1994 PLP 1720 (SCMR)

SALEEM AKHTAR, J.‑‑‑The petitioners seek leave to appeal against the judgment passed by the learned Judge in Chambers dismissing the regular second appeal filed by them.

2. The brief facts are that one Gheba Khan, husband of Mst. Sat Bharai owned and possessed agricultural land. Gheba Khan divorced Mst. Sat Bharai, the respondent on 19‑5‑1969 and in terms of the provisions of the Muslim Family Laws Ordinance, 1961 served a notice as well. He died on 14‑6‑1969 before the completion of 90 days of the service of notice of Talak. The Chairman, Union Council, issued a certificate dated 21‑9‑1969 declaring that Talak did not become effective during the lifetime of Gheba Khan. The petitioners filed a suit on 22‑1‑1970 seeking a declaration that the order passed by the Chairman is illegal and that as Gheba Khan divorced the respondent, she will not be entitled to inherit his estate. This plaint was rejected. The petitioners, however, filed another suit for declaration that they are owners of the land left behind by deceased Gheba Khan and that Mst. Sat Bharai being his divorcee was not entitled to inherit his estate. The learned trial Court dismissed the suit by judgment and decree dated 6‑5‑1971. The first appeal filed by the petitioners was also dismissed by the learned District Judge and the regular second appeal filed by them also met the same fate by the impugned judgment.

3. The learned counsel for the petitioner contended that the provisions of Muslim Family Laws Ordinance have been misinterpreted as under section 7 of the Ordinance time for thinking and cooling down is given to the husband which does not mean that the power to divorce has been taken away, as in the High Court reference was made to Mirza Oamar Raza v. Mst. Tahira Begum and others (PLD 1988 Kar.169). However, it may be observed that the appeal filed in the referred case was allowed by this Court and that judgment has been set aside in Federation of Pakistan v. Mst. Tahira Begum and others CA. No. 64‑K/1989 (1994 SCMR 1740).

4. Besides this the case is governed by section 7(3) of the Ordinance, which provides that save as provided in subsection (5) Talak unless revoked earlier expressly or otherwise shall not be effective until the expiration of 90 days from the date on which notice under subsection (1) is delivered to the Chairman. The present case does not fall under subsection (5) which is irrelevant for this controversy. However, in view of subsection (3) Talak shall not be effective till the expiry of 90 days from the date of service of notice to the Chairman. Reference can be made to Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqui and others (1984 SCMR 584). From the facts narrated above it is clear that Gheba Khan died much before the expiry of 90 days. During this period, if he would have been alive, he would have had the option to revoke the divorce pronounced by him. There is a procedure provided under law under which reconciliation proceedings are initiated and it is only on expiry of 90 days of service of notice that the Talak becomes effective. On the date Gheba Khan died, Talak had not become effective in terms of section 7 of the Ordinance. Therefore, the respondent continued to be his wife. In these circumstances, she was entitled to inherit the property of her husband. We refuse to grant leave. AA./M‑1926/S??????????????????????????????????????????????????????????????????????? ?????????? Leave refused.