1986 PLP 1010 (MLD)

Mobashir Latif Ahmad for Petitioner. Sh. Afzal Ahmad Qureshi and Ch. Noor Muhammad Fazal for Respondents; Date of hearing: 27th January 1986. The petitioner in this constitutional petition has challenged the legality of the orders of the Family Judge and the learned Additional District Judge whereby he has been called upon to pay maintenance to respondent NO‑1 at the rate of Rs. 200 per month.

2. The facts giving rise to this writ petition are as follows: The petitioner and the respondent are Ahmad is. They were married at Rabwah on 29‑12‑1973. There is one issue of the marriage, a girl, who is living with the petitioner. Apparently, their marriage was not a success. On 12‑3‑1977 respondent No.1 filed a suit for maintenance. She alleged that the petitioner had turned her out from his house on 19‑3‑1976 without any cause and had since then declined to provide maintenance to her. The petitioner resisted the suit and averred that he had already divorced her. By an order, dated 14‑2‑1981 the Family Judge decreed the suit and directed the petitioner to pay maintenance to her at the rate of Rs. 200 p.m. beginning‑from the date of the institution of the suit. The petitioner filed an appeal, which was dismissed by the learned Additional District Judge on 5‑2‑1983.

3. The case of the petitioner before me is that the learned Additional District Judge and the Family Judge have misread the record and misconstrued the legal position when they came to the conclusion that marital ties between the parties still existed. It is to be noticed that in his written statement the petitioner had taken up the position: .when the defendant became convinced that the plaintiff had. no intention of living with the defendant as a wife he thought it better to pronounce Talaq by registered ‑letter, dated 17‑1‑1977. Subsequently, it transpired that as the copy of said notice was not sent to tile Union Committee, therefore, it would not be valid Talaq. In view of this legal lacuna the defendant vide Talaqnama, dated 17‑2‑1977 again divorced the plaintiff and copy of said Talaqnama was duly sent to the Union Committee; A Narowal. Talaq shall become valid on 17‑5‑1977." When she appeared in the witness‑box, respondent No.l did not den that she had received the Talaqnama on 17‑.1‑1977; however, her case was that the petitioner had admitted in his written statement that h had sent another Talaqnama to her on 17‑2‑1977. This was tantamount to the withdrawal of the first Talaqnama. Since she did not receive the second Talaqnama, her marriage with the petitioner was still subsisting.

4. The stand taken by respondent No.1 has 'only the merit of ingenuity. There is no evidence that after sending the first Talaqnama the petitioner had expressed any desire in any form to resume the marital ties. There was thus no Rajow . The petitioner has given an explanation for sending the second Talaqnama. As already mentioned w1, he has stated that he sent the second 'Talaqnama as he thought that the first Talaqnama suffered from a legal defect inasmuch as he had failed to give notice to the Chairman of the Union Committee. There is no material before me to reject his explanation. True, the provision, of the Muslim Family Laws Ordinance which require‑ sending of a notice to the Chairman did not apply in his case, but then we are more concerned with the state of his mind than with the correct legal position. The explanation which he has offered indicates that the execution of the se,lond Talaqnama on 17‑2‑1977, was not intended as revocation of the earlier Talaqnama of 17‑1‑1977 but a reiteration of his resolve to final ly put an end to the marital.ties with respondent No,

1. That being so, as after 17‑1‑1977 the petitioner did not directly or indirectly expres any intention to resume the marital ties, the marriage stood irrevocabl dissolved on the expiry of the period of Iddat.

5. Even if for some reason which I cannot discover the first Talaqnama be treated as ineffective, then there is the second Talaqnama, the effect of which was entirely ignored by the Family Courts. As regards, this Talaqnama, the case of respondent No.1 is that it was never communicated to her. Indeed, there is no satisfactory evidence of communication of the second Talaqnama to her on the record. But, then, when the petitioner filed his written statement wherein h specifically referred to its execution it stood communicated to her. I not the first one, at least the second Talaqnama became fully effective after three months of the filing of the written statement. The finding of Family Courts, therefore, that the parties were still married is clear misconstruction of the material on the record.

6. For the reasons stated above, I should think that the direction given by the Family Courts to the petitioner to pay maintenance allowance to respondent No.1 indefinitely is not legally sustainable. Even if the view most favourable to respondent No.1 is taken, she is not entitled to any maintenance beyond three months of the filing of the write statement. I would, therefore, declare that the orders of the Family Courts to the extent that it allows maintenance to respondent No beyond three months Qf the filing of the written statement to be of n legal effect. There will be no order as to costs in this petition. S. A. Petition accepted.