P L D 1978 Lahore 328 (PLP)

This writ petition arises out of a matrimonial dispute. The petitioner" bad instituted a suit for restitution of conjugal rights. Learned Family Judge held that the marriage stood dissolved through khula' which type of dissolution being irrevocable, the subsequent withdrawal of divorce and a certificate in that behalf by a Chairman was of no effect. Accordingly the slit of the petitioner was dismissed. The learned District Judge, while deciding, the appeal held that the proceedings purporting to be before the Chairman of the Union Committee for withdrawal of the divorce were not competent, therefore, the certificate of cancellation of Talaq, relied upon by the petitioner did not affect the finality of the Talaq.

2. I do not agree with the learned counsel for the petitioner that the divorce, in this case did not amount to dissolution of marriage through khula'. The petitioner took the following extraordinary position with regard to the original divorce dead and notice sent by him in that behalf to the Union Committee : "That on 3-8-1974 about a month after respondent No. 1, had left his house, the petitioner was suffering from fever and had high temperature when the said Abdul Haq came to him and admonished him for ruining his family life but not permitting respondent No. 1 to meet his sister which had resulted in their virtual separation. He offered his good offices to bring about a compromise between the spouses provided they petitioner agreed to allow respondent No. 1 to meet her sister and he would have to give it in black and white Since the petitioner had sot tired of lonely life, he agreed to it. The said Abdul Haq took the petitioner tai his house, called his neighbour Muhammad Amin, scribe, and got petitioner's thumb-impression on a few papers which according to them constituted the deed containing the above-said terms of the compromise. The said Abdul Haq promised that he would send the respondent No. 1 to petitioner's house soon. That despite the so-called compromise, respondent No. 1 came empty handed to the petitioner's house after a month. On petitioner's inquiry as to why she had not brought her ornaments and clothes, she said that it would be told to him in the evening by the said Abdul Haq and her sister. When petitioner came to his house in the evening,, he found the said Abdul Haq, Wahid Bakhsh son of Allah Yar. Ibrahim son of Waris and Mst. Hayat Bibi, sister of the respondent No. 1, there who told the petitioner that he had divorced the respondent No. 1 who was no more his wife now and since the house was in the name of the respondent No. 1, the petitioner should vacate the same. The petitioner was driven out of his house by them. The petitioner then contacted Muhammad Amin the scribe of the so-called agreement and after some efforts succeeded in eliciting from him the confirmation of the respondent No. 1's statement that she had obtained divorce from the petitioner. The said Muhammad Amin also told the petitioner that notice of divorce bearing thumb-mark of the petitioner had been given to the Chairman of the Union Committee. That the petitioner was shocked to learn all this. He then realised that a fraud had been played with him." This version with regard to the original dissolution was not accepted by the', learned trial Judge and it was held that In reality the petitioner had in an overall settlement with the respondent divorced her and that this compromise' divorce amounted to khula'. No doubt an argument was raised before the: learned lower appellate Court from the petitioner's side that Rs. 1,200 watt' not paid to him as khula' consideration because there was no mention of this consideration having been paid either in the divorce deed nor there was a separate receipt in that behalf but the learned Judge did not give any finding setting aside the decision of the learned Family Judge on the question that it was a khula' divorce.

3. Learned counsel for the petitioner has tried to repeat the same arguments which mere advanced before the learned trial Judge. After bearing him on the merits of the case I find no justification for giving a finding of fact in favour of the petitioner on merits, namely, that he was defrauded by the respondent and her party, nor there is any justification for interference with the finding of fact that the dissolution took place on ground of khula'.

4. The question that next arises is whether the petitioner could cancel or revoke the aforementioned dissolution. Although reasons have been advanced in the impugned appellate judgments that the revocation in this case did not take place to a lawful manner yet for a different reason I have come to the conclusion that decision in the impugned judgments with regard to revocation is neither illegal nor without lawful authority. Learned counsel admits that a khula' dissolution is irrevocable. The khula' in the present case was by agreement of both the spouses. It would not strictly fall under subsection (1) of section 7 of the Muslim Family Laws Ordinance, 1961 which deals with an ordinary divorce given by a husband. The matter, however,) I agree with the learned counsel, would fall under section 8 of the Ordinance, which deals with other types of divorce or dissolution of marriage. I also agree with the learned counsel that even to this type of dissolution of marriage "the provisions of section 7 shall, rnutatis mutandis and so far as applicable, apply but I do not agree with him that subsection (3) of section 7, (revocation) would be applicable to a dissolution of marriage of the type as is involved in the present case. Section 8, clearly places a condition on the application of section 7, namely, that it would apply "so far as applicable" and that also with necessary changes (mutatis mutandis). Islamic Law does not permit revocation of dissolution of marriage effected through khula' or? mubara?at. Subsection (3) of section 7 has not changed the Islamic Law. The expression "unless revoked earlier" used therein carries the implication that the revocation should be lawful. In this case it is not denied that under Islamic Law, revocation is not permissible. Therefore, if the expressions ..so for as applicable" and "mutatis mutandis" used in section 8, are applied, the above reasoning would show that subsection (3) of section 7 would no! provide any scope for revocation in this case. That being so, the exercise by the petitioner of allegedly sending a cancellation or revocation application -to and/or the Chairman conducting the proceedings and giving a cancellation ,certificate in that behalf is without competence and without lawful authority.

5. It may be observed here that even if there were a doubt on question of interpretation of section 8 read with subsection (3) of notion 7, the same would, on the basis of the principles underlying, and law declared in Haji Nizam Khan v. Additional District Judge, Lyallpur and others (P L D 1976 Lah. 930), have been solved in favour of the interpretation which is in accord with and advances the Islamic Law and philosophy.

6. In the light of the above discussion there being no scope for revocation nor the same having taken place in accordance with law, I find no justification for interference with the impugned judgments. This petition accordingly is dismissed in limine. S. Q.??????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed. ???????????