P L D 1984 Lahore 234 (PLP)

On 27‑1‑1976 Chuhar petitioner filed suit against Mst. Ghulam Fatima, respondent No. 1 and Faqir Hussain respondent No. 2 for declaration to the effect that he is owner in occupation of the suit land as a sole heir of Jagga deceased. It was averred in the plaint that Jagga had died bachelor and as such, the respondents Nos. 1 and 2 not being wife and son respectively of the deceased, mutation No. 256, dated 24‑10‑1975 which was got sanctioned through collusion and fraud, was void and ineffective against his rights. The suit was resisted by raising preliminary objections and denying averments made in the plaint. The respondents asserted that they being wife and son of Jagga deceased, the mutation of inheritance was validly sanctioned in their favour.

2. On the pleadings, the trial Court framed 9 issues. The petitioner/ plaintiff examined P. W. 1 Lal, P. W. 2 Muhammad Boota s/o Peru, P. W. 3 Basbir Ahmad and himself appeared as P. W.

4. He tendered in evidence documents Exh. P. 1, copy of Nikahnama, dated 14‑7‑1963 of Mst. Ghulam Fatima respondent No. 1 with Muhammad Boota s/o Imam Bakhsh C. W. 1, Exh. P. W. 2, copy of Record of Rights of years 1972‑73, Exh. P 3, copy of mutation No. 256, Exh. P. 4, copy of entry from birth register showing that Faqir Hussain, respondent No. 2 was born on 2‑1‑1975. In rebuttal, respon dents/defendants produced D. W. 1 Abdul Aziz, D. W. 2 Rashid Ahmad, D. W. 3 Muhammad Ramzan, D. W. 4 Wali Muhammad and D. W. 5 Nawab Din. Mst. Ghulam Fatima respondent No. 1 entered in witness‑box as D. W.

6. She was examined twice. The respondents tendered in evidence documents Exh. D. 1 and D. 2, copies of statement of respondent No. 1 and petitioner/plaintiff before the Assistant Collector, Eeh. D. 3, copy of entry from death register indicating that Muhammad Ramzan alias Jagga, the predecessor in‑interest had died on 21‑10‑1974, Exh. D. 4 copy of certificate issued by the Administrator, Union Council that the name of Mst. Ghulam Fatima wife of Muhammad Ramzan is mentioned at serial No. 28 of the Voters List.

3. The trial Court decreed the suit on 26‑10‑1981. Feeling aggrieved, the respondents/defendents filed appeal which was entrusted to the learned Additional District Judge who vide judgment and decree dated 23‑11‑1982 while accepting the appeal, dismissed the suit of the petitioner/plaintiff, hence this revision.

4. Before me, the findings of the learned Additional District Judge on issues Nos. 7 and 8 have been challenged. The issues are as under :‑‑ Issues (7) Whether the plaintiff is owner in possession of the suit property as heir of Jagga deceased? . O. P. P. (8) Whether mutation No. 256 dated 24‑10‑1975 is illegal, void and based on fraud, if so, its effect? O. P. P. Mr. Asif Saeed Khan Khosa, the learned counsel for the petitioner who has argued the case admirably, has raised following contentions :‑‑ (i) That petitioner No. 1 is the first cousin of Jagga deceased, and there being no legal and reliable proof of Mst. Ghulam Fatima's marriage with Jagga deceased on the record there was no legal justification at all to reverse the findings of the trial Court on issues No. 7 and 8. (ii) Assuming that the marriage of Mst. Ghulam Fatima with Jagga deceased is ‑ proved then her marriage with her first husband namely Boota s/o Imam Bakhsh C. W. 1. having; not been terminated due to non‑giving of notice by first husband to Mst. Ghulam Fatima, respon dent No. 1 as required by sections 7 (1) and (3) of the Muslim Family Laws Ordinance (hereinafter to be referred as, the Ordinance) she could not validly marry with Jagga and consequently Faqir Hussain respondent is not a legitimate child. To support this contention, the learned counsel has relied on cases Ghulam Shabbir Shah v. The State 1983 S C M R 942; Noor Khan v. Haq Nawaz and others 1983 P S C 194; Dr. Masood Khan v. Chairman, Arbitration Council, Wah and 2 others P L D 1982 Lab. 532; Shera and others v. The State P L D 1982 F S C 229; Abdul Mannan v. Safuran Nessa 1970 S C M R 845; Syed Ali Nawaz Gardezi v. Lt.‑Col. Muhammad Yousaf P L D 1963 S C 51; Inamul Islam v. Mst. Hussain Bano and 4 others P L D 1976 Lab. 1466; Muhammad Siddiq v. Mst. Mehrunissa and 6 others 1968 P Cr. L J 1701; The State v. Mst. Tauqir Fatima and another P L D 1964 (W. P.) Kar. 306; Mubarik Ali v. Tahir Jan and others A I R 1929 Lab. 372 ; Mst. Ghulam Fatima v. Abdul Qayyum and others P L D 1981 S C 460 and Liaqat All and others v. Karim‑un‑Nissa and others I L R 15 All.

397. On the other hand. the learned counsel for the respondents has supported the judgment of the learned Appellate Court and relied on Muhammad Rafiq v. Ahmad Yar and another (P L D 1982 Lab. 825) and Aman Ullah Khan v. ladat Shah (N L R 1981 Cc. 164), to contend that failure to give notice under section 7 (1) of the Ordinance does not render ineffectives a `Talaq' pronounced by husband and omission to give notice is only an offence punishable under the Ordinance.

5. I have considered the arguments advanced by the learned counsel for the parties in the light of law enunciated by the superior Courts. In the peculiar circumstances of the case, I have not been able to persuade myself to agree with the learned counsel for the petitioner. The question whether the petitioner is the sole heir of the deceased and whether respondents Nos. 1 and 2 are the wife and son respectively of Jagga deceased are the questions of fact. The learned Appellate Court has applied its conscious mind to the relevant evidence and circumstances and has given cogent reasons to reverse the find ings of the trial Court on issues Nos. 7 and

8. Since in our country there is no concept of adultery and illegitimacy and a woman living in adultery and an illegitimate child are looked upon with great disapproval and resentment and the findings given by the Courts have important bearing on the feelings of the people, therefore, 1 am of the view that in cases relating to the validity of marriage and legitimacy of a child, the evidence should be appreciated, assessed and weighed very carefully. A heavy onus would lie on the party pleading invalidity of the marriage and illegitimacy of a child to prove the same through unambiguous and convincing evidence. In this case in the larger interest of justice, I have reappraised the evidence. I have been impressed by the statement of Abdul Aziz D. W.

1. Muhammad Ramzan D. W. 3, Wali Muhammad D. W. 4 and Nawab Din D. W.

5. They have stood the test of cross‑examination and have given evidence in straightforward manner. Wali Muhammad and Nawab Din are closely related to the petitioner/plaintiff. These witnesses have no ill‑will against him. Abdul Aziz D. W. 1 and Muhammad Ramzan D. W. 3 have stated that the Nikah of Mst. Ghulam Fatima respondent No. 1 with Muhammad Ramzan alias Jagga was performed in their presence and that respondent No. 2 was born out of this wedlock. The witnesses have been seeing Mst. Ghulam Fatima living as wife with the deceased till his death. My assessment is that the defendants' evidence is confidence‑inspiring. On the other hand, there was criminal litigation between Mst. Ghulam Fatima respondent No. 1 and D. Ws. 1 and 2 namely Law and Boota. They have given a negative type of evidence. It is worth notice that the truth had slipped out of the mouth of Chuhar P. W. 4, the petitioner, when he stated; It is remarkable that Ramzan is also known as Jagga. The learned counsel has failed to point out any material misreading/non‑reading affecting the decision of the Appellate Court. To my mind, the learned Appellate Court has rightly relied the defendant's evidence and has correctly discarded the plaintiff's evidence. I am fully convinced that Mst. Ghulam Fatima respon dent No. I was married with Jagga and Faqir Hussain respondent No. 2 was born out of this wedlock.

6. Coming to the contention at No. (ii), I may point out that the same is centred round one. Small but most important point i. e. the effect of non giving of notice of Talaq to the Chairman of Union Council concerned vis‑a‑vis, the validity of divorce by first husband to Mst. Ghulam Fatima respondent No. 1 and the legitimacy of respondent No.

2. I am of the view that each case has to be decided on its own facts. In the case in band, the facts that Muhammad Ramzan deceased was also known as Jagga; that Chuhar petitioner/plaintiff is cousin of Jagga deceased; that Mst. Ghulam Fatima was married with Boota s/o Imam Bakhsh C. W. 1; that the sister of C. W. 1 was married to the brother of Mst. Ghulam Fatima respondent No. 1 in 'Watta'; that Muhammad Boota prononunced Talaq to respondent No. 1 and the brother of respondent No. 1 gave Talaq to the sister of the first husband namely Boota C. W. 1; that C. W. 1 did not give notice of Talaq to the Chairman, Union Council as required by section 7 of the Ordinance and consequently no arbitration council could be constituted; that Mst. Ghulam t Fatima contracted second marriage with Ramzan alias Jagga much after the expiry of 'Iddat' and that Boota C. W. 1 never revoked talaq expressly or otherwise, are the admitted, undisputed and proved facts of the case. Now I proceedp to examine whether the instant case falls within the purview of section 7 (1) and (3) of the Ordinance or not. For that I would like to reproduce the statement of C. W. 1 with advantage

7. The plain reading of the statement indicates that it was a `Watta marriage'. Boota C. W. 1, the first husband gave Talaq to respondent No. 1 arid the sister of the first husband was also released from the wedlock of the brother of fist. Ghulam Fatima. The first husband has exp!icitly stated: It was, therefore, a case of considered and determined Talaq/seperation by mutual consent. It is well‑settled that if the husband abstain from giving a notice to Chairman Union Council, he could perhaps be deemed to have revoked the pronouncement. No doubt, the omission to give notices in some cases may give rise to irresistible presumption that Talaq has been revoked impliedly but the presumption is always rebuttable which stands sufficiently rebutted by the subsequent conduct of the first husband and his statement reproduced above. The observations made by his Lordship Mr. Justice Muhammad Haleem, J. in paras. No. 10 and 13 of the case Mst. Ghulam Fatima v. Abdul Qayyum and others (PLD1981SC460) are instructive and may be usefully reproduced:‑ "Para No. 10.‑‑On the facts of the present case, there was no evidence of mutual consent of the parties as would appear from the above discussion. In fact the husband had disputed the right of the wife to obtain divorce on the basis of Talaq pronounced by him and it was nobody's case that she had filed the suit to obtain separation by Khula. As Muhammad Sadiq had died, the question of exercising her right to obtain separation by Khula did not arise. Therefore, the respondents could have succeeded only on the ground of mutual consents of the spouses which they have failed to establish. The High Court, without examining the evidence as a whole, has erroneously held that it was a case of divorce by Mubara't." "Para. No. 13.‑1n the result and for the reasons given above, I hold that the Talaq had not become effective but stood revoked as no notice under subsection (1) of section 7 was given by Muhammad Sadiq. The appeal is allowed with costs, the order of the High Court is set aside and the order of the trial Court, dismissing the suit, is restored." It may be noted that the Honourable learned Judge has not declared Talaq ineffective for want of notice but in his wisdom has stated that Talaq had not become effective but stood revoked. The words "stood revoked" are of great significance. The case in hand is, however, a case of determined Talaq/separation by mutual consent where the question of revocation does not arise. Although the Talaq was pronounced 15 to 18 years back, yet the first husband never revoked it expressly or otherwise. In these circumstances, I am convinced that the main object of section 7 of the Ordinance to prevent hasty dissolution of marriage by Talaq pronounced by the husband unilate rally has not been defeated by non‑giving of the notice. Section 7 of the Ordinance is obviously for the benefit of female and if section 7 (1) of the Ordinance is interpreted in a manner as desired by the learned counsel, it may create many mischiefs and ruin lives of the respondents. To my mind, in the case in hand, the non‑giving of notice under section 7 (I) of the Ordinance does not render Talaq ineffective. The decisions relied on by the learned counsel are quite distinguishable, inasmuch as, in those cases either Talaq was revoked expressly/impliedly/otherwise or the factum of Talaq was denied/disputed whereas the situation herein is altogether different, inasmuch as, the Talaq was given with full determination and mutual consent and the same was never revoked expressly/impliedly or otherwise by first husband. For all these reasons I hold that Mst. Ghulam Fatima after having been validly divorced, contracted marriage with Jagga deceased and respondent No. 2 having been born out of this wedlock is legitimate son of the deceased and in the presence of these heirs, the petitioner cannot claim any share from' the inheritance of the deceased. The mutation was therefore, not void and illegal. For what has been stated above, there being no merit in the revision, the same is dismissed, leaving the parties to bear their own costs. M.Z. M. Petition dismissed.