P L D 1962 (W (PLP)

(3) Whether defendants 2 and 3 are obstructing the defendant No. 1 from going to and staying with the plaintiff and per forming her marital obligations ? (4) Whether the plaintiff has been guilty of habitual cruelty, non‑maintenance ? If so, its effect ? (5) Whether the plaintiff failed to maintain the defen dant No. 1 ? (6) Whether the plaintiff or the defendants have misappro priated the valuables of the defendant No. 1 as alleged by each ? What is its effect ?"

5. On the main issue in the suit the learned trial Judge came to the conclusion that "the plaintiff had not given irrevocable divorce to the defendant No. 1 and that the defendant No. 1 did not visit the house of Amena on the night of 12‑12‑1956." He found all the other issues also against the wife, with the result that he passed a decree in favour of the husband for restitution of conjugal rights.

6. The defendants went up in appeal to the District Court, Karachi. The appeal was heard by Syed Iftikhar Hussain, First Additional District Judge, who upheld the findings of the trial Court and dismissed the appeal. In the second appeal before me the only point argued by Hafiz Sultan Ahmed, the learned counsel for the appellant, is whether the Talaq pronounced by the husband is operative or not.

7. It will be seen that in this case the two Courts below have recorded a concurrent finding of fact that the wife did not go to the house of Mst. Amena on the night the Talaq was pronounced by the husband. This finding is based on certain documents which have been placed on the record by the parties. The most important of them is Exh. P. 7 written by the wife herself at 9 p.m. on the 12th of December 1956, that Is Immediately after the divorce incident. It gives a detailed account as to what happened. It recites that the altercation between the husband and wife took place on the question of wife's visits to Mst. Amena. After stating that the husband enquired from her three times if she would go to Mst. Amena and on her answer in the affirmative every time, the husband pronounced divorce, the document goes on to say that after the pronouncement of the third Talaq the husband addressed the wife saying that in the name of God and Prophet he would ask her not to go and finish the matter then and there, upon which she sat down and sent for Mst. Amena. From this document the following facts clearly emerge (a) That the divorce was pronounced during an altercation which had arisen due to the fact that Mst. Bilqees Fatma was Insisting on going to the house of her friend Mst. Amena at 9 p.m. that evening; (6) that after having pronounced the third Talaq, the husband entreated the wife not to go to Mst. Amena that evening and thus to finish the altercation. This is a clear indication that the divorce was conditional on the wife visiting Mst. Amena that night ; and (c) that the wife did not visit Mst. Amena that night but instead sent for her at her own house.

8. The other documents which may be mentioned are Exh. A‑1 and Exh. D‑

1. Exh. A‑1 is by the husband Manzoor Ahmed and states that the wife has not so far visited Mst. Amena. Exh. D‑1 dated 19‑7‑58 is written by the wife's brother Manzoor Hussain In order to obtain a Fatwa. This is in the third person and cannot be taken to be an authentic account of the incident. It may also be mentioned that it was written about a year and a half after the incident. There is one other document, namely, Exh. P‑1, on which the husband obtained Fatwa In his favour. It seems to me, however, that out of these documents it is only Exh. P‑7 which contains a full account of the incident and which must prevail not only as against the other documents on the record but also as against the oral evidence tendered at the trial.

9. A large number of authorities were cited by the learned counsel for the parties to show the legal consequences of the divorce pronounced by the husband Manzoor Ahmed in this case. It seems unnecessary to refer to them for the reason that the question involved in the present case is basically a simple one, namely, what was the intention of the husband when he pronounced divorce. It is clear that the divorce in this case was made dependent on a condition, namely, that it was to come into force if the wife went to Mst. Amena. Hafiz Sultan Ahmed has contended that the husband was clearly intending to divorce the wife should she pay a visit at all to the house of Mst. Amena. He pointed out that there is evidence on the record that the wife did visit Mst. Amena, if not on the same night, then the next day or the day after. It seems to me that the contention put for ward by the learned counsel for the appellant cannot be sustained on the basis of the contents of the document, Exh. P‑7, to which I have already referred. A perusal of that document leaves no doubt whatsoever that the altercation between the husband and wife arose because of the wife's insistence to visit Mst. Amena as 9 p.m. on the 12th of December 1956. The husband had returned A from his duty at that very time and naturally he wanted the wife to stay in the house. The document makes it clear that when the third divorce had been pronounced, the husband en treated the wife not to go to the house of Mst. Amena and to finish the matter. On this request from the husband the wife salt down and did not go to the house of Mst. Amena that night. In other words, it is clear that the condition imposed for the enforcement or the operation of the Talag was that the wife should visit Mst. Amena that night. As the wife did not do so, the Talag did not become operative. The Talag did not extend to any future visits of the wife to the house of Mst. Amena, after the night in question.

10. That the Hanafi Law recognizes a situation of this kind is clear from the Fatawa‑e‑Alamgiri, page 642, as well as from Durrul‑Mukhtar, Volume 11, page

353. The example given there is more or less on all fours with the present case. It states that if the wife intended to go out of the house and the husband said to the wife that she would be repudiated if she left the house, then she would be divorced If she did so at that very time ; but if she did not leave the house immediately but did so after some time, then the divorce would not operate.

11. My conclusion, therefore, is that in the present case the divorce pronounced by the husband was contingent on the condition of the wife going to the house of Amena at the time of the altercation, and that as she did not do so, the condition was not fulfilled and the divorce did not become operative. The cir cumstances of the case as well as the document Exh. P‑7, leave no doubt whatsoever that the condition cannot be interpreted to refer to the future visits to the house of Mst. Amena and, therefore, the fact whether she visited Mst. Amena subsequently or not, is irrelevant for the consideration of the question which arises here. The two Courts below were, therefore, right in holding that the divorce did not become operative and that Mst. Bilqees Fatma continued to be the legally wedded wife of the husband Manzoor Ahmed.

12. As no other point was raised before me, the appeal falls and is hereby dismissed. I would, however, leave the parties to bear their own costs in this Court. S. B./A. H. Appeal dismissed.