P L D 1952 Peshawar 55 (PLP)

MUHAMMAD SHAFI, J.‑Muhammad Irfan, of Dharra, a hamlet of Banda Pir Khan, in the Hazara District, instituted a suit for restitution of conjugal rights against Mst. Mahando, his wife. In the same suit he prayed that Saida and Mst. Sahibi, her father and mother respectively, and one Abdur Rahim should be restained from preventing Mst. Mahando to live with the plaintiff. The three defendants, i.e., Mst. Mahando and her parents put in a joint written statement, in which they admitted that Mst.Mahando was the wife of the plaintiff, but they alleged that she had been divorced validly under the Muslim Law. Abdur Rahim in his separate written statement also took up the same defence. The learned trial Court framed the following three issues in the case :‑

1. Whether defendant No. 1 stands divorced by the plaintiff ?

2. Whether the plaintiff is entitled to an injunction against defendants Nos. 2‑4 ?

3. Relief. The learned trial judge on issue No. 1 held that defendant No. 1 was not divorced by the plaintiff. On issue No. 2, he came to the conclusion that the plaintiff had led no evidence to show that defendants Nos. 2‑4 were restraining 'his wife to join him. He consequently gave this issue against the plaintiff. He granted plaintiff a decree for restitution of conjugal rights against defendant No. 1 with costs. There was an appeal against this order, which was accepted by the learned District Judge, Hazara, who held that after the alleged divorce the parties had gone to Shariat over the question of their divorce, and the plaintiff had unsuc cessfully prosecuted his wife for bigamy, which made it obvious that the matters had gone to such a length between the parties that it was not a suitable case for the grant of the discretionary relief of restitution of conjugal rights. He consequently accepted the appeal and dismissed Muhammad Irfan's suit with costs. He, however, abstained from giving a finding whether Mst. Mahando was legally divorced by the plaintiff or not. Muhammad Irfan has come up on further appeal to this Court. I have given the case my most anxious consideration. I requested Sheikh Allah Bakhsh, a senior and an eminent member of the Peshawar Bar, to assist me in arriving at a correct judgment in this case, and I feel very grateful to him that he advanced before me very learned arguments,, which I value most. It is admitted by Mst. Mahando that the plaintiff did not pronounce the divorce to her. The facts, which according to her led to her divorce, were, given by her in her statement, which however, were by no means definite and clear. At one place she stated that a bottle of honey had been broken by the plaintiff's brother, whereupon the plaintiff said that if he did not take a similar bottle of honey from his brother, his two wives would stand divorced to him. She, however, immediately corrected her statement by saying that the plaintiff had said that if he did take the same bottle of honey from his brother, his wives would be considered divorced: As to what actually happened in the dispute over honey between the plaintiff arid his brother, Mst. Mahando defendant did not produce any other evidence. On the other hand, Ghulam Haider, the plaintiff's brother, came into the witness‑box, and he said that he had a quarrel with the plaintiff, in which the latter had stated that if the former did not give him a bottle of honey his wife, as distinct from wives, would be considered divorced to him. Ghulam Haider, however, added that he as a matter of fact had given a bottle of honey to the plaintiff. To the same effect was the evidence of Mir Alam, another witness for the plaintiff. He stated that during the altercation the plaintiff had said that if he did not take the honey from his brother his wife would be divorced to him. It appears from the evidence both by the plaintiff and Mst. Mahando defendant that the plaintiff has got two wives. The plaintiff's evidence clearly shows that in the altercation the plaintiff did not say that his both wives would stand divorced to him, but he said so only with regard to one, without specify ing which one he meant. It, however, shows beyond any doubt that a bottle of honey was returned by the brother to the plaintiff. It necessarily then follows that if all that happened was as has been stated by the plaintiff's witnesses, none of the wives of the plaintiff would be considered as divorced to him. The matter was admittedly referred to Khalilur Rahman, son of Ahmadji, who claims to be an expert in theology, and an Imam of the mosque at Kakool. I examined this gentleman as C. W.

1. He deposed that Mst. Mahando defendant had gone to him and had asked him to give her a Fatwa on a problem, which was that if a certain person said that he would not do a certain thing and if he did it his wives would be considered as divorced, and then subse quently he did that thing, whether in Muslim Law his wives would be considered as divorced or not. Coming to the point in dispute he said, that from the inquiry he came to know that the plaintiff had said to his mother's 'second husband that he would not give the hay to him, and that If he did give his both wives would be considered as divorced, and subsequently he did give the hay to his stepfather. Maulvi Khalilur Rehman' said that by giving hay to his stepfather both the wives of the plaintiff would be considered as divorced to him. He wrote down this Fatwa on a piece of paper, on which he took the thumb‑impression of the plaintiff. The question is whether as a matter of Muslim Law Mst. Mahando should be presumed to have been divorced by her husband the plaintiff. The fact's mentioned by Maulvi Khalilur Rehman (C. W. 1), that the dispute was over the hay, have not been alleged by the defendant at all, nor are they proved by any other evidence. It appears that this gentleman realized his foolish ness and altogether changed the facts in the hope of proving that his Fatwa was correct and according to Muslim Law. As has already been observed, the evidence as to what happened between the two brothers is conflicting. I am, however, not very much impressed by the statement of Mst. Mahando, that the plaintiff had said that his wives would be divorced to him, It he did not get, the same bottle of honey, after it was broken by his brother. The bottle having been broken, I. do not be lieve the plaintiff could possibly have said that. It appears that all that happened was that there was a quarrel between the two brothers in which the plaintiff said that he would take a bottle of honey from his brother, and if he did not do so, his wives would be considered divorced to him. The emphasis in this case was not on the divorce of the wives, but on his taking back the bottle of honey from his brother. It is not uncommon in this part of the country to find people taking oath like this, that if he did not do a certain thing he would be the son of an owl, or a bastard. It would be stupid to think that if the person did not do that thing he would automatically become a bastard or the son of an owl, and if the former, would lose all rights to inheritance from his father. The Mullas, the so‑called religious heads of the Muslims, have introduced certain absurdities in the religion, which tend to make it ridiculous, and cause others to laugh at it. The Muslims claim and rightly that Islam is the most realistic and rational religion in the world. It, in the matters of divorce, just as in other matters looks more to the intention of the people rather than the form or mere words if by taking an oath a party only wants to impress upon the other that a C certain thing must be done and that if it is not done his wives would stand divorced to hire, he does not in fact mean to sever his connections permanently with his wives in the event of his failure to do that thing. In fact this is clear from the text of the Holy Quran itself. In Chapter 2, verse 255 of the Holy Quran as translated by Abdullah Yusaf Ali, it is held down as under :‑ "God will not call you to account for thoughtlessness in your oaths, but for the intention in your hearts and he is oft forgiving most forbearing." This command of God precedes the provisions of divorce which follow immediately after. This makes it abundantly clear that it is the intention of the person which has got to be seen and the oath will not be taken at its face value: Apart from that; all that can be said to have been estab lished in this case is that the plaintiff in a fit of anger said to his brother that if he did not take a bottle of honey from him his wives would be divorced to him. He did not name the wives, nor did he say up to which time if he did not take the honey the wives would be divorced to him. He cannot be said to have broken his oath so long as he lives or so long as his brother does, because at any time before his death, or that of his brother, he can take a bottle of honey from him and thus retain his woman as his legally wedded wives. From whatever angle we see one thing is clear, and that is that Mst. Mahando cannot be looked upon as a divorced wife of the plaintiff. The next question which requires discussion is that on a piece of paper Khalilur Rehman (C. W. 1) wrote down the Fatwa, which was on the face of it‑not only wrong but stupid and foolish. The plaintiff signed it, not in token of his divorc ing the wives, but in that of the fact that it was communicated to him. The mere fact that he put his thumb impression upon this Fatwa will neither prove that the Fatwa is correct, nor will it have the effect of divorcing his wives. Mst. Mahando defendant appears to have taken a very hasty step in going out of her husband's house and marrying another man. Incidentally it may be mentioned that this woman has married a cousin of hers from whom he bears a child. On these grounds which are purely sentimental, the learned District judge accepted the appeal and refused to grant to the plaintiff a decree for the restitution of conjugal rights. I am afraid, in law there is no place for sentiments. Hard or not the law must take its course. Mst. Mahando defendant being a legally wedded wife of the plaintiff, the letter is entitled to enjoy her company as such. It was alleged in the written statement by Mst. Mahando defendant that the plaintiff had turned her out of the house. This contention, however, she has failed to prove. On the contrary it appears that she herself went away from her husband's house, and married a second man. As a result of the above discussion I have no other alter native but to grant the plaintiff a decree for the restitution of conjugal right. as against defendant No.

1. I consequently accept this appeal, set aside the, judgment and decree of the learned lower appellate Court, and restore that of the learned trial Court. Considering that the plaintiff‑appellant was rather foolish in taking an irresponsible oath, I leave the parties to bear their own costs throughout: Order announced. A. H. Appeal accepted.