P L D 1964 (W (PLP)

2. Mst. Fatima presented an application before the Civil Judge, Sargodha, on the 1st of November 1962, praying that contempt proceedings be taken against Muhammad Sher, respondent No.

1. Thereupon, the learned Civil Judge issued notices to the four respondents to show cause as to why pro ceedings for contempt be not taken against them. Respon dent No. 1 in his reply, admitted the publication of Exh. P. C. and he stated that he had asked for the fatwa for the clarifica tion of his rights as regards his wife. Zia Ullah Sanai respondent No. 4, Proprietor, Sanai Press, Sargodha, tendered unqualified apology for the publication. He stated that his two brothers had been murdered and the accused had escaped from police custody and in that connection during those days he was absent from Sargodha, and that the poster was published through a mistake of some of his employees in the press. That the poster was published at the instance of Muhammad Sher, respondent No.

1. Khawaja Qamar‑ud‑Din, respondent No. 3, in his reply, stated that the fatwa was given on the basis of a hypothe tical case and the reply was in accordance with Shariat and it did not amount to contempt of Court. No reply has been filed on behalf of Ghulam Mustafa, respondent No. 2, but his learned counsel has also taken the same stand as has been taken by the learned counsel for Khawaja Qamar‑ud‑Din, respon dent No.

3. The learned Civil Judge in his report has quoted a part of the fatwa and a part of the appeal by Muhammad Sher, respondent No.

1. In his view those words constituted gross contempt of Court as the respondent had tried to influence the public by saying that the decrees of the Court were vain and nugatory. He, therefore, submitted the case to the High Court that contempt proceedings be taken against the respondents so that the decrees granted by the Courts were not flouted, and that the minds of the people remain mesmerised by the granduer and dignity of law.

3. Notice was sent to all the respondents to show cause as to why they be not punished for the contempt of the Civil Judge. I have heard the learned counsel for all the respondents Mr. S. M. Zafar, learned counsel for respondent No. 3 has argued that according to Strict Hanafi Law the right to divorce vests in the husband only and a woman, in no case, can ask for the dissolution of her marriage. Consequently, no Court, according to Shariat, was competent to pass a decree for disso lution of marriage. The learned counsel has invited my attention to the statement of objects and reasons when the bill relating to the Muslim Dissolution of Marriage Act, was intro duced. It is stated as follows "There is no provision in the Hanafi Code of law enabling a married Muslim woman to obtain a decree from the Court dissolving her marriage, in case the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her, or absconds leaving her un-pro vided for, and under certain other circumstances. The absence of such provision entailed unspeakable misery to innumer able married Muslim women in British India." The bill was introduced in the year 1939, with some modifica tions and to that there is a note of dissent as published in the Gazette of India, dated the 11th of February 1939, which runs as follows :‑ "There is no provision in the Hanafi Code of Muslim law enabling a married Muslim woman to obtain a decree from the Courts dissolving her marriage, in case the husband neglects to maintain her, makes her life miserable by deserting and persistently maltreating or absconding her etc." The learned counsel has also invited my attention to the book "Haqookal Zaujain', by Syed Abul‑ala Maudoodi, wherein it has been stated at pages 49 and 50 that the right of divorce exclusively belonged to a man and that no Court could grant a decree for dissolution of marriage. The learned counsel has contended that this being the confirmed view of the Hanafi law when a question was put to respondents Nos. 2 and 3, they were justified in giving a reply which they did, and as Muhammad Sher, respondent No. 1, had not mentioned speci fically about his case, the question was treated as one of a general character and a reply which was in consonance with Shariat was given. That the respondents Nos. 2 and 3 were not even responsible for its publication and they never knew that Muhammad Sher, respondent No. 1, by obtaining this fatwa would try, in any way, to incite the general public against a valid decree of any Court obtained by his wife. The learned counsel has contended that it was the right of every citizen to criticise a law if it was against Shariat, especially when it has been specifically provided in Article 5 of the Constitution that no law shall be repugnant to Islam. In support of his contentions he cited the following authorities :‑ Andre Paul Terenee Ambard v. The Attorney‑General of Trinidad and Tobago (A I R 1936 P C 141). It has been remarked in this judgment "But whether the authority and position of an individual Judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way ; the wrongheaded are permitted to err therein ; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice. They are immune. Justice is not a cloistered virtue she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary man." Government Pleader, Bombay v. Tulsidas Subhanrao Jadhav (A I R 1938 Bom. 197). This was a case wherein the respondent expressed his con tempt for all the Courts of justice in the presidency but he had not made any attack on any Judge in particular nor he had commented on any particular case. It was held that the action did not amount to contempt of Court. Arthur Reginald Perera v. The King (P L D 1951 P C 23). It was held that in contempt of Court there must be involved some act done or writing published calculated to bring a Court or a Judge of the Court into contempt or to lower his authority or something calculated to obstruct or interfere with the due course of justice or the lawful process of the Court. In this case the appellant was a member of the House of Representatives and he visited a prison as a member of the Board of Prison Visitors. In his report he had remarked "the present practice of appeals of "remand prisoners" being heard in their absence is not healthy. When represented by counsel or otherwise the prisoner should be present at proceedings." It was held that his remark did not amount to contempt because he was commenting against a Prison Regulation and not procedure of any Court and that his criticism was honest criticism on a matter of public import ance. Rex v. B. S. Nayyar (A I R 1950 All. 549). In this case a deputation waited upon the Honourbale Premier and made some complaint against some of the executive officers. On the facts of that case it was held that the complaint made by them did not amount to contempt. The learned counsel also contended that if a case was not pending any criticism about its judgment will not amount to contempt and he has cited Dunn v. Bevan (127 L T R p. 14) and Kelli do Co. v. Pole and others (95 L T R Vol. 11 p. 405). These cases were decided on their own facts and do not apply to the present case because undoubtedly it cannot be laid down as a general proposition that if a case is decided no contempt can be committed in relation to such a decided case. Hadi Hussain and others v. Nasir Uddin Haider and others (A I R 1926 All. 623 at p. 628) is a clear authority laying down "any conduct that tends to bring the authority of a Court into disrespect or which amounts to an insult offered to the Judge or the dignity of the Court, even though it may be after the termination of a pending case, is undoubtedly a contempt of Court. Contempt is not confined only to cases which directly interfere with the administration of justice in a pending case." Several other authorities have been discussed in this judgment which go to show that a contempt can be committed even in relation to a case which has already been decided. After considering the facts of the present case I am clearly of the view that so far as respondents Nos. 2 and 3 are concerned, they have not, in any way, transgressed the limits of fair criticism of the judgment of a Court. In fact, in this case, I am not even satisfied that the respondents Nos. 2 and 3 knew that there was any decree of the Court which respondent No. 1 wanted to attack on the basis of their fatwa. I am satisfied that their reply was to a question which formed a hypothetical case. If in accordance with their interpretation of Shariat they were of the view that the right to dissolve the la marriage rests solely with the husband and that this power could not have been delegated to any Court of law, they would be justified in saying so inspite of a decree of a dissolution of marriage having been granted by a Court of law. Their action, at the most, amounts to a criticism of the existing law and there is no intention to bring into disrespect either the decree or even the authority of the Court. In this view of the matter I consider that respondents Nos. 2 and 3 have not committed any contempt. The notice so far as they are concerned, is discharged.

4. The appeal that has been published by respondent No. 1, is undoubtedly couched in a language which indicates that his object was to bring the administration of justice into disrepute. He was a party to the suit decided against him. He had, there fore, no right to represent that the decree of the Court was meaningless and that he continued to be the husband of Mst. Fatima. His attempt to incite the general public against the decree of the Court by taking support from the fatwa which he had obtained by posing a hypothetical question was intended t undermine the prestige of the Court. I would, therefore, hold him guilty of the contempt of the Court of the Civil Judge and sentence him to pay Rs. 25 as fine. If the fine is not paid within a month of this order he shall undergo simple imprisonment for a period of fifteen days.

5. So far as respondent No. 4 is concerned, he has tendered unconditional apology. I accept his plea that the publication had escaped his notice because of his absence from Sargodha during the days the poster was published. I would, therefore, accept his apology and discharge the notice so far as he is concerned. K. B. A. Order accordingly.