Revision before the Peshawar High Court, Mingora Bench, after providing right of audience to both the parties , the High Court, vide judgment dated 31-10-2022, held that succession opens immediately upon the death of the deceased, and as on that date only two months and four days had passed since the pronouncement of divorce and it had not yet become effective, therefore, the respondent being the deceased's widow was entitled to inherit from his estate, setting aside the concurrent judgments of the courts below. The petitioners have now approached this Court seeking leave to appeal against the judgment of the High Court.

3. Learned Counsel for the petitioners contended that the divorce deed executed on 27-8-2018 took immediate effect, thereby terminating the marital status of the couple and ruling out any possibility for mediation or reconciliation, as a result the respondent ceased to be the wife of the deceased, and therefore, is not entitled to inherit from his estate.

4. Having heard the learned Counsel for the petitioners, the pivotal question that emerges here is whether a wife, divorced through Talaq-e-Biddat is entitled to inherit her deceased husband's estate if his death occurs during her iddat period.

5. Marriage under Islamic law is a civil contract and not a sacrament. It is ordained by Allah in the Holy Quran. It is designed to ensure comfort, companionship, and mutual love between spouses. The husband bears a solemn and continuing obligation to treat his wife with love, compassion, and respect, and to provide her with maintenance, including food and clothing, throughout the subsistence of the marriage, as reflected in the last sermon of the Holy Prophet Muhammad (PBUH). The Holy Quran never intended for a divorce to act as a device of instant magic whereby the marital bond is severed immediately. A woman, who enters into the sacred bond of marriage with the legitimate expectation of sharing in all aspects of her husband's life, its joys, sorrows, burdens, and blessings cannot be discarded whimsically nor should she be made to vanish from the matrimonial home and the heart of her husband through a mechanical invocation of divorce. In line with this sacred view of marriage, Islamic jurisprudence provides a structured and deliberate process of its dissolution. 'Talaq', namely divorce at the instance of the husband, is generally categorised into three forms: Talaq-e -Ahsan, Talaq-e-Hasan, and Talaq-e-Biddat or Talaq-e-Bain. The first two forms of divorce are expressly recognised and sanctioned by the Quran and Hadith, requiring reflection and waiting periods, thereby offering a room for reconciliation. In contrast, Talaqe-Biddat or triple divorce is neither endorsed by the Quran nor supported by the Hadith. The very term 'Biddat' denotes innovation and indicates that this form of divorce was a post-Prophetic development. While early Islamic practice, as reported by Ibn Abbas, treated three pronouncements of divorce made at one time as a single revocable divorce during the lifetime of the Prophet (PBUH), the tenure of the first Caliph, and the initial years of the second Caliph, the practice was altered during the Caliphate of Hazrat Umar (RA) as a disciplinary measure to curb the misuse of divorce.1 Thus, Talaq-e-Biddat might be regarded as a form of talaq not rooted in divine command, but rather an administrative necessity of earlier times.

6. The commandments of Allah regarding Talaq are set out explicitly in Surah Al Baqra (2:226-232) and Sura -Al-Talaq (65:1), which are clear and unequivocal. Additionally, Sura-Al -Ahzab (33:49) and Sural -An-Nisa (4:35) are also relevant herein. The directives contained in these verses are clear, categorical, and leave no room for ambiguity. The mandate of the Holy Quran is reproduced below, translated into English and Urdu: Those who swear not to have intercourse with their wives must wait for four months. If they change their mind, then Allah is certainly All-Forgiving, Most Merciful. And if they decide upon divorce, then surely, Allah is All-Hearing, All-Knowing. And the divorced women shall wait concerning themselves for three courses; and it is not lawful for them that they conceal what Allah has created in their wombs, if they believe in Allah and the Last Day; and their husbands have the greater right to take them back during that period, provided they desire reconciliation. And they (the women) have rights similar to those (of men) over them in equity; but men have a rank above them. And Allah is Mighty, Wise. Such divorce may be pronounced twice; then, either retain them in a becoming manner or send them away with kindness. And it is not lawful for you that you take anything of what you have given them (your wives) unless both fear that they cannot observe the limits prescribed by Allah. But, if you fear that they cannot observe the limits prescribed by Allah, then it shall be no sin for either of them in what she gives to get her freedom. These are the limits prescribed by Allah, so transgress them not; and whoso transgresses the limits prescribed by Allah, it is they that are the wrongdoers. Then if he divorces (for the third time), she will not be lawful for him until she marries some husband other than him. But if he (the latter) also divorces her, in such a case there shall be no sin on both of them (the former husband and the wife) if they return (once more to the wedlock), provided both of them (now) think that they would be able to observe the limits set by Allah. And these are the limits (prescribed) by Allah which He explains to those who have knowledge. And when you divorce your wives and they approach the end of their appointed period, then either retain them in a becoming manner; or send them away in a becoming manner; but retain them not wrongfully so that you may transgress. And whoso does that, surely wrongs his own soul. And do not make a jest of the commandments of Allah, and remember the favour of Allah upon you and the Book and the Wisdom which He has sent down to you, whereby He exhorts you. And fear Allah and know that Allah knows all things well. And when you divorce women and they reach the end of their period, prevent them not from marrying their husbands, if they agree between themselves in a decent manner. This is an admonition for him among you who believes in Allah and the Last Day. It is more blessed for you and purer; and Allah knows but you do not know. O Prophet! (Say to the Muslims:) 'When you seek to divorce your women, divorce them during their period of purity and count their prescribed period. And keep fearing Allah, who is your Lord. And do not drive them out of their homes, nor should they leave unless they commit open indecency. And these are Allah's (fixed) limits. And whoever transgresses Allah's limits has surely wronged his own soul. (O man,) you do not know that Allah may perhaps develop a new situation (to turn you back to her after divorce). O believers! When you marry the believing women and then divorce them before you have touched them (i.e., had sexual intercourse with them), then no waiting period is (obligatory) on them for you which you may start counting. So, give them some provision, and send them off nicely extending to them kindness. And if you fear a breach between the two, then appoint one arbitrator from the husband's family and the other from the wife's family. If both (the arbitrators) resolve to bring about settlement, Allah will create harmony between them. Indeed, Allah is All-Knowing, All-Aware.

7. The concept of triple talaq, not finding its roots in the Holy Quran or the authentic Hadith, has been a subject of considerable controversy among various schools of Islamic thought. Notably Fiqah Jaffaria and the Maliki School do not recognize its validity, a view also shared by the Shafi School. The Hanbali School of thought, however, treats triple talaq as a single divorce if the marriage was consummated and the pronouncement made in a specific form.2 This divergence of interpretation and the social consequences of a unilateral and instant divorce have given rise to legislative intervention and compassion in the form of Subsection (3) of Section 7 of the Muslim Family Law Ordinance, 1961 (the "Ordinance"). This provision mandates that a talaq shall not take effect unless a period of ninety- days has elapsed from the date on which notice is given to the Chairman of the Union Council. During this statutory period, the marital status of the spouses remains unaffected, thereby affording an opportunity for reconciliation. The legislative intent is to discourage hasty divorces requiring a cooling-off period consistent with Islamic principles. Far from being repugnant to the Islamic Injunctions, this provision is in harmony with the Quranic commandment found in Surah Al Baqrah, which enjoins a period of waiting and reflection before the finality of divorce.

8. Furthermore, whilst Islam has permitted the dissolution of marriage in cases of necessity, it is a course strongly discouraged and disapproved in principle. The Quran prescribes a structured procedure for when divorce becomes final and absolute, which necessarily includes the observance of Iddah, that is, a waiting period a woman must observe following the death of her spouse or a divorce. Iddah is not merely symbolic but serves a substantive purpose, for it allows for reflection, potential reconciliation, and the possible retraction of the pronouncement of divorce. However, recognising Talaq-e-Biddat as immediately effective undermines this essential safeguard, depriving the husband of the opportunity to revisit a hasty decision and standing in clear conflict with the Quranic injunctions governing the sanctity and dissolution of marriage.

9. This Court, in Mst.Rehmat Bibi case3, upheld the High Court's decision, where the husband had pronounced talaq three days before his death. It was held that succession opens at the time of death, and since the ninety-day period under the Ordinance had not passed, the divorce was not effective. Consequently, the wife was deemed a legal heir.

10. Before parting our ways with this judgment, it is imperative to note that divorce, although permissible, has been disdained by the Holy Quran to a very high degree, particularly for its grave consequences, especially for women. A divorced woman is frequently subjected to significant economic, social and psychological hardships upon leaving her matrimonial home, along with a stigma that may continue to haunt her for the rest of her life. It is precisely for these reasons that Islam prescribes a deliberate and reconciliatory process for the dissolution of marriage, emphasising restraint and fairness to all parties involved.

11. For all the aforesaid reasons, we are of the considered view that written talaq pronounced by the deceased, Shah Bakht Rawan, had not become final in accordance with the injunctions of the Holy Quran nor did it fully comply with the mandatory statutory period under Sub-section (3) of Section 7 of the Ordinance. Consequently, Mst. Mussarat, the respondent, continues to remain the lawful widow of Shah Bakht Rawan, entitled to inherit his estate.

12. We find no legal flaw in the impugned judgment of the High Court calling for interference. Therefore, in the light of the foregoing discussion, we are of the view that the petition has no force and is hereby dismissed and leave declined. No order as to costs. MH/A-24/SC Petition dismissed. 1 Chapter 4 of the Muslim Law of Divorce by K.N. Ahmed (1984) 2 Pg.91, Muslim Law of Divorce by K.N Ahmed (1984) 3 1988 SCMR 1812 Mst.Rehmat Bibi v. Mst.Sharifan Bibi and others