P L D 1988 Karachi 169 (PLP)

This is a Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, praying for the following relief s: ‑ (a) To declare that the Talaq pronounced and communicated by the Petitioner on 10‑2‑1982 to the Respondent No.1 and re‑affirmed by the written Divorce Deed dated 8‑3‑1982, is valid in the eyes of law and that the Respondent No.1 ceased to be the legally‑wedded wife of the Petitioner since 10‑2‑1982. (b)To declare that the Family Suit No.619 of 1982 instituted by the Respondent No.1 against the Petitioner and Respondents Nos.4 and 5 in the learned Family Court and all proceedings conducted therein/all orders passed therein either on the Original side or on the Appellate side, are bonito void, illegal, without jurisdiction‑, without any legal effect and not binding either upon the Petitioner or upon the Respondents Nos.4 and 5. (c)To direct the Respondent No.5 to issue the confirmation of divorce certificate in vogue back‑dating the same to a date which falls due at the expiry date of the period of 90 days after the receipt of intimation date 10‑2‑1982 under section 7 of the Muslim Family Laws Ordinance 1961 sent to him by the Petitioner. (d) To restrain the Respondent No.1 from claiming herself to be the legally‑wedded wife of the Petitioner and claiming any benefit from him as such by way of maintenance, except maintenance of Iddat period for three months since 10‑2‑1982."

2. The brief facts, as stated in the petition, are that the petitioner was married at Karachi with respondent No. 1 on 13‑9‑1979 in accordance with Fiqah‑e‑Jafaria. The marriage was duly registered in consonance with the Rules prescribed by the Muslim Family Laws Ordinance, 1961 (hereinafter referred to as "the Ordinance"). The Rukhsati also took place and the marriage was consummated. On 10‑2‑1982 while respondent No.1 was staying with her parents without the consent of the petitioner, as alleged, and had declined to return to him and perform her conjugal obligations, the petitioner in presence of witnesses pronounced Talaq to the respondent No.1 and by way of memorandum in writing communicated the same to her through registered post, which was duly received by her. Besides, the necessary intimation as required by section 7 of the Ordinance was also sent to the Chairman, Union Committee concerned. Respondent No.1 by her letter dated 8‑3‑1982 addressed to the Chairman of the Union Committee (respondent No.5) disputed the validity of the aforesaid Talaq and its communication in writing to her. A copy of the said letter was also received by the petitioner, where ' upon the petitioner addressed a further communication to the said Chairman by his letter dated 11‑4‑1982, wherein pronouncement of Talaq to respondent No.1 was reiterated and re‑affirmed by him. Respondent No.5 issued notices to the petitioner as well as respondent No.1 as required under section 7 of the said Ordinance. In the meanwhile the petitioner, in furtherance of the oral pronouncement of Talaq to respondent No.1 on 10‑2‑1982, executed a Talaqnama on 8‑3‑1982 on non‑judicial stamp paper, which was also sent to respondent No.1 as well as the said Chairman. In the aforementioned Talaqnama the petitioner also intimated to the parties concerned that he has appointed his Vakeel (respondent No.4) to recite seethe in accordance with Fiqah‑e‑Jafaria. Respondent No.1, instead of participation in the proceedings initiated under section 7 of the said Ordinance, instituted a Family Suit no.619 of 1982 in the Court of XVIII Civil and Family Judge, Karachi, praying for declaration that the divorce pronounced to her by the petitioner was invalid being contrary to the Injunctions of Islam as interpreted and prescribed by Fiqah‑e‑Jafaria. She also prayed for permanent prohibitory Injunction against the petitioner and respondents Nos.4 and 5 from acting upon the aforesaid allegedly invalid pronouncement of Talaq. Simultaneously with the institution of the said suit, Respondent No.1 also filed an application under section 151, C.P.C. praying for the stay of the operation of Talaqnama, pending final hearing of the suit. The learned Judge granted the said application by his order dated 18‑10‑1982. The petitioner filed an appeal bearing Family Appeal No.155 of 1982 against the said order, but the same was dismissed by the learned 8th Additional District Judge, Karachi by his judgment dated 12‑9‑1983. The trial of the aforesaid family suit proceeded after recording evidence, the said suit was decreed in favor of respondent No.1, as prayed, by the learned Judge by his judgment dated 30‑7‑1984, against which the petitioner preferred an appeal bearing Family Appeal No.18 of 1985, which was dismissed by his judgment dated 24‑2‑1986. Thereupon, the petitioner chose to file the above Constitutional Petition.

3. Mr. K.M. Nadeem, learned counsel for the petitioner, in support of the above petition, raised the following pleas:‑ (i)The entire proceedings in the form and substance of Family Suit No.619 of 1982 instituted by respondent No.1 in the Family Court, seeking declaration as to the subsistence of her marriage with the petitioner in spite of pronouncement of Talaq on 10‑2‑1982 and its communication in writing by way of memorandum by the petitioner to her, is bonito void, illegal and without jurisdiction, inasmuch as the issues raised and the reliefs prayed for therein are beyond the scope and ambit of the learned Family Court. Thus, all orders/ judgments passed by the learned Family Court/Appellate Court in the appeals arising out of such orders/ judgments are without jurisdiction and of no legal affect. (ii) The provisions of the Muslim Family Laws Ordinance 1961 are applicable to all Muslim citizens of Pakistan and override the tenets of Muslim Personal Law which are in conflict with the provisions of the said Ordinance and the Personal Law of any Muslim sect stands impliedly repealed by overriding provisions of the said Ordinance to the extent of such conflict. (iii)The provisions of section 7 of the Muslim Family Laws Ordinance have dispensed with the requirement and necessity of pronouncement of Talaq in any particular form. (iv) Under the scheme of law as envisaged by section 7 of the Muslim Family Laws Ordinance, a pronouncement of Talaq becomes automatically effective after the expiry of 90 days from the receipt of intimation of Talaq by the Chairman of the Union Committee and such effectiveness cannot be hampered by any other law. (v) In any case, tenets of Fiqah‑e‑Jafaria have been fully adhered to by the petitioner in this case.

4. On the other hand, Mr.S.H. Fani, learned counsel for respondent No.1 submitted that the impugned judgments, both of the trial Court as well as Appellate Court, are in exercise of jurisdiction vested in them under the Family Courts Act, 1964 as the suit was that of jactitation of marriage. As regards granting injunction by the learned Family Judge by passing an interim order as well as finally decreeing the‑ same, which were affirmed by the learned Appellate Court, it was submitted by the learned counsel that the same also fall within their jurisdiction as, there were no proceedings pending before the Chairman or the Arbitration Council. It was further submitted by him that the requirements of Fiqah‑e‑Jafria, as applicable to the case, have not been fully complied with by the petitioner and, that the provisions of the Muslim Family Laws Ordinance, 1961 cannot override the substantive Muslim Personal Law, as applicable to the case, and the provisions of the Ordinance are in conflict with the Injunctions of Islam, as laid down in the Holy Qur an and Sunnah, more particularly after the incorporation of Article 2‑A in the Constitution.

5. To deal with the contention No.1, as raised by learned counsel for petitioner it seems necessary that the jurisdiction of Family Court as provided in the Family Courts Act, 1964 be stated first. The jurisdiction to try marital disputes, as detailed in the Schedule under section 5 of the West Pakistan Family Courts Act, 1964, vests! exclusively in a Family Court established under the said Act. The relevant provision of section 5 of the Family Courts Act, 1964 reads as under: ‑ "Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts‑ Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule. 'The Schedule comprises of the following matters "(1) Dissolution of Marriage, (2) Dower, (3) Maintenance, (4) Restitution of Conjugal Rights, (5) Custody of Children, (6) Guardianship, (7) Jactitation of Marriage. 11 The above provisions of the Family Courts Act, 1964 make it clear A that the intention of law is to set up separate Courts and entrust matters to them in their capacity as Family Courts.

6. Both the Courts below have treated the suit fil ed by respondent No.1 as suit for jactitation of marriage. In order to see whether the suit, as such, can be said to be a suit for jactitation of marriage, let me, first analyze, in some detail, the meanings of "jactitation" and "jactitation of marriage". Learned counsel for the petitioner, as to the meaning of "jactitation" and "jactitation of marriage" has referred to Black's Law Dictio ' nary, Wharton's Law Lexicon, Halsbury's Law of England and Stroud's Judicial Dictionary.

7. In Black's Law Dictionary, Fifth Edition, page 748, jactitation of marriage has been defined as under: Jactitation. ‑‑Boasting of something which is challenged by another. A false boasting; a false claim; assertions repeated to the prejudice of another's right. Jactitation of marriage.‑‑ In English ecclesiastical law, the boasting or giving out by a party that he or she is married to some other, where a common reputation of their matrimony may ensue. To defeat that result, the person may be put to a proof of the actual marriage, failing which proof, he or she is put to silence about it.

8. In Wharton's Law Lexicon to Fourteen Edition page 53f,, 'it is stated as under:‑ Jactitation.‑‑The suit of jactitation of marriage (jactitation is matrimoni causa). When a person falsely boasts that he or she is married to another whereby a reputation of their marriage may ensue. The party injured sues for the purpose of having perpetual silence enjoined upon the unjustifiable boaster. See Thompson v. Bourke, 1893, P.70.11 In Stroud's Judicial Dictionary, Fourth Edition, Volume 3 page 1436, it is written as under:‑ Jactitation.‑‑jactitation of marriage is an action (originally ecclesiastical) for the false, malicious, and inexcusable boast and assertion by. a person that someone else is married to him or her (3 BI. Com. 93). "As stated by Lord Stow ell in Hawke v. Corry (2 Haggy. Con. 280), it is in the nature of a criminal suit. It has something in common with proceedings for defamation." (per Bowen L.J., Thompson v. Rourke (1893) P.70)

9. In Halsbury's Laws of England, third edition, Volume 7, page 110, about jactitation of marriage it is stated that:‑ "The jurisdiction in suits for jactitation, that is, for a declaration by the Court that a person should be restrained from boasting that he or she is married to the petitioner when it is not true, was transferred from the ecclesiastical Courts to the Divorce Court in 1857.11

10. In Vol. 12 at page 223 paragraph 418 it is further stated "If anyone persistently and falsely alleges marriage with another, the latter may obtain in a suit for jactitation of marriage a decree of perpetual silence. Only the person complaining that he has so been misrepresented can present such a petition." (Underlined by me).

11. On the other hand, learned counsel for respondent No.1 has referred to the case of Mst. Amina Begum v. Ghulam Nabi and 2 others P L D 1974 Lahore 78 and the case of Mst. Sakina and 2 others v. Nasir Ali P L D 1976 Quetta

97. In the Lahore case, Aftab Hussain, J. (as he then was) after quoting the definition as to the expression "jactitation of marriage" Wilson's Anglo‑Mohammadan Law and Halsbury's Laws of England, 3rd Edn., Vol.XII, p.225, paragraph 418 and the leading case of Mir Azmat Ali v. Mahmudul Nisa ILR 11 All. 96, observed that "These quotations undoubtedly support the respondent. They lay down the form of a suit for jactitation of marriage. The question, however, is whether this form is exhaustive of the above suits and whether the expression "jactitation of marriage" has been used in the Schedule to the Family Courts Act as referring to a suit of this form. I am of the view that this form is not exhaustive. It is only the usual form in which petitions for jactitation of marriage have been made in Ecclesiastical Courts." The learned Judge after quoting the dictionary meaning of jactitation from 20th Century Dictionary and referring to Goldstone v. Goldstone (1922) 127 LTR 32 held that "any declaration as to the status where one party alleges marriage and the other denies, it will amount to a decree for jactitation of marriage. It was thus further held that' a suit for affirmative declaration about existence or subsistence of marriage is as much a suit relating to marriage (underlined by me) as a suit for the negative declaration.The wider meaning of the expression "jactitation of Marriage" will, therefore, advance the object of the Act".

12. In 1976 Quetta case, Zakaullah Lodhi, J. (as he then was) referring to the above Lahore case, observed that "a suit for jactitation of marriage would be com I patent before a Family Court and the Family Court shall be entitled to give a declaration whether a person claiming to be married with the other person was claiming so rightly or wrongly. I am thus, of the view that the suit for jactitation of marriage can be competent to give declaration as to whether matrimonial relations exist between the contestants or not. In case of other persons or parties who raise such a claim which is disputed the aggrieved person shall have to file a regular civil suit in order to obtain a prohibitory decree within the meaning of section 54 of the Specific Relief Act as a Family Court is not competent to pass such a decree". 13. 1 may also refer to another judgment of Aftab Hussain, J. reported as Tajoo v. Mst. Sattaran in the same volume P L D 1974 Lahore

105. It was held that a suit for declaration that the defendant is not the husband or wife of the plaintiff and that the defendant alleges to be the wife or husband of the plaintiff, is a suit for jactitation of marriage.

14. In the lease of Mir Azmat Ali v. Mohammadunnisa I L R 1898 Allahabad 96; the plaintiff sued for, inter alia, declaration that the defendant was not, as she falsely alleged herself to be the wife of the plaintiff. The suit was dismissed by the subordinate Judge, finding for the defendant that she was the plaintiff's wife. The first appellate Court also dismissed the appeal on the ground that the suit did not lie. In the second appeal the Division Bench holding that it was a suit for jactitation of marriage and the Civil Courts had jurisdiction to try the same, observed that "there can no doubt that unless a man is entitled by means of a Civil Court to put to silence to women and who falsely claims to be his wife, the man and others may suffer considerable hardship, and his heir may be harassed by false claims after his death". It was further observed that "The Court trying such a suit will of course take care, before granting a plaintiff a decree, to see that it is 'strictly proved that the defendant did seriously allege that the disputed marriage had taken place and that the plaintiff did not acquiesce in the claim or allegation of the defendant as‑to the disputed marriage, and further that in fact no marriage had taken place between parties".

15. In Goldstone v. Goldstone (Law Times Report (1922) Vol. 127, 32) Israel Goldstone filed a suit against Leah Smith falsely calling herself Goldstone, alleging that she had falsely boasted and asserted that she, was his wife, and asking that she should be ordered to cease and desist from such boasting and assertion, and that she should be enjoined perpetual silence on the ‑subject.

16. A. A. Faze in his book, Outlines of Muhammadan Law, Lahore, 1964, third edition, page 124, referring to the case of Azmat Ali has written that "Jactitation is a false pretence of being married to another. If a man or woman falsely claims to be the husband or wife of another person, the proper remedy is to bring a suit for a declaration that the parties are not married. (Underlined by me). Such an action will lie between Muslims ~in India.

17. Shaukat Mahmood in his book "Principles and Digest of Muslim Law, 1976, third edition, page 46 has also written that "Jactitation is a false pretence of being married to another, If a man or woman falsely claims to be married to another, the proper remedy, would be to bring a suit for a declaration that the parties are not married to each other".

18. Jactitation, in legal terminology, as defined by me in my English‑Urdu Law Dictionary (Law Lexicon), Fourth edition, West Pakistan Urdu Academy, Lahore, is a false assertion of one's right, title or interest which is made with a view of ignoring other's right, title or interest. Jactitation of marriage has also been defined by me in the aforesaid Dictionary, as under:‑ Jactitation of Marriage,

19. It is noticeable that the Schedule under section 5 of the West Pakistan Family Courts Act, as promulgated in 1964, did not include "Jactitation of Marriage" , which was brought in by the amending Act of 1969. It is also noticeable that the Legislature did not include the "Marriage" or include matters (or all the matters) relating to Marriage. It included, specifically, a matter called as "jactitation of marriage", thereby excluding all other matters, relational to Marriage from the jurisdiction of the Family Court. It is settQ law that a provision relating to the conferment of jurisdiction on a Special Court or Tribunal and thereby excluding the general jurisdiction of ordinary Courts B should be construed strictly. I am, therefore, of the view that the question of determination as to the definition of jactitation of marriage must be given a specific meaning and not an extended meaning SIC observed in P L D 1974 Lahore

78. Here, it is not that the petitionor (defendant) is making a false claim of marriage and that is why respondent No.1 (Plaintiff) is asking for a declaration of the non‑existence of the marriage and consequently an injunction, against the petitioner not to call respondent No.1 as his wife. There ore, the suit, as framed and filed by respondent No.1, cannot be said to be a suit of jactitation of marriage. It is a suit, if I may say so, jactitation of divorce and not the marriage for which it was Civil' Court and not the Family Court who had the jurisdiction. In this Respect, as it is the content of the plaint which determines the jurisdiction of the Court, I may reproduce the relief s prayed for by respondent No.l/plaintiff, as below:‑ "(a) Decree for declaration that the deed of divorce dated 8‑3‑1982 and of 10‑2‑1982 and the divorce so pronounced by the defendant No.1 is invalid and against the principles and law of Fiqah‑e‑Jafria. (b) Declaration that the marriage between defendant No.1 and the plaintiff and their legal status, character and relations as husband and wife shall ‑continue to subsist and shall not be effected by such a divorce. (c) Declaration that defendants Nos. 2 and 3 shall have no jurisdiction and authority to confirm such divorce and act upon such divorce‑deed. (d) The defendant No.1 be restrained from contracting another marriage and the other defendants be directed to abstain from acting upon the divorce‑deed. (e) Cost of the suit be awarded." In this view of the matter both the Courts below appear to have assumed the jurisdiction as vested in them which it did not, in law, vest in them. Furthermore, section 22 of the Family Courts Act specifically bars the issue of injunction by Family Court. Relevant provision reads as under:‑ "A Family Court shall not have the power to issue an injunction to, or stay any proceedings pending before a Chairman or an Arbitration Council.

20. The submission of learned counsel for respondent No.1 that at the time of the grant of the interim injunction or the permanents injunction there were no proceedings pending before the Chairman and as such the said order/judgment is not hit by section 22 of the Family Courts Act, is misconceived. The provision of section 22 bars the jurisdiction of the Family Court from issuing any injunction not E only against pending proceedings but also against Chairman of the Union Council. Furthermore, it cannot be said that there were no proceedings before the Chairman. In fact, the proceedings under section 7 of the Family Laws Ordinance, 1961 stand initiated on the receipt of notice by the Chairman from the husband as the period of 90 days begins to run from the receipt of the notice. Anyhow, Chairman had issued notices.

21. Probably, the learned Family Judge was aware of the said provision of section 22 of the Family Courts Act and that is why the interim injunction was granted on an application moved by respondent No.1 under section 151, C.P.C. The learned Judge, however, seems to be unmindful of the provision of section 17, which specifically bars the application of the Code of Civil Procedure 1908, except sections 10 and 11 thereof, to proceedings before a Family Court. As such, the issue of injunction whether interim or permanent, against the Chairman was outside the pale of its authority. The assumption of jurisdiction by the Family Courts to entertain, hear and adjudicate upon the matter was, therefore, illegal.

22. A regards contentions (ii) to (iv), taken together as they co‑relate to each other, of the learned counsel for the petitioner, that the provisions of section 7 of the Family Laws Ordinance override the provisions of Muslim Personal Law, as applicable to the case, learned counsel relied on section 3 of the said Ordinance. Reference was also made by him to Crawford's "Statutory Constructions" and Craies on "Statute Law", besides the cases of Pehalwan Khan v. J.F.Elahi P L D 1962 (W.P.) Lahore 751, Muhammad Arif v. Muhammad Kawshar Ali PLD 1969 S C 435 and the case of The State v. Matloob Hussain Shah 1983 P Cr. L J

745. On the other hand, learned counsel for the respondent submitted that the Ordinance is hit by Article 20 of the Constitution and that section 7 of the Ordinance is against the Qur an and Sunnah and the said provision can be construed as such, under Article 268 read with Article 2‑A of the Constitution. Reliance was placed by him on my three judgments reported as Messrs Bank of Oman Ltd. v. Messrs East Trading Co. Ltd, PLD 1987 Kar. 404, Irshad H. Khan v. Mrs. Parveen Ajaz PLD 1987 Kar. 466 and Habib Bank Ltd. v. Muhammad Hussain PLD 1987 Kar. 612.

23. Crawford on Statutory Constructions, 1940 edition, writes on "Implied Repeals" that "Repeals of this type are those which take place when a subsequently enacted law contains provisions contrary to those of an existing law but no provisions expressly repealing them. Such repeals have been divided into two general classes; those which occur where an act is so inconsistent or irreconcilable with an existing prior act that only one of the two can remain in force, and those which occur when an act covers the whole subject of an earlier act and is intended to be a substitute therefore. As has been suggested, a repeal takes place under these circumstances, even though the new act contains no repealing clause The validity of such a repeal is sustained on the ground that the last expression of the legislature's will should prevail. (pp.196‑97). At pages 366‑67 he writes that "The latest expression of the will of Parliament must always prevail. It does not matter whether the earlier or the later enactment is public, local and personal, or private, or is penal or deals with civil rights only, and the rule is equally applicable to Orders in Council or Rules of Court if they have statutory force ‑and are made under authority empowering the rule‑makers to supersede prior enactments as to procedure. Before coming to the conclusion that there is a repeal by implication the Court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together before they can, from the language of the later, imply the repeal of an express prior enactment‑‑i.e. the repeal must, if not express, flow from necessary implication. At page 632 he further writes that "the repugnancy or inconsistency need not be between every provision of the two acts, as implied repeals may operate on parts of a statute as well as on it in its entirety. Where this is true, the old statute will be repealed by implication only to the extent of the repugnancy".

24. In Craies on Statute Law, sixth edition, 1963, page 365 it is stated that "where two Acts are inconsistent or repugnant, the later will be read as having impliedly repealed the earlier". (i)In P L D 1969 S C 435 it was observed that:‑‑ "It is true that Act I of 1876 was not expressly repealed but since the provisions of the Ordinance of 1961 applied by reason of the provisions of section 3 thereof notwithstanding any law, custom or usage and under section 5 thereof all marriages had to be registered by persons licensed to act as Nikah Registrars under the Ordinance, it cannot be said that they continued either to act as Marriage Registrars or to retain their status of a Marriage Registrar under the Act of 1876. The provisions of the Ordinance prevailed notwithstanding the provisions of the Act of 1876 and to that extent the provisions of the Act stood impliedly repealed. An intention to repeal the previous law may well be gathered from the repugnancy of its provisions with the general course of the subsequent legislation or from the incongruity of keeping both the enactments in force. This is further confirmed by the fact that both the appellants also took the same view of their legal position, for, they actually applied for and obtained licenses under the Ordinance of 1964. (ii)In P L D 1962 Lahore 751 (F.B.) it was observed that the principle of "implied repeal" is a rule to the effect that when a later statute dealing with a subject is inconsistent with an earlier statute dealing with the same subject, the Court may assume that the earlier statute had to the extent of inconsistency been repealed. (iii) In 1983 P Cr. L J 745 Supreme Court (Azad Jammu and Kashmir), while dealing with the contention of the learned Advocate‑ General that bail cannot be granted to a person charged with offence carrying the sentence of "Qisas" and .:'Hudood", it was observed by Raja Muhammad Khurshid Khan, C.J.., who wrote the judgment that: "All the exercise by the learned Advocate‑ General is premature and no deep thought is required to hold so. The Courts are only governed and guided by the codified laws and unless the whole conception of bails embodied in the Islamic Jurisprudence is not codified, we cannot legally go by them. Till then we have only to get guidance from the Islamic Jurisprudence relating to bails only to the extent of its being compatible with the codified law. If codified law is in departure to the Islamic law of Bails, aurally the Courts have to follow the codified law even if morally convinced that the Islamic law is to be preferred to the codified law. We would however, welcome a complete switch over of all the laws in strict conformity with the tenets of Holy Qurlan and Sunnah.

25. As to the overriding effect of the Muslim Family Laws Ordinance 1961, it seems advantageous to reproduce section 30) of the said Ordinance, which reads as under:‑

3. Ordinance to override other laws, etc.‑‑(I) The provisions of this Ordinance shall have effect notwithstanding any law, custom or usage, and the registration of Muslim marriages shall take place only in accordance with. those provisions." The provision of section 3 implies that any law or custom or usage stands impliedly repealed by the provisions of the Ordinance, in respect of matters specified therein, if it is found to be inconsistent with the same. In this respect, reliance has correctly been placed by the learned counsel for the petitioner on P L D 1969 SC 435 and the extracts from the books by Crawford and Craies, as quoted above. The term "Law" as used in the above section includes not only the Statute Law, but also the Muslim Personal Law, as then in force by the declaratory Act known as "The Muslim Personal Law (Shariat)Application Act, 1937". Later on, the West Pakistan Muslim Per' Law (Shariat) Application Act, 1962 was enforced, repealing the earlier Act of 1937, but the Act of 1962 was made applicable "subject to any other enactment". With the result that the Ordinance of 1961 stood firm holding the field, notwithstanding the enforcement of the Act of 1962, in respect of the matters specified therein to the extent 0. inconsistency, if any. It may be clarified that although. the various provisions of the traditional Muslim Personal Law have not been codified in Statute form, except in few cases, like Dissolution of Moser Marriages Act, 1939, yet they are made applicable and are enforced by virtue of power vested in Courts by West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 in matters relating to succession (whether testate or interstate), special property of females, betrothal marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relation, wills, legacies gifts, religious usages of institutions, including waifs, trusts and trust properties, subject to any other enacement, and it is in this respect that the judgment the Supreme Court of Azad Jammu and Kashmir 1983 P Cr. L J 745 referred to by the petitioner's counsel is distinguishable as the Muslim Personal Law has the force and effect of law to the extent it is made applicable by the above statute subject, however, to the provisions of Muslim Family Laws Ordinance, 1961.

26. Now let me consider the position of Muslim Family Laws Ordinance as protected piece of legislation. The Muslim Family Laws Ordinance (Ordinance VIII of 1961) was hammered out and promulgated on 15th July, 1961 by Field Martial Muhammad Ayub Khan during the period when the National Assembly stood dissolved, state of emergency proclaimed and Martial Law was imposed. The said Ordinance was given protection, under the Constitution of 1962 framed by Ayub Khan (Refer to Fourth Schedule, item Nova under "Ordinances promulgated by the President". Later on, in the Pakistan Interim Constitution, 1972 the said Ordinance was protected under Article 7(3). Refer First Schedule Part III Item No.3 under "Ordinances promulgated by the President". The said protection continued in the Constitution of Pakistan, 1973, as provided in the first Schedule under Article 8(1) and (2) of the Constitution. The Constitution of 1973 was suspended by General Muhammad Zia‑ul‑Haq, who on 5th July, 1977 promulgated Martial Law in the country which remained in force till 29th December, 1985. During suspension of the said Constitution, Federal Shariat Court was established~ under the Constitution by Presidential Order, but the consideration of Muslim Family Laws Ordinance, 1961 was excluded from its jurisdiction as to whether it was repugnant to the Injunctions of Islam as laid down in the Holy Qur an and Sunnah, which position of law still continues, even after the lifting of Martial Law. As on 30th December, 1985, the said Constitution of 1973, by Revival of the Constitution Order (P.O. No.14) with a number of amendments, was revived. The said Ordinance, again, finds place in the First Schedule,Part 11, item III under "Ordinances promulgated by the President" in the list of laws exempted from the operation of Article 8(l) and (2). Article 8 reads as under:‑ 18. (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void. (3) The provisions of this Article shall not apply to,‑‑ (a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or (b) any of the (i) laws specified in the First Schedule in force immediately before the commencing day or as amended by any of the laws specified in that Schedule; (ii) other laws specified in, Part I of the First Schedule; and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter. (4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in Part II of the First Schedule into conformity with the rights conferred by this Chapter: Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months. Explanation. ‑‑If in respect of any law Majlis‑e‑Shoora (Parliament) is the appropriate Legislature, such resolution shall be a resolution of the National Assembly. (5) The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution."

27. Under clause (3)(b) of Article 8 exceptions have been made in respect of a number of laws, as mentioned in the First Schedule which includes the Muslim Family Laws Ordinance, 1961. Such laws cannot be declared as void on the ground of inconsistency with or repugnancy to any provision of Chapter 1 of Part 11 of the Constitution, i.e. the fundamental rights enumerated in and guaranteed by the', Constitution. So, the argument that the said Ordinance is open to be challenged on the ground that it infringes the fundamental rights of a citizen to profess and practice his religion and is, therefore, hit by Article 20 of the Constitution, 1973 does not appear to be convincing.

28. To consider the plea of the counsel for the respondent under Article 20 read with Article 2‑A, I considered it proper to issue notice to the Attorney‑ General of Pakistan and notices, in the form of request, to Mr. Wajihuddin Ahmad, Advocate‑ General, Sind and Mr. Khalid M. Ishaque, Advocate to appear on 10‑1‑1988 as amices curiae, by my order dated 23‑12‑1987, which reads as under:‑ "During arguments a plea was raised that provision of section 7 of the Muslim Family Laws Ordinance is against the injunctions of Islam as laid down in the Holy Qur an and Sunnah, and that this Court has got jurisdiction to examine the said provision under Article 2‑A of the Constitution. It is, however, noticeable that the Family Laws Ordinance, 1961 is exempted under Article 8(1) and (2) of the Constitution as per First Schedule appended to the Constitution, 1973, and thus, cannot be challenged on the ground that it contravenes the fundamental right of a Muslim citizen of Pakistan to profess and practice his religion, as guaranteed by Article 20 of the Constitution. A question, therefore, arises: whether the provision of section 7 of the Muslim Family Laws Ordinance relating to Divorce is still available to be challenged under Article 2‑A of the Constitution wherein the Objectives Resolution passed by the Constituent Assembly in March 1949, has been made substantive part of the Constitution. Since the question relates to the interpretation of the Constitution, notice is ordered to be issued to the learned Attorney‑ General for 10‑1‑1988. Notice, in the form of request, may also be sent to Mr. Wajihuddin Ahmad, Advocate‑ General Sind and Mr. Khalid M. Ishaque, as amices curaie, along with a copy of this order." In response thereof, appearance was made by them and I am thankful for the valuable assistance.

29. Mr. Imam Ali G. Kazi, learned Deputy Attorney‑ General submitted that the fundamental right of every citizen of profess, practice and propagate his religion and every religious denomination and every sect thereof to have the right to establish, maintain and manage its religion institution has been made subject to law, public order and morality, as provided in Article 20 of the Constitution. The Muslim Family Laws Ordinance of 1961 is a law as provided in Article 20, which has been protected under Article 80)(b) as named in the First Schedule. He further submitted that guaranteeing the fundamental rights under clause (6) of Article 2‑A has also been made "subject to law and public morality". Therefore, the Muslim Family Laws Ordinance stands protected not only under Article 8(3)(b) but also under the above clause of Article 2‑A. It was further submitted by him that the Constitution being an organic whole, Article 2‑A is not to be read in juxtaposition to Article 8 of the Constitution. However, after some argument, he appeared to be agreeing with the proposition that the said Ordinance or any provision thereof, though protected under Article 8 read with clause (6) of Article 2‑A of the Constitution, can be challenged, if it comes into conflict with any other provision of the Constitution including Article 2‑A, except clause (6) thereof.

30. Mr. Wajihuddin Ahmad, Advocate‑ General Sind, as amices curiae stated that as the question pertained to the impact of Article 2‑A on the Family Laws Ordinance 1961 which was protected under Article 80)(b) he would not be able to assist the Court, in view of the fact that he had rendered an opinion as a lawyer in relation to a similarly' protected statute namely the Rules of Acceding States (Abolition of Privy Purses and Privileges) Order 1972 (President's Order No.XV of 1972). He, therefore, requested to be excused.

32. Mr. Khalid M. Ishaque, Advocate, as amices curiae did not dispute the proposition that the Muslim Family Laws Ordinance is protected under Article 8 of the Constitution, but according to him, it is open to be challenged under Article 2‑A. Having placed reliance mainly on the opening paragraph of the Objectives Resolution, it was submitted by him that the sovereignty belongs to Allah the Almighty alone and the delegated authority is to be exercised by the chosen representatives of the people within the limits prescribed by him. Translating the words 'limits prescribed by Allah the Almighty as "Hudood Allah," he submitted that the words Hudood Allah have occurred at 9 places in the Holy Qur an viz. Surah 11: verses 187, 229 and 230; Surah IV: verses 13 and 14; Surah IX: verses 97 and 112; Surah LVIII, verse 4 and Surah LXV: verse 1, which all relate to family relations and any one who ignores those limits prescribed by Allah is a Transgressor. Naming the Asma Jillani's case P L D 1972 SC 139; Ziaur Rehman's case P L D 1973 SC 49 and Begum Nusrat Bhutto's case P L D 1977 SC 657, it was submitted by him that Objectives Resolution, which was only a preamble to the previous Constitutions has now acquired a new status and has assumed a new importance after its incorporation in the Constitution under Article 2‑A, and, therefore, what was rendered ineffective has now become operative. Thus, the Muslim Family Laws Ordinance though protected under Article 8(3)(b) of the Constitution is challengeable under Article 2‑A of the Constitution if it comes into conflict with it.

33. For an in-depth study of the question it seems necessary to first reproduce below Article 2‑A and the Objectives Resolution:‑‑ "Article 2‑A.‑‑The principles and provisions set out in the Objectives Resolution reproduced in the Annexure are hereby made substantive part of the Constitution and shall have effect accordingly. The Objectives Resolution "Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which he has delegated to the State of Pakistan, through its people. for being exercised within the limits prescribed by Him is a sacred trust; This Constituent Assembly representing the people of Pakistan resolves to frame a constitution for the sovereign independent State of Pakistan; Wherein the State shall exercise its powers and authority through the chosen representatives of ‑the people; Wherein the Muslims shall be enabled to order their lives in &e individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur an and the Sunnah; Wherein adequate provision shall be made for the minorities to profess and practice their religions and develop their cultures; Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed; Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes; Wherein the independence of the Judiciary shall be fully secured; Wherein the integrity of ' the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded; So that the people of Pakistan may prosper and attain their rightful and honored place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity." (Inserted by P.O. No.14 of 1985, Article 2 and Schedule item 53 which effect from March 2, 1985). The Objectives Resolution, looking to its normative content and extent, appears to occupy pivotal position in the Constitution. It envisages the State, inter alia, (i) to exercise its power through the chosen representatives of the people; (ii) to observe the principles of democracy as enunciated by Islam; (iii) to enable the Muslims to order their lives in accordance with requirements and teaching of Islam, as set out in the Holy Qur an and Sunnah; (iv) to make adequate provision for the minorities to practice their religion; (v) to form the existing and future territories into a Federation; (vi) to guarantee fundamental rights, (vii) to safeguard legitimate interests of minorities and backward and depressed classes; (viii) to secure independence of Judiciary; (ix) to safeguard territories of the federation and its sovereign rights. And, above all, 'to exercise Constitution‑ making power (which includes Legislative power as well) within the limits prescribed by Allah Almighty, as a trust. It, therefore, follows that if the delegated power is not exercised by the chosen representatives, or if the Islamic principle of democracy are, not observed, or measures are adopted so as to deprive the Muslims from ordering their lives according to the dictates of the Holy Qur ani and Sunnah, or inadequate provisions are made for the minorities talk profess and practice their religions and develop their cultures, or inadequate provisions are made to safeguard the legitimate interests of minorities and backwards and depressed classes or to curb the independence of judiciary etc. etc.‑‑ all these acts and omissions will amount to disobeying the commandments of Allah and transgressing the limits prescribed by Him in utter disregard to the principles and provisions set out in the Objectives Resolution.

34. It is also noticeable that the Objectives Resolution has 9 clauses, or provisions. Besides, there are two opening and one concluding paragraph. First paragraph is of all‑pervading nature and is of a fundamental importance as it lays down the limits within which the power of Constitution making as well as other legislative powers are to be exercised by the chosen representatives, with particular reference to the 9 clauses or provisions, which all are of mandatory nature. Regarding, Article 2‑A, besides my three judgments, as referred to by the learned counsel for the respondent, as aforesaid, reference may be made to a judgment of Lahore High Court by my learned brother, Muhammad Afzal Lone, J. in Muhammad Sharif v. Member Board of Revenue, Punjab P L D 1987 Lah. 58, wherein it has been observed that "Under the Presidential Order No.14 of 1985, Article 2‑A has been added to the Constitution and there under the Objectives Resolution, made a substantive part thereof. Due to this amendment, the position has radically changed. The Resolution not only provides a guideline for expounding the constitution and true understanding thereof, but occupies a pivotal position in the Constitution and has become a substantive source of power. It is now the obligation of the State to carry forward the establishment of an Islamic Society and exercise its authority to enable the Muslims to order their lives in individual and collective spheres, in accordance with the Injunctions of Islam, as set out in the Holy Qur an and Sunnah. The enforcement of the laws even after these have been adjudged to be repugnant to the Injunctions of Islam, may have the effect of thwarting the develop ment of a socio‑judicial system, having its ultimate basis in the Will of God and thus, defeat the principles enshrined in the Objectives Resolution".

35. As also observed by Mr. Justice Dr. Nasim Hasan Shah, Judge of the Supreme Court of Pakistan in his illuminating Article "The Objectives Resolution‑‑its impact on the administration of justice in Pakistan" P L D 1987 SC 186‑87 that "The condition laid down by Chief Justice Humidor Rahman to enable the Objectives Resolution 'to acquire the same status and authority ‑as the Constitution itself was thus satisfied and the Objectives Resolution converted from a Preamble into a substantive part of the ' Constitution itself, with the result that henceforth any measure which conflicted with "the ideology, aim and the final object of the country and the national could be questioned" .

36. Mr. Justice Dr. Nasim‑Hasan Shah in his latest article, published in P L D (January 1988 Part), Journal section page 1 on "Justice and Islam" again referring to the impact of Article 2‑A of the Constitution stated as under:‑ "The Objectives Resolution which was adopted by the First Constituent Assembly on 7th March, 1949 has become a substantive part of the Constitution and has afforded an opportunity to Courts in Pakistan to administer justice according to the precepts of the Qur an. Until the 30th December, 1985, the Objectives Resolution was nothing more than a preamble to all the Constitutions adopted in Pakistan serving the same purpose as any other preamble to a legal instrument namely, that in the case of any doubt as to the intent of the law‑maker, it could be looked at for ascertaining the true intent but could not control the substantive provisions thereof. But its position underwent a dramatic change when on 30th December, 1985 while lifting Martial law and revising the Constitution of 1973 (by the Revival of Constitution Order, 1985 (P.O. 14 of 1985) it was incorporated into and made a substantive part of the Constitution itself by inserting therein a new provision, numbered as Article 2‑A."

37. The learned Judge further saying that‑‑"The impact of this new Article in the administration of justice in Pakistan has already started manifesting "itself" observed that:‑ "A remarkable transformation in the judicial system is undoubtedly taking place in Pakistan. The old Anglo‑Saxon Legal System hitherto in force is being replaced, slowly but surely by the magnificent edifice of the Islamic Shariah. A fresh dawn is rising and with the help of God justice in Pakistan, will not in the two distant future, be administered only and only by the Laws of Islam."

38. The implications of Article 2‑A, have also been earlier noticed by Mr. Justice Shafi‑ur‑Rahman, in Pakistan v. Public at Large PLD 1987 SC 304 wherein it was observed that: "The subsequent Constitutions continued it till 1985 when by Presidential Order No.14 of 1985 it was incorporated in the Constitution of 1973 as Article 2‑A. The opening words now are as hereunder‑‑ 'Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the Authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust.' The concept of Delegated Authority held in trust enshrined in Verse 58 has invariably and consistently been given an extended meaning. Additionally, all authority being delegated authority and being trust, and a sacred one for that matter, must have well‑defined limits on its enjoyment or exercise. In the Holy Qur an more so, but also both in the Western and the Eastern Jurisprudence delegated authority held in trust as the following attributes: ‑ (i) The authority so delegated to, and held in trust by, various functionaries of the State including its Head must be exercised so as to protect, preserve, effectuate and advance the object and purposes of the trust. (ii) All authority so enjoyed must be accountable at every stage, and at all times, like that of trustee, both in the hierarchical order going back to the ultimate delegate, and at the other end to the beneficiary of the trust. (iii) In discharging the trust and in exercising this delegated authority, there should not only be substantive compliance but also procedural fairness.'

39. With due respect, I may venture to refer to the Quranic verse (Verse 30 of Surah Al‑Baqarah), that is, "I am placing on the earth‑‑one that shall be My deputy", (Tr. Approved by the Supreme Sunni and Shim Councils of the Republic of Lebanon, 1980), portrays the ideal relationship between man and his Creator. Commenting on the above verse, Abdullah b. Umar (d. 791 H.) in his Commentary on the Qurlan Anwar al‑Tanzil wa Asrar al‑Tavil generally known as Tafseer Baydawi Egypt, 1358 H = 1939 A.C. part 1, page 42, giving the purpose and objectives of the above verse writes, it is for enforcement of His Orders. Jalaluddin Syuti in his tafseer Jalalayn printed on the margin of the above Tafseer writes the purpose as that is he should act as My vicegerent in the enforcement of My Injunctions. Muhammad b. Ibrahim al‑Baghdadi (d.725 H) in his Commentary one Qurlan Lubab al‑tanzil ft Ma ani al‑Tanzil generally known as Tafsir al Khazin page 45 writes on the above verse that" that is, and the correct thing is that he (man) has been named as Khalifa for the fact that he is caliph of Allah on this earth for establishing Hudood, (His prescribed Ordinances) and for enforcement of His decisions and orders. Abu Muhammad Al Hussain b. Nlaslud al .Faral al Baghawi (d.516 H.) in his Tafseer al Bagwig known as Ma alim al‑Tanzil, Egypt, 1375 H = 1955 A.C. part I page 45 writes the same thing as written by Khazin except that the words (LAQAMATU-AHKAMEHI) has been used by him instead of (LAQMATUL-HUDOOD).

40. Late Mau Lana Mufti Muhammad Shafi in his Commentary on the Holy Qurlan known as Ma arif al‑Qurlan Karachi, Vol. I, commenting on the above verse writes that: It is further written by him that:

41. It can, therefore, be concluded that Allah, the Almighty created man in the best of moulds to whom He gave the highest position amongst all His creatures inasmuch as that He honored man to be His vicegerent (agent) for the fulfillment of His great trust. Man was given a Will, (here, the word 'Will' is used in the meaning quite distinct from the term 'Will' used in the Muslim Law of Succession), so that all his acts and deeds should reflect Allah's Will and His Commandment. 42. 1 may also quote from a learned article of Dr. Manzooruddin .Ahmad (presently, Vice‑Chanceller, University of Karachi) published in Islamic Studies, by the Central Institute of Islamic Research, Karachi (now based at Islamabad), Vol. 2, 1963, pp.250‑251, providing with a scientific analysis of the Objectives Resolution, as under:‑ "They ('Ulama of Pakistan) focused their 'attention primarily on the problem of Sovereignty. They had, perhaps, observed that the constitutions, particularly those of the Muslim countries, generally incorporated the principles of 'national sovereignty'. But this principle of national sovereignty was found obviously contrary to Islam. However, notwithstanding the repugnancy of this doctrine it was considered to be the pivotal concept of the modern state. Therefore, the problem was to enunciate the Islamic notion of sovereignty which could serve as the foundation stone of the new policy in Pakistan. In redefining the term 'Sovereignty' in its Islamic sense, the ,Ulma seemed to have adopted Mau Lana Mawdudi's Islamic political theory which centered round the concepts of Divine Sovereignty, Khilafah and Theo democracy. According to this view, there cannot be any sovereign in an Islamic state in its modern sense of 'a human determinate superior'. Therefore, they transferred the concept of sovereignty in its political sense to God Almighty and asserted, that in an Islamic state, the final, absolute, unlimited, inalienable and indivisible supreme political power belongs to Allah alone. In order to substantiate Allah's sovereignty in the practical sense they asserted further that an Islamic state must be subject to the Qur an and the Sunnah as the expression of the Divine Will. This statement alone could not constitute a logical theory of Islamic state; therefore, they introduced the Islamic notions of 'delegation' and 'trust' in order to reconcile the moral sovereignty of Allah with the political sovereignty of the people. All authority, according to them, exercise able by the state or people, is mandatory by nature as it constitutes a trust from Allah. People were only Allah vicegerent on earth; the authority that the people exercise is limited by the limits prescribed by Him. These limits were to be found in the Qur an and the Sunnah. This theory had two significant implications: first, that the sovereignty of Allah connoted, for all practical purposes, the sovereignty of the Divine Law (Shariah); this further implied (i) that no legislature could make laws repugnant to the Qur an and the Sunnah; and (ii) that Islam does not recognize sovereignty of the fictitious person of the state in its modern sense. This way the term 'Sovereignty, used in its contemporary political‑ science sense was given a new theological interpretation in Islamic terminology."

43. It is stated by General Muhammad Zia‑ul‑Haq in his address on "Introduction of an Islamic System" included in the book "Islam in Transition" edited by Johns Donohue and Esposito, Oxford University Press, New York, 1982, p.272 that‑‑ "Islam occupied a pivotal position in the Objectives Resolution adopted by the First Constituent Assembly after the establishment of Pakistan. The twenty‑two points prepared by the ulema (religious scholars) of various schools of thought also correctly determined our goal. The Constitutions of 1956 and 1962 also recognised the basic relationship between Islam and Pakistan. Again in the 1973 Constitution the same relationship has been preserved. All major political parties despite their other differences are agreed that the Islamic system should be introduced in this country. This makes it amply clear that the ideology for which this nation had achieved Pakistan is intact and our people are determined to see this ideology permeate their day‑to‑day life. It is Allah's beneficence that the present Government has been able to fulfill these aspirations of the people

44. Daniel Crecelius, Professor of History, California State University, Los Angeles, in his Article on "The Course of Secularization in Modern Egypt, writes that‑‑ "Islam is a revealed religion, hence the community (the ummah) is divinely ordered and guided, Allah's desires being revealed to mankind in the sacred Qur an and the Sunnah (traditions) of the Prophet the ruler, whether Caliph or Sultan, was charged with insuring the application of the sacred law in the community. In theory the ruler and the state were subject of the law The only sovereignty was that of Allah (Islam and Development, edited by John L. Esposito, Syracuse University Press, 1980 New York, p.50).

45. Sharifuddin Pirzada, a former Law Minister and Attorney General of Pakistan in his book, Fundamental Rights and Constitutional Remedies in Pakistan, Lahore, 1966, p. 75, commenting on the Objectives Resolution, which was then a preamble to the Constitution of Pakistan, 1962, wrote that‑‑ "The Preamble of our Constitution like that of the Constitution of Eire, enunciates that sovereignty over the entire universe belongs to Almighty Allah alone and the authority exercise able by the people within the limits prescribed by Him is a sacred trust and like the Preamble of the Chinese Constitution it gives recognition to the injunctions of the founder of the State. Quaid‑e‑Azam Muhammad Ali Jinnah had declared that Pakistan should be a democratic State based on Islamic Principles of Social justice. Quaid‑e‑Azam stood for guarantee of Fundamental Rights. After stating that Pakistan will be a federation, the Preamble records that it is the will of the people of Pakistan, that, among others, the principles of democracy, equality, tolerance and social justice as enunciated by Islam, should e fully observed in Pakistan and that the Fundamental Rights should be preserved and the independence of judiciary should be ensured." 45‑A. By insertion of Article 2‑A in the Constitution of Pakistan the Objectives Resolution of 1949 which was initially inserted as preamble .to the Constitution of 1973 as also in 1956, 1962 and 1972 Constitution. has been accorded enforcibility. The Supreme Court in the case of Asma Jilani P L D 1972 SC 139 in the absence of any Constitution, then in Pakistan, declared the resolution to be ground norm of the State. However, in the case of State v. Ziaur Rehman P L D 1973 SC 49 when Interim Constitution of 1972 had been introduced the Supreme Court declared that once a formal constitution had been lawfully adopted and generally accepted by the people, the judiciary could not claim to declare any of its provisions ultra virus or Void because of conflict with the laws of God or of Nature or of Morality or some other declaration which the peoples themselves may have adopted (pages 71, 72, 73). In the same case the Supreme Court further declared that even non‑constitutional provisions if incorporated in the Constitution stand on the same footing as strictly constitutional provisions (page 66).

46. The Objectives Resolution having now been accorded enforcibility by virtue 'of Article. 2‑A of the Constitution the sovereignty of Allah and the enforcibility of the Holy Qur an and of the Sunnah of the Holy, Prophet stand acknowledged by the Constitution itself. This proposition is also augmented by the fact that Article 2‑A is preceded by Article 2 which declares Islam to be the State religion of Pakistan and is further preceded by the Preamble of the Constitution incorporating the Objectives Resolution. In this scheme and order of things, it becomes evident that all laws prevailing in Pakistan are firstly to conform to the Constitution whereas the Constitution and all such laws are then amenable to be tested on the touchstone the really prevails and, the Qur an and Sunnah, if sovereignty of Allah, the law of the Qur an and Sunnah is really supreme.

47. It will thus, follow that while the protected laws covered by Article , 8 jibed, prima facie, qualify the test of the Constitution , nonetheless, all such laws have to qualify another test, namely their conformity to the Holy Qur an and Sunnah. In the event, any provision in apply such protected. legislation is found to be in derogation of their Holy Qur an and Sunnah the Courts in Pakistan on reaching a conclusion to this effect would be., bound to ignore and overstep such a provision as the same does 'not conform to the Supreme Law of Almighty Allah. The conclusion is further fortified by the fact that Article 2‑A is a later introduction in terms of time than the protection granted by Article

8. According to ordinary canons of interpretation an earlier law is subject to a later law and if validation cannot stand on the touchstone of the later law which is also declared to be supreme then it follows that the validation or protection to the extent of inconsistency is ineffective. An exception was, however, made to this rule as provided in the provision of clause (1) of Article 270‑A by Inserting the word 'notwithstanding anything contained in the Constitution, at the time of insertion of Article 2‑A in the Constitution, which is, absent from Article 80(3).(b).

48. Now, looking to the Muslim Family Laws Ordinance, It is a settled proposition of law that Constitution is the fundamental and Supreme Law of the land and all laws are subservient to it. It, I therefore, follows that if there be a law which is not in conformity with the Constitution, it must, in its application to a particular case, yield to the Supreme Law, that is, the Constitutional provision. Thus, notwithstanding the legal position that the Muslim Family Laws Ordinance, 1961 overrides any other law or custom having the force of law, it remains subservient to the Constitution to the extent that it is inconsistent with, or comes into conflict with any provision thereof ‑No doubt, the Ordinance is protected under Article 80)(b) from application of Article 8(1) and (2). Clause (6) of Article 2‑A of the Constitution may also be invoked in aid, and, thus, is not challengeable on the ground that it violates any of the fundamental rights enumerated in and guaranteed by the Constitution, but it is still available to be challenged under any of the provisions of the Constitution, particularly the principles and provisions of the Objectives Resolution (except clause (6) thereof) as made substantive part of the Constitution under Article 2‑A and, in view of the provisions of Article 2.‑A, making the Objectives Resolution as substantive part of the Constitution, "any Court, Tribunal or authority required or empowered to enforce an "existing law" is now obliged under Article 268 of the Constitution "to construe the same with all such adaptations as are necessary to bring it into accord with the provisions of the Constitution. The provisions of the Muslim Family Laws Ordinance, thus, do not stand, immune except for the protection provided under Article 8(3)(b) of the Constitution itself. Any provisions of the said Ordinance, thereof. can be challenged‑ to the extent that it comes into conflict with the provisions of Article 2‑A of the Constitution, except clause (6) thereof relating to the fundamental rights.

49. Testing section 7 of the Muslim Family Laws Ordinance, in particular, on the touchstone of Article 2.‑A (read with the Objectives Resolution) it appears that, for detailed‑ reasons which will following shortly, it violates the limits prescribed by Allah Almighty as stated in the opening paragraph of the Objectives Resolution add is in conflict with clauses (2) and (3) of the said Resolution inasmuch as it violates the principles of social justice enunciated by the Qur an and Sunrah, and disables the Muslims to order their lives, in accordance with the teachings and requirement of Islam, as set our in the Holy Qur an and Sunnah. It may be mentioned that the Holy Qur an gives special place and treatment to family relations and greater number of injunctions are to be found in the Holy Qur an on the said subject than any other subject. The reason is obvious. 'The family is a basic social institution and cornerstone of the development of It human society. 50. 1 may, however, say that in the light of the aforesaid discussion, Vamp not, at the moment, called upon to examine the said Ordinance in its entirety. It is only section 7 of the Ordinance relating to divorce which is pertinent to the case. I will, therefore, confine myself to the examination, of section 7 only, in the light of Holy Qur an and Sunnah. The section reads as under‑‑ "Section 7'. Talaq.‑‑(I) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of' Talaq in any form whatsoever, give the Chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife. ( 2) Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for ‑a term which may extend to one year or with fine which may extend to five thousand rupees or with both. (3) Save as provided in subsection (5) Talaq unless revoked earlier, expressly or otherwise, shall not the effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman (4) Within thirty days of the receipt of notice under subsection (1) the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the pat‑ties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation. (5) If the wife be pregnant at the time Talaq is pronounced, Talaq shall not be effective until the period mentioned in subsection (3) or the pregnancy, whichever later, ends. (6) Nothing shall debar a wife whose marriage has beer terminated by Talaq effective under this section from re‑marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.

51. At the outset, I may refer to the decision of the Honourable Supreme Court in the case of Syed Ali Nawaz Gardezi v. Lt. ‑ Col. Muhammad Yousuf P L D 14J63 S C 51, wherein the question of section 7 of the Ordinance, for the first time, came up, before that Court for consideration of the question as to whether the provisions of section 7 of the Ordinance relating . to divorce were strictly in conformity of Islamic Law? Justice S.A. Rahman, who wrote the judgment (and the other four learned Judges, A‑R. Cornelius, C.J. , Fazl‑e‑Akbar, J. , B.Z. Kaikaus, J. , and Hamoodur Razman, J. concurring), observed. that "it is a question which does rot fall within the province of this Court by reason of Articles 5 arid 6 of the Constitution." Now ‑the said position, in my humble view, has undergone a change by virtue of Article 2‑A.

52. A bare reading of section 7 of the Ordinance reveals that‑‑ It has been made compulsory to inform in writing the Chairman of the Union Committee after pronouncing Talaq to the wife. (1) It is not concerned with any particular form of Talaq. It may be in any form whatsoever. (III) No time limit has been prescribe for giving ‑ such notice. (iv)However, 9 the notice is not given by the person concerned he shall be punished with simple imprisonment for a term which may extend to one year or with fine which may extend to five .thousand rupees or with both. (v) Within 30 days of ‑the receipt of the notice the Chairman shall constitute an arbitration council for reconciliation between the spouses.. Each of the spouses will nominate his/her representative on the Arbitration Council. (vi) The Talaq shall not be effective until the expiration of 96 days from the date on which the required notice is delivered to the Chairman and if the wife be pregnant at the time Talaq is pronounced, the Talaq shall not be effective until expiry of 90 days from the date on which the required notice is delivered A to the Chairman or the pregnancy. ends, whichever is later. (vii) A wife whose marriage has been terminated by talaq, effective as aforesaid, will be free to remarry the same husband without an‑ intervening marriage with a third person, unless such termination is for 3rd time so effective. As regards forms of Talaq recognized by different Muslim sects they may be staled as under : (1)Talaq al‑Sunnah: It is a Talaq according to rules of tradition which is pronounced in the manner approved by the Holy Prophet (Muhammad Sallalahualaihe wa Salam). Pronouncing such a Talaq, however, does not mean that it is an act of piety and that it will entitle one to the reward of a virtuous act. Talaq in itself is not an act of devotion that some reward of a virtuous act may be expected out of it. Talaq al‑Sunnat only means that a talaq pronounced by that procedure ‑has the approval of the Holy Prophet and his Companions and the pronouncing of Talaq contrary to that manner and procedure is disapproved and is sinful. Talaq al‑Sunhat is again classified into two forms: ‑ (a) Talaq al‑Ahsan (Most approved form of divorce), (b) Talaq al‑Hasan, (Proper form of divorce) (A) Talaq al‑Ahsan is the first kid of Talaq completed by efflux of prescribe time. In the case of this Talaq one single revocable divorce is pronounced by a husband who has consummated the marriage, during the period in which the write' is free of menstruation and in which she has not been cohabited with, leaving her to complete her iddat of the prescribed period of time unless she is pregnant 'in which case she is delivered of, the child. Talaq al‑Ahsan is based on the narrative of Ibrahim Naki that the companions of the Holy Prophet approved of the divorce which was ponounced once to the wife, thereafter she was left alone till she completed three periods of her menstruation if she menstruates otherwise three months. Imam Muhammad has laid down in his book Muwattat that Talaq al‑Sunnat is that which the husband ponounces to his wife, keeping in view the period of her probation, in the state of her purity, without having sexual intercourse with her in that state of her purity, which she attains after her menstruation. That is the formulation of Imam Abu Hanifah and of Hanafi jurists in general. Reference is made to‑‑‑ Al‑Shaybani, Imam Muhammad Muwatta, Karachi, Kitabal‑Talaq, p.250 (b) Talaq al-Hasan is the second approved form of divorce by a husband who has consummated the marriage, pronounces one divorce during each of the three successive periods in which id t the wife, free of menstruation, has not been cohabited with.'there is no disagreement about Talaq al‑Ahsan being a divorce in accordance with the id down in the tradition of the Prophet. There is however disagreement whether Talaq al‑Hasan is in accordance with the rules laid down in the tradition of the Prophet The Hanafis base their formulation on the verse if Quran is that you divorce them at their term of probation.", That is three divorces are to be pronounced in three periods of purity. The 'Hanafis in support of their interpretation of the verse cite the incident of 'Abdullah State He divorced his 'Wife in the state of her menstruation. Umar consulted the Prophet a bout this act of his son. The Prophet expressing some anger said, Abdullah has contravened sunnat (method, mode) ordained by Allah" and added, proper in each period of divorce is that which you, pronounce one purity. Reference is made to ‑‑‑‑‑ (2)Talaq AL-Bid at‑‑The innovated divorce which is‑ also called impious divorce. Pronouncing such divorce is sinful. The innovation or impiety lies in two ways (a) as regards time and (b) as regards number.

53. As regards time, if a revocable divorce is pronounced at a time when the woman is in menstruation, it will be said to be an innovated divorce. In such a case it has been held incumbent upon the husband to have recourse to his wife. Burhan al‑Din Marghinani, the author of Al‑Hidayah has explained why in ‑the divorce which is pronounced during menstruation having recourse to the wife is incumbent. He says that the intrinsic meaning of the injunction regarding divorce as contained therein may be duly observed and as far as possible committing gin may be avoided, and the wife, too, may not suffer from the agony of observing a longer term of probation. The necessity of having recourse to the wife, in the event of divorce during menstruation, is supported by the authentic report that when Hazrat Abdullah b. 'Umar divorced his wife during her menstruation and Hadrat 'Umar consulted the Holy Prophet about it, he replied, "Ask him Abdullah b. 'Umar to have recourse to his wife", as under: ‑ AI‑Shaybani: Muwatta, Karachi, Kitab al‑T.alaq, Chapter on Talaq al‑Sunnah p.250. As regards effectiveness of divorce pronounced during menstruation the impiety of divorcing one's wife during menstruation lies in the fact that the man does not have, as it is natural, inclination towards woman at such time. Besides, the term of probation is lengthened by so doing, because the menstruation period in which the divorce is pronounced is not taken into account and the woman is unnecessarily put into trouble.

54. As regards number talaq is effected by pronouncing the word Talaq thrice at one and the same time by repeating the word three times talaq, talaq, talaq or, say "three talaq'I during the same Tuhr or in pronouncing, the formula of three talaq only once by simply using the words to the wife "I divorce thee thrice" or "three times". The Talaq‑al‑Did"at is the most common and prevalent form of divorce in Indo‑Pak sub‑continent. However, according to all the four schools of law (Hanafil, Malikili, Shafili and Hanbali) the divorce pronounced during menstruation is effective, On the other hand, according to Shi ah sect the divorce pronounced during menstruation is not effective. In this regard I may refer to the famous book on Shi ah fiqh, Sharali al‑Islam, (Iran, Pt.111, p.209) by Naimuddin Abu Jalfar AI‑Hilli, who stated that "the renouncement of three divorces in which there is no opportunity of having. recourse to wife, pronouncement of divorce during such period of purity of the wife in which the husband has had sexual intercourse with her, are, according to Shilah sect, void. Such divorce does not take effect." Since the parties before me belong to the Shilah sect, further discussion on the pronouncement of Talaq al‑Bidlat whether the same is in accordance with the Injunctions of Islam as laid down in the Holy Qur an and Sunnah, for purpose of the instant case, is beside the Point and. thus, I am not called upon to express my view thereon. It may, however, be stated that the Muslim Family Laws Ordinance makes no such distinction. Even if the three Talaqs pronounced all that once, which are considered as void under Shia law, will be reckoned as one revocable divorce under the Ordinance, as against the Hanafl' Law which treats them effective as three and thus irrevocable.

55. So far as the requirement of written intimation of the said divorce to the Chairman is concerned the underlying purpose seemly to be resolving the differences in the light of the Verse 35 Surah AI‑Nisal of the Holy Qurlan, which reads as under:‑ "If ye fear a breach Between them twain, Appoint (two arbiters, One from his family, And the other from hers, If they wish for peace, Allah will cause Their reconciliation: For Allah hath full knowledge, And is acquainted With aI1 things. " I may also quote below Verse 34 which reads: Men are the protectors And maintainers of women, Because Allah has given The one more (strength) Than the other, and because They support them From their means. Therefore, the righteous women Are devoutly obedient, and guard In (the husband's) absence What Allah would have them guard. As to those women On whose part ye fear Disloyalty and ill‑conduct, Admonish them (first) (Next), refuse to share their beds, (And last) beat them (lightly) But if they return to obedience, Seek not against them Means (of annoyance) For Allah is Most High, Great (above you all). It may be pointed out that the above two verses of the Holy Qur an relate to a situation which may arise prior to the pronouncement old" divorce. They inter alia, provide that men are the maintainers and protectors of women. Good and virtuous women are obedient to their husbands to abide by all lawful acts. If, however, a wife shows signs of a rebellion, the husband may adopt proper measures to mend her ways. And if it is feared that there is going to be any breach between the spouses an Arbiter from husband's‑folk and an Arbiter from the wife's‑folk be appointed so that they make a reconciliatory effort. If an extended meaning is given to Verse 35, it may perhaps also be made applicable to a situation where a revocable Talaq has been pronounced by the husband. However, for furthered discussion at an appropriate place', the effectiveness of Talaq ' pronounced by him, cannot in any case, be made dependent on the receipt of notice by the Chairman as provided in section 7 of the Ordinance. The waiting period (Iddat) begins to run immediately on pronouncing a valid Talaq by husband. In fact, the verse (S.11:237) clearly shows that it is the husband in whose hand is the marriage‑tie. It is, thus, evident that the right of divorce granted to husband is in no way tied with or made conditional or contingent upon giving notice of the said Talaq to any council or a Court of law or getting its confirmation from any such council oral the Court. It seems advantageous to reproduce below the provisions of Talaq as laid down in the Holy Qur an (excluding the provisions 208 Karachi All Pakistan legal Decision relating to Ila, Zihar and Li an) as found in the Holy Qur an ' which cover almost the entire Qur anic law of Talaq , as under:- But . if their intention Is firm for divorce, Allah heareth And knoweth all things. (11:227) Divorced women Shall wait concerning themselves For three monthly periods. Nor is it lawful for them To hide what Allah Hath created in their wombs, "K they have faith In Allah and the Last Day. And their husbands Have the better right To take them back In that period, if They wish for reconciliation. And women shall have rights Similar to the rights Against them according To what is equitable equitable; But men have a degree (Of advantage) over them And Allah is Exalted in Power Wise A. divorce is only Permissible twice after that Of The parties, should either hold Together on equitable terms Or separate with kindness. It is not lawful for you, (Men), to take back Any of your gifts (from your: Wives') Except when both parties Fear that they would be Unable to keep the limits Ordained by Allah. If ye (judges) do indeed Fear that they would be Unable to keep the limits Ordained by Allah, There is no blame on either Of them if she give Something for her freedom. These are the limits Ordained by Allah; So do not transgress them. If any do transgress The limits ordained by Allah, Such person wrong. (Themselves as well as others). So if a husband Divorces his wife (irrevocably), He cannot, after that, Remarry her until After she has married Another husband and He has divorced her. In that case there is No blame on either of them If they reunite, provided They feel that they Can keep the limits Ordained by Allah. Which He makes plain To those who understand. When ye divorce Women, and they fulfil The term of their (lddat), Either take them back On equitable terms Or set them free On equitable terms; But do not take them back To injure them or to take Undue advantage; If anyone does that, He wrongs his own soul. Do not treat Allah's Signs As a jest, But solemnly rehearse Allah's favours on you And the fact that He Sent down to you The Book And Wisdom, For your instruction. And fear Allah, And know that Allah Is well‑acquainted With all things When ye divorce Women, and they fulfil The term of their (Iddat), Do not prevent them From marrying Their (former) husbands, If they mutually agree On equitable terms. This instruction Is for all amongst you, Who believe in Allah And the lst day. That is (the course Making for) most virtue And purity amongst you, And Allah knows, And ye know not. (11: 232) If any of you die And leave widows behind, They shall wait concerning themselves Four months and ten days When they have fulfilled Their term, there is no blame On you if they dispose Of themselves in a just And reasonable manner. And Allah is well‑acquainted With what ye do. (11:234) There is no blame On you if ye make An offer of betrothal Or hold it in your hearts. Allah knows that ye Cherish them in your hearts: But do not make a secret contract With them except in terms Honourable, nor resolve on the tie Of marriage till the term Prescribed is fulfilled. And know that Allah Knoweth what is in your hearts And take heed to Him; And know that Allah is Oft Forgiven, Most Forbearing. (11:235,) There is no blame on you if ye divorce women Before consummation Or the fixation of their dower; But bestow on them (A suitable gift), The wealthy according to his means And the poor According to his means a gift of a reasonable amount Is due from those Who wish to do the right things. (11:236) And if ye divorce them Before consummation, But after the fixation Of a dower for them Then the half of the dower (Is due to them), unless They remit it, or (the man's half) is remitted By him in whose hands Is the marriage tie, And the remission (Of the man's half) Is the nearest to righteousness, And do not forget Liberality between yourselves. For Allah sees well All that ye do. (11:237) For divorce women Maintenance (should be provided) On a reasonable (scale). This is a duty On the righteous. (11:241) Thus, doth Allah Make clear His Signs To you: in order that Ye may understand. (11:242). 0 ye who believe! When ye marry believing women, And then divorce them Before ye have touched them, No period of 'Iddat Have yet to count In respect of them: So give them a present, And set them free In a handsome manner. (XXXIII: 49) O Prophet when ye Do divorce women, Divorce them at their Prescribed periods, And count (accurately) Their prescribed periods: And fear Allah your Lord And turn them not out Of their houses, nor shall They (themselves) leave, Except in case they are Guilty of some open lewdness. Those are limits Set by Allah: and any Who transgresses the limits Of Allah, does verily Wrong his (own soul): Thou knowest not if Perchance Allah will Bring about thereafter Some new situation. (LXV:l) Thus, when they fulfil Their term appointed Either take them back on quitable terms And take for witness Two persons from among you, Endued with justice, And establish the evidence (As) before Allah. Such Is the admonition given To him who believes In Allah and the last day: And for those who fear Allah, He (ever) prepares A way out. (LXV:2) Such of your women As have passed the age Of monthly courses, for them The prescribed period, if ye Have any doubt, is Three months, and for those Who have no courses (It is the same); For those who carry (Life within their womb) Their period is until They deliver their budens: And for those who Fear Allah, He will Make their path easy. (LXV:4) That is the Command Of Allah, which He Has sent down to you And if any one fears Allah, He will remove his ills From his and will enlarge His reward. (LXV:5) Let the women live (In liddat,) in the same Style as ye live, According to your means Annoy them not, So as To restrict them. And if they carry (Life In their wombs), then Spend (your substance) on them Until they deliver Their burden and if They suckle your (offspring), Give them their recompense: And take mutual counsel Together, according to What is just and reasonable. And if ye find yourselves In difficulties, let another Woman suckle (the child) On the (father's) behalf. (LXV,: 6) The words (1) AZMUL TALAQ (2) FAN TALKHAMA (3) AZALTALAKTUM (4) TALAKTUMUHAN occurring in the verses, above quoted, are clear manifestation of the power of the husband to pronounce talaq, without an intervention of any Court or tribunal. Had it been dependent on the decision of any Court or tribunal, there, at least, would have been an indication to it in the Qur an or Sunnah. (The authority of the Court to dissolve marriage on the causes recognized by Sharfah is quite distinct.) The council of arbitrators constituted . under section 7(4) has no power or authority of effecting separation between the spouses. It seems that it is largely the result of the employment of the word "Arbitrator" in the said subsection, which has introduced in a great number of minds the feeling or impression that judicial functions have been assigned to the Chairman of the Union Committee or the Council of Arbitrators for purposes of enquiring into the talaq, whereas the arbitrators of themselves have no authority of effecting separation between the couple. The literal meaning of the said word Arbitrational which appears to have been used by the framer of the Ordinance for the word Hakam as occurred in Verse 35 of Surah 11, stands for several meanings. In general, it means "Official" or a "Judge" or an "Arbitrator (Ibn Kathir Al‑Nihayah, Vol.1, p.280). The meaning of Hakam has also been denoted as Judge (Al‑Zubaydi, in Taj al‑'Usus, Vol. 111, pp.353‑

54. Imam Raghib in his famous work, Al‑Mufradat Fi Gharib al‑Qurlan (Urdu Tr.), Lahore, p.237, has said that the real meaning of Hakam is to restrain something with a view to reform it. In Al.‑Muhalla, Cairo, Vol. X, p.87, Ibn Hazm says that when a quarrel arises between husband and wife the official shall appoint one arbitrator from the family of the husband and another arbitrator from the family of the wife. I may now refer to the learned observation of Justicel A.R. Cornelius (as he then was) in a Full Bench case, Sayeeda Khanum v. Muhammad Semi PLD 1952 Lahore 113, on the meaning and scope of the word Hakam (arbitrator) as used in Verse 35 of Surah Al‑Baqarah. He said "Giving, then, the radical meaning to the word Hakam (arbitrator) and bearing in mind the possibility, may be the probability, that there could never be an intention of confusing jurisdictions, or providing more than one authority, at the same time, to be seized of a particular matter (in this case the question whether the spouses were to be separated), I am of the opinion that the meaning of the word, Hakam, which should be accepted for the purposes of placing a correct interpretation upon Verse 35, is that which is in contradistinction with the judicial function. Having regard again to the organization of society among the people to whom this Scripture was revealed, viz., on a tribal and family basis, it becomes reasonably possible that by 'Hakam' is meant persons from the tribes of the respective spouses who exercises authority over the members of their tribes in such a way that they are capable of restraining such persons from acting in any particular way, or from acting wrong and such persons could only be those who were acknowledged heads of the tribe, i.e. the legitimate chiefs or otherwise the elders of the tribes .... If this differential sense be applied to the word 'Hakam, as V employed in Verse 35, it becomes possible to perceive the nature of the direction with clarity and without any possibility of caseins confusion of jurisdictions. The learned Judge thus, arrived at the conclusion that the arbitrators by themselves have no power to get the separation effected between the married couple. Though the above observation was made in a different context, vet the same is fully applicable and true to the interpretation of the power of the arbitrator or the Arbitration Council constituted under subsection (4) of section 7 of the Ordinance, as Verse 35 of Surah 11 was, perhaps, present in the mind of the framer of said Ordinance. But the verse refers to a situation before the pronouncement of Talaq.

56. As regards the keeping of effectiveness of divorce in abeyance for ninety days and that the ninety days to begin from the date of the receipt of its notice by the Chairman, it seems to be against the injunctions of Islam. Suppose, the husband after pronouncing divorce to his wife does not give the written intimation to the Chairman. The W divorce pronounced, according to the Qur an and Sunnah, becomes operative on pronouncement, whereas under section 7 above the said divorce will not take effect at all. The case in point is that of Stat v. Tauqir Fatima P L D 1964 Karachi

306. The wife, Tauqir Fatima in that case, filed an application under section 488, Cr.P.C. against her husband for her maintenance. The Magistrate granted her application on 14‑11‑1960 and ordered the husband, Shamsul Hasan to pay Rs.50 in cash, per month to the wife as ' her maintenance allowance. The husband, therefore, filed an application before the Magistrate on '6‑9‑1962 to the effect that he had pronounced three irrevocable divorces to ' his wife and had tried to give a written information about it to the wife who refused to receive the same. He filed a copy of the written information and maintained that he divorced her that day. He prayed the order passed for the maintenance dated 14‑11‑1960 be, therefore, amended (i.e. the order for payment of maintenance allowance after expiry of the term of 'Iddat as on 6‑12‑1962 be cancelled). The lower Court accepting the prayer of the husband, passed orders for paying the maintenance allowance only till the period of observance of her term of 'Iddat. On Revision filed by the wife and thereafter on the Reference made by the Provisional Court, the High Court held that as under section 7 of the Family Laws Ordinance no notice was given to Chairman, and the divorce pronounced could take effect only after ninety days of the receipt of the notice, therefore, divorce pronounced, according to husband, on 6‑12‑1962 remained ineffective (because no notice of Talaq had been given to the Chairman, Union Committee of the area). This is exactly how the Ordinance contravenes the provisions of the Islamic Law it is supposed to rationalize. The fact that the husband had pronounced divorce to his wife according to the tenets of Islam is patently clear, but the husband's failure to give notice to the Chairman, the said pronouncement of divorce was held to be ineffective and regular payment of maintenance allowance to the wife incumbent.

57. In the case of Inamul Islam v. Mist. Hussain Bano and others P L D 1976 Lahore 1466 a learned Single Judge of the Lahore High Court, also, held thus: "I do not agree that the service of copy of the notice under subsection (1) of section 7 of the Ordinance is not essential to make a divorce effective. There are three important requirements under subsection (1) of section 7: (i) pronouncement of Talaq in accordance with Muslim Law; (ii) service of the notice on the Chairman; and (iii) service of copy of the notice on the wife. If any one of these conditions is not satisfied, the Talaq would not become effective even after ninety days. The supply of copy of the notice of Divorce to the wife is a necessary pArt of the requirement of service of notice on the Chairman. Similarly, the provision is clear that the notice to the Chairman shall have to follow a pronouncement of Talaq. Thus, that is also a mandatory requirement".

58. The same learned Single Judge of the Lahore High Court in another case Rashida v. Ghulam Raza and others P L D 1977 Lahore 363 observed: "The learned Family Judge held that the Talaq as described in the divorce deed (Annexure 1131) was Talaq‑ul‑bidlat. He also held that respondent being a Shi ah, such a Talaq could not operate as divorce. I agree that the Talaq could not be treated as talaq‑ul‑bid at with all its necessary consequences; but I do not agree with him on the question that it was no talaq at all. Subsection (1) of section 7 of the Ordinance provides that the 'pronouncement' of talaq after the enactment of the Ordinance, could be "in any form whatsoever". The intention of the law‑makers, it appears, was that even if the Talaq is in any particular form including bidlat, it will have effect in accordance with the provisions contained in section

7. The special consequences of Talaq‑ul‑bid at would be removed and the Talaq simplicities in question, in this case, would become effective on the expiry of 90 days after the receipt of notice by the Chairman unless revoked earlier (see subsection (3) of section 7) Thus talaq having been pronounced on 15‑10‑1969 through a jointly executed divorce deed (Annexure B), it would normally have become effective on the expiry of 90 days after the receipt of notice by the Chairman".

59. It was further observed by the learned Judge: "Howsoever, short the time‑lag between the two acts of pronouncement and sending the notice may be, yet the intention of the law‑makers was that as the term "pronouncement" has not been defined in the Ordinance, therefore, the ordinary Muslim Law on pronouncement of a divorce shall continue to apply notwithstanding the provisions of Muslim Family Laws Ordinance. For example if a wife denies or disproves the two essential requirements one, pronouncement of Talaq and two, the receipt of the copy of the notice by her; then notwithstanding the fact that the husband is able to prove the third requirement namely, that he gave the Chairman "a notice in writing of his having done so" (i.e. pronouncement of the Talaq), pronounced the Talaq, the mandatory provision of subsection (I) of section 7 would not be deemed to have been complied with".

60. In the case of Mrs. Parveen Chaudhry it was held by a Division Bench of this Court comprising of Abdul Hayee Kureshi and Fakhruddin G . Ebrahim, JJ. (as they then were) that "in regard to the validity of the divorce we have no hesitation in expressing our confirmed opinion that under the Muslim Personal Law as well as the Ordinance no mode is prescribed for pronouncement of divorce. It is established law that a Muslim can pronounce a divorce orally or convey the divorce in writing. In fact, under the Muslim Personal Law a divorce in writing became irrevocable as soon as the same was written but the Ordinance has made inroads into the Muslim Personal Law by providing a machinery and procedure for confirmation of the divorce and postponement of its effect for 90 days. We may also examine the provisions of subsection (1) of section 7 in such context and the conclusion is inescapable that this provision only provides for giving a notice of talaq to the Chairman and a copy thereof to the wife. Subsection (2) of section 7 makes the position further clear by providing a punishment for contravention of provisions of subsection (1). As stated above,. the only impediment to immediate effectiveness of the divorce is information to the Chairman and the forming of the Arbitration Council. To such extent it is very clear to us that the mere fact of absence of communication of the divorce before moving the Chairman under subsection (1) of section 7 of the Ordinance does not invalidate the divorce."(P L D 1976 Karachi 416).

61. A question in the said case arose: whether divorce by Khula or Mubarat, without any notice given to the Chairman, as contemplated by section 7 of the Muslim Family Laws Ordinance, is effective or not? According to Lahore High Court in Muhammad Ishaq v. Ahmad Hasan P L D 1975 Lahore 1118, notice seems to be necessary whereas according to Karachi Bench in the case of Parween Chaudhry P L D 1976 Kar. 416, "absence of notice does not affect the validity of divorce by Khulal and Mubarat".

62. N.J. Coulson, a well‑known English writer on Islamic Law has also dealt with this aspect of Pakistan Family Laws Ordinance. He writes: "Under the Pakistan Muslim Family Laws Ordinance, 1961, a husband is required to give written notice of his having pronounced a Talaq both to his wife and to the Chairman of the Arbitration Council set up under the Ordinance. A Talaq pronounced "in any form whatsoever" will not be absolute until ninety days after delivery of written notice to the Chairman, or where the repudiated wife is pregnant, until delivery of the child, whichever period be longer. It seems, therefore, that even if a husband gives notice of a third repudiation, this will no longer constitute an immediate and final divorce. Furthermore, the same procedure is to apply "where any of the parties to a marriage wishes to dissolve the marriage otherwise than by Talaq.11 This clearly covers the case of extra‑judicial divorce by mutual agreement, which will accordingly no longer constitute a final and irrevocable divorce, as it does under traditional Shia Law. On the other hand, where a husband does not give the requisite notice of this talaq, or the spouses do not give notice of "divorce by agreement", the divorce Will apparently be valid and effective under the terms of traditional Shari ah law, since the sanction for failure to comply with the provisions of the Ordinance is purely punitive the offender being liable to imprisonment for a term of upto one year, or a fine of upto 5,000 rupees, or both." (Coulson: Succession in the Muslim Family, Cambridge 1971, p.21). 63. 1 am not unmindful of the observation of the Honourable Supreme Court in Gardezils case P L D 1963 SC 51 about the talaq being ineffective for non‑receipt of the notice by the Chairman, which has a binding force, as law of the land, for all the Courts in Pakistan, but in this regard, two new factors cannot be ignored. First, that the observation will be read as an interpretation to the provision of section 7, in the face of the Constitution of 1962, then in force, and the Supreme Court's inability to consider the said provision in the light of the Holy Qur an and Sunnah under Articles 5 and 6 of the] said Constitution and, second, that the insertion of Article 2‑A in the present Constitution of 1973, as amended by P.O. Order it 1985 and as approved by the Parliament (Vide the Eighth Constitutional Amendment), has cast a duty on the Courts of Pakistan to re‑define and re‑interpret the new frontiers of the "existing law" in the light v of Article 2‑A and the Objectives Resolution which have brought The Holy Qur an and Sunnah in the forefront for the first time in the whole history of Constitution and law in Pakistan. I may very humbly and with all respect to the Honourable Supreme Court that it deserves submit that in view of the newly‑added Article 2‑A of the Constitution, it will be the Constitution to rule supreme over law, whether enacted or interpreted prior to it.

64. Reverting to the question of talaq being made effective on the expiry of 90 days (as waiting period) from the receipt of the notice by the Chairman, following are the verses in the Holy Qurlan relating to waiting period ('Iddat) of a wife for making the Talaq irrevocable "Divorce women shall wait concerning themselves for three periods" (11:228) "If any of you die and leave widows behind, they shall wait concerning themselves four months and ten days; when they have fulfilled their term, there is no blame on you, if they dispose of themselves in a just and reasonable manner." (11:234) "Such of your women as have passed the age of monthly courses, for, them the prescribed period, if ye have any doubt, I,, three months and for those who have no courses (it is the same)." (LXV:4) "For those who carry (life within their wombs) their per is until they deliver their burdens. (LXV: 4)." "Nor. resolve on the time of marriage till the term prescribed is fulfilled." (11:235). The waiting period (Iddat) is a mandate of Shari ah, under biddings of God. It commences from the time the divorce is pronounced, or separation by dissolution of, marriage Is effected by a Court of law or the husband dies. The words (fatalku aldtuman) and (Surah AI‑Talaq verse 1)" are manifest that the counting of the period of Iddat begins with the pronouncement of Talaq. So, if the husband effects divorce to his wife but retracts, and the wife Institutes a suit in a Court of law and leads evidence, and the Court holds‑ that the husband had effected the divorce, the period of 'Iddat shall not be considered to have started from the time of the decree passed. (Fatawa Alamgiriyyah Vol.11, Chap. on 'Iddat). It, therefore, follows that if the waiting period passed away during Court's proceedings, it s observance shall be considered to have been completed.

65. It is ‑also stated in Baillie's Muhammadan Law Digest, p.3571 that "the 'Iddat of repudiation commences from the repudiation, and that of death from the death; so that if the events are not known until the period of the 'Iddat has actually passed, it is held to have expired. Moreover, if the husband pronounces revocable or irrevocable(, divorce to his wife who discharges her monthly course, for her the appointed waiting period is her three thus menses, as Allah ordains) Divorced Women shall wait concerning themselves for three menses/thus" (Surah 11:228). There s, however a difference of opinion on the meaning of the, word, Qurul According to the Hanafis it ‑means menstruation, whereas according to Shafi is, it means tuhr (Period of purity). According to the Shilah it also means period of purity. Hence, according to the latter the 'Iddat period is not the passing of three periods of "menses" but that of the three periods of lethal (purity), and not the fixed period of 90 days.

66. For the women who do not have the discharge, waiting period for them is three months as Allah has appointed three months with respect to those women who are despaired of menses. The verse reads that‑‑ The waiting period for a pregnant woman is till the pregnancy is over, as Allah has ordained: For those who carry (life within their womb) their period is until they delivered their burdens" (Surah LXV:4). Hence for a pregnant woman, undergoing 'Iddat, no particular waiting period is fixed. If the child is delivered few hours after divorce the 'Iddat shall come to an end at that very moment (See Fatawa Qadi Khan, Kitab al‑Talaq Chap. "on 'Iddat" AI‑Marghinani: AI‑Hidayah, Karachi Vol. II: p.422‑

30. Allama Shilrani has, in his book AI‑Mizan AI‑Kubra has said that the jurists are agreed on the point that 'Iddat for a pregnant C( woman is the delivery of her child though she may either be a divorcee or a widowed. Refer Abdul Wahab Al‑ShPrani, Al‑Mizani al‑Kubra, Egypt, Vol. 11, p.135 as under:

67. Under the provisions of section 7 of the Ordinance concerning waiting period of a pregnant woman it has been laid down that if the wife be pregnant at the time the Talaq is pronounced, the Talaq shall not be effective until the period mentioned in subsection (3) (i.e. three months) or the pregnancy (whichever be later) ends. According to the Holy Qur an waiting period for a pregnant divorce or widow is the end of pregnancy only 'Abdullah Ibn Mas ud has categorically held that the Sura AI‑Talaq in which the liddat for a pregnant woman is held to be till the end of pregnancy, has been revealed later to Sura Al‑Baqarah. Hence, it is mandatory to act upon the provisions of the Sura AI‑Talaq. It is also stated in a tradition from the Holy Prophet that one Sahabilah was pregnant at the time of her husband's death. She gave birth to a child after forty days. Thereafter, the Prophet (peace be upon him), allowed her to enter into a contract of marriage. The Caliph 'Umar also ruled that the 'Iddat of a pregnant woman ends with the delivery of the child, even though the dead body of her husband is still to be buried.

68. In view of the above discussion, the 'Iddat for a pregnable woman whether she be divorcee or widowed is till her delivery from, her pregnancy. This is also supported by the Qur anic verse (LXV:6), wherein the divorced or widowed pregnant women have been ordered to be paid maintenance till their delivery from pregnancy. It is, therefore, clear that the provision of the Talaq being made effective in case of a pregnant divorce to end with pregnancy or three months whichever is later, is manifestly repugnant to the Injunctions of the Holy Qur an and Sunnah. It may be mentioned that the object of waiting period is cleaning the womb which is best achieved by delivery.

69. There is, however, another aspect of the matter which need to be mentioned. Section 7 of the Ordinance makes. all forms of Talaq to be revocable. According to traditional Islamic Law the pronouncement' of one divorce to a wife whose marriage has not been consummated makes her irrevocably divorced and no term of probation or a waiting period or 'Iddat is to be observed by her the talaq becomes effective immediately. But the provision of section 7 makes no such distinction inasmuch as the Talaq a wife before consummation of married also been made to be effective after 90 days, which is clearly reputation to the Injunctions of Qur an.

70. As regards provisions of subsection (6) of section 7, reading that "Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from re‑marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time effective" (underlined by me), it appears that by adopting the Talaq al‑Ahs n as the only valid form of Talaq, the other form of Talaq al‑Hasan which is in accordance with the Qur an and Sunnah has been disregarded by the framer of section 7 which amounts to abolishing or eliminating the tradition of the Holy Prophet by disregarding the same, while enacting the said provision of law. There is a unanimity in both the schools of Hanafi s and the Shi ahs since early days that the Talaq al‑Hasan is valid and legal. The exclusion of the said form and insisting on the form of talaq al‑Ahsan as the only valid form of talaq, is not only contrary to Article 2‑A but also against the provisions of Article 227(2) of the Constitution.

71. To sum up the discussion on section 7 is as under:‑ (i) Providing for the effectiveness of talaq, on the receipt of notice by the Chairman is against the Injunctions of the Qur an and Sunnah. Mere non‑receipt of the notice will not render the talaq as ineffective or void. Suspending the effect of Talaq for 90 days from the date of the receipt of notice is also against the Injunctions of the Holy Qur an and Sunnah. A talaq, if otherwise valid under Qur an and Sunhah takes effect immediately on its pronouncement. (ii) The Arbitration Council or its Chairman are not talaq‑enforcing agencies. They are not supposed to give any' decision on the question of validity or otherwise, of the Talaq, under the substantive law of talaq, applicable to the parties, or event issue a certificate to make the divorce effective or declare the same as ineffective. The certificate of confirmation, even if it is issued by the Chairman in this behalf, will have no legal effect, if the talaq under the substantive law, applicable to the parties, is not valid. (iii) Ninety days period for the talaq being effective in case of the wives who have ceased to menstruate (due to advance age or some cause) will be in accordance with the Injunction of the Holy Qur an. But to fix the same period of ninety days for the wives who menstruate will be against its express injunction, Their period is three Quru the periods. According to Hanafis the meaning of the word Quru in the Qur an is 'menses" (monthly course) whereas according to the Shafi is and the Shi ahs it means "purity" (from menses)., The minimum and maximum period of menstruation based on the narrative of Ha'zrat Ali, as fixed in the Shari ah as 3 days and 10 days respectively, whereas there is no minimum or maximum period of purity fixed in the Shari ah. Allah Almighty, in His wisdom has fixed in the Qur an three Quru (take it to be either the period of tenses or period of purity from menses) without. fixing a certain number of days. The primary purpose of fixing the periods for the wife who discharges her month course is to ascertain whether she is pregnant or not. It is a settled rule of Islamic jurisprudence that the fixation or maqadeer Shari ah numbers or quantities by Shari ah is not based on Qisas. analogue or experiments (like racket of salad prayers etc. When Quran" and Sunnah prescribe a certain number or quantity for a certain act or object, no human agency on earth can alter or modify it. The fixation of three periods for a wile menstruating prescribed by the Holy Quran is to be enforced Strictly. Even the modern principles of! interpretation as enunciated by our Courts will support the proposition that when the legislature fixes period I proposal certain p for a certain thing or the manner in which a certain act is to be performed the Court must see that the same is strictly! followed and adhered to, Evan s case decided by the Supreme, Court is pointer to it. (For further discussion I t of Statutes by Maxwell.) (IV ) Prescribing 90 days period for effectiveness of all kinds of! divorces, including a wife. who has, been divorced by heir husband without consummation of marriage, imagined the manifest Injunction of the Qur an and Sunnah. 'f he period as prescribed in the case of a prealnant wife, repugnant to the Injunction of the Quran and Sunnah. (VI) The right to re‑marry the same husband, without an intervening! marriage, unless the Talaq is effective for three times, as provided in section 7, negatives the, talaq al‑Hasan and its effect, which is contrary to the Injunctions of the Qur an anti Sunnah. It may be added that the effectiveness of talaq is not only relevant for purpose of re‑marriage, but it is also relatable to right to property such as will and inheritance, The dictate of the Qur an and Sunnah must, therefore, be strictly adhered to.

72. The Court will construe the provisions of section 7 of the Ordinance with adaptations, as aforesaid, in order to make the said provision of law applicable in conformity with the Constitution an enforce the same so as to bring them in accord with the Injunctions of Islam as laid down in the Qur an and Sunnah, as provided in Article 2‑A of the Constitution. 1, therefore , refuse to recognize, section 7 of the Muslim Family Laws Ordinance to the effect that the receipt of the petitioner's notice of Talaq dated 10‑2‑1982 by the Chairman (Respondent No.5) and the expiry of 90 days from the date thereof has ipso facto made the divorce effective, in derogation of the provisions of the Qurlan and Sunnah relating to talaq.

73. Now, dealing with the last contention of the learned counsel for the petitioner that tenets of the Fiqh Jafria have been fully adhered to by the petitioner. In this case, it seems proper to first state the requirement of talaq in the Fiqh Jafria. Since it was the case of respondent No.1 that the provisions of Fiqh Jafria relating to talaq have not been duly complied with by petitioner, I called upon him to make his submission first. According to him, the following are the four conditions of a valid talaq according to Fiqh Jafria: (i) Presence of the wife; (ii) Two witnesses of the pronouncing of talaq (iii) Recital of sigh of talaq, and (iv) Talaq must be pronounced orally. For the above requirements of Talaq, according to Fiqh Jafria, reliance was placed on the case of Syed Ali Nawaz Gardezi v. Lt. ‑Col. Muhammad Yousuf P L D 1963 Supreme Court 51, Mst. Maryam Bano v. Hussain Ali and another 1984 C L C 1961; Syed Azharul Hassan Naqvi v. Hamida Bibi alias Eshrat Jahan and 3 others 1987 C L C 1041, Naheed Fatima v. Syed Amir Azam Rizvi and others Mst. Basra v. Abdul Hakim and 2 others P L D 1986 Q.298; P L D 1987 Kar.670. Reliance was also placed on the text‑books of Baillie's Digest of Mohammadan Law 1869 edition, Vol. 11, pp.113‑117, Mulla's Mahomedan Law 1981 edition p.327, Mohammadan Law by Syed Ameer Ali 1965 edition p.444, AI‑Shari ah by S.C. Sircar, Vol. 11 p.399, Muslim Law of Divorce by K.N., Ahmad 1972 edition, p.33, Muslim Law by Kashi Prasad Saksena, third edition, p.115 Jami al‑Jafari,Vol. 11, p.8, Tudih al‑Masalil by Ayatullah Khuil, Tudih al Masalil by Roohullah Khumaini and A Code of Muslim Personal Law by Justice Dr. Tanzil‑ur‑Rahman Vol.1, 1978 page 338.

74. In 1963 Supreme Court 51, reliance has been placed by the learned counsel two paragraphs Nos.32 and 37, appearing at pages 72 and 74, which are reproduced as under:‑ "The alleged talaq could at best be described as talaq bidat, which is not recognised as valid by Shia law (See Baillie's Digest of Muhammadan Law, Part 11, p.118, Taybjils Muhammadan Law, Third Edition, Sections 136‑142, Mulls's Muhammadan Law, p.662, Fifteen Edition, Amir Ali's Muhammadan Law, Fourth Edition, Vol.11, p.533). These text‑books writers, moreover, are unanimous in stating that according to Shia doctors, the talaq must be orally pronounced by the husband, in the presence of two witnesses and the wife, in a set form of Arabic words. A written divorce is not recognized, except in certain circumstances which do not exist in the present case. The learned trial Judge took the view that Exh.D.1, even if it was executed by the complainant, was not effective in law to separate the two spouses because of these provisions of the Shia Fiqh. The Appellate Bench of the High Court regarded the provisions of the Shia Fiqh with regard to the presence of witnesses and the necessity of an oral pronouncement of divorce, as merely rules of evidence which could be disregarded. The law being, however, laid down in categorical terms, it is open to question whether the view taken by the Appellate Bench can be sustained. The learned Judges do not appear to have adverted to the point that the alleged talaq was in the heretical form (Talaqul Bidat) which the Shia dispensation of Islamic Law does not sanction." "Coming next to the important section 7 itself, it seems to us that the Legislature had attempted to incorporate the Islamic Law provisions with regard to the two forms of "Talaq‑us Sunnat", viz., "Talaq Ahsan" and "Talaq Hasan", as far as may be, in this section. The first of them is that form in which a single pronouncement of divorce is made during a period of menstrual purity, no intercourse having taken place during that period, and is followed by a period of Iddat. The second is one in which the first pronouncement made in similar circumstances is followed by two further pronouncements in succeeding period, no intercourse taking place at any time during the three periods. Such a divorce becomes irrevocable on the third pronouncement. Whether the result achieved is in strict conformity with Islamic Law is a question which does not fall within the province of this Court to determine by reason of Articles 5 and 6 of the Constitution. The section clearly contemplates a machinery of conciliation whereby a husband wishing to divorce his wife unilaterally, may be enabled to think better of it, if the mediation of others can resolve the differences between the spouses. The talaq pronounced is to be ineffective for a period of 90 days from the date on which notice under subsection (1) of this section is delivered to the Chairman and this period is to be utilized for the attempt at reconciliation. Subsection (6) makes it clear that even if talaq has become effective under the previous subsections, the spouses would not be prevented from re‑marrying, without an intervening marriage with a third person, unless such termination is effective for the third time. All that the section requires is that the marriage in question should be dissolvable by means of a talaq and it does not seem necessary to adopt the narrow construction contended for on behalf of the respondent, that the wife mentioned in the section must necessarily be a Pakistani. citizen. To suggest, as Mr. Mahmud Ali has done, that unless she is such a citizen she would have no right to appoint Arbitrator on her behalf, under section 2(a) of the Ordinance, appears to beg the question. 11 75.In 1984 C L C 1961, the case related to a husband and wife both Muslims belonging to Shia Asna Ashari Sect. Husband divorced his wife by a divorce deed witnessed by two witnesses, copy of which was sent to Chairman Union Committee for confirmation. Reconciliation proceedings having failed divorce was declared by the Chairman as effective after expiry of 9(‑ days. The validity of the said divorce was challenged by the wife by filing a Constitutional Petition, wherein it was observed by a learned Single Judge that under Shia Law a husband can divorce his wife by pronouncing Talaq in her presence in Arabic in a prescribed manner. In this regard reference was made to Arsenals "Muslim Law as administered in British India" who has commented as follows: "Under Shia Law, a Talaq is of no effect unless it is pronounced, (1) Strictly in accordance with Sunna. (2) In Arabic terms. (3) ID the presence of at least two adult male witnesses." It was thus held by the learned Single Judge that "Talaq pronounced by respondent No.1 was not valid as it did not comply with the legal requirements prescribed by Shia Law. If a Shia is unable to pronounce Talaq in presence of his wife in the prescribed manner then it can be pronounced in presence of two male witnesses and communicated to her in writing. There is nothing on record to show that the respondent No.1 was incapable of pronouncement in the prescribed form before his wife, or that Talaq was at all pronounced in the .............................................................................................. prescribed form and manner before the witnesses 11 As Talaq was not validly pronounced by the respondent No.1 the entire proceedings under section 7 and the order passed by respondent No.2 are without lawful authority and without jurisdiction".

76. The case as reported in 1987 CLC 1041, related to Shia spouses. The trial Court on basis of evidence led by parties reaching conclusion that pronouncement of divorce made by husband on wife did not conform to requirements of Shia law inasmuch as it was not heard by two Adil males and, therefore, lady could not be said to have ceased to be his wife. The finding of fact was upheld by the Appellate Court. Interference was also declined by High Court in constitutional jurisdiction.

77. In PLD 1986 Quetta 298 the wife asserted that her husband pronounced Talaq three times at her parents' residence. Family Court, for cogent reasons, disbelieved wife's witnesses and highlighted material discrepancies in their statements in its judgment which was concurred by the Appellate Court. Finding of Family Courts that Talaq was not proved was maintained, in the circumstances by a Division Bench of the High Court of Baluchistan as it was not found based on misreading of evidence or contrary to evidence on record.

78. The case reported in PLD 1987 Kar. 670 pertains to Shia spouses. It was held by a learned Single Judge of this Court that the Talaq must be pronounced by husband orally and in presence of two competent witnesses. The divorce communicated in writing was not valid under Shia law unless husband was physically incapable of pronouncing it orally. However, the learned Court dismissed the petition on the ground that there was leaches for six years in invoking constitutional jurisdiction by the wife.

79. Baillie's Digest of Mohammadan Law, pp.113‑117, it states that: ‑ "Repudiation cannot be effected by writing, nor in any other language than the Arabic when there is ability to pronounce the words specially appointed, nor by signs except where the party is unable to speak. If he is dumb, repudiation may be effected by any signs sufficiently indicative of his purpose. And, though it cannot be given in writing by one who is present and able to pronounce the proper words, yet if he is unable to do so and writes them fully intending repudiation, it takes effect and is quite valid." "The fourth pillar of repudiation is Testimony; and it is necessary that two witnesses should be present and hear the repudiation given, whether they are called upon to attest it or not. It is a condition essential to the validity of a Talaq that the witnesses should hear the actual words. So, that if they are merely present, repudiation does not take effect, though all other conditions are complied with." 80.In Mulla's Mahomedan Law, Baillie has been quoted as above, for Shia Law and it states that "A divorce must be pronounced orally in the presence of competent witnesses and a Talaq communicated in writing is not valid unless husband is incapable of pronouncing it orally.

81. Ameer Ali in his book on Mohammedan Law, Vol. II, page 444, writes that: ‑ "Under the Shia Law, it is further necessary that there should be two reliable witnesses present at the time of repudiation to hear the words in which it is pronounced, or in the case of a dumb individual, to see the writing or the signs in which it is expressed. Not only must the witnesses be present at the time, but they should understand the nature of the act and hear the distinct wording of the repudiation. If they be unable to testify to the exact character of the Talaq, or the words or signs used, it is invalid, although all other conditions may have been duly complied with. It is a further condition under the Shiah doctrines that the witnesses should be present together. The Shia Law is so strict in the matter of repudiation and throws so many obstacles in the way of a dissolution of marriage by this process, that it declares that, if one of the witnesses should be present at one stage and the other at another stage of the proceeding, the Talaq would not be valid. When they testify to the acknowledgment by the wife of a repudiation, it is not necessary that their testimony should be concordant, or relate to one and the same time, or 'be given together'. Yet says the Shara a, 'if one should testify to the fact of repudiation and 801 the other to the Acknowledgment of it, their testimony would 1094 not be admissible'. When a Talaq is pronounced in the presence of witnesses, it takes effect only when the appropriate words are employed. If a husband were to repudiate his wife first without witnesses and then in their presence, the former proceeding would count for nothing. The dissolution would come into effect only from the date of the second Talaq if valid.11

82. In Al‑Sharila, Vol.11 by S,.C. Sir car, pp.399‑400, it is stated that: "Divorce cannot be effected in writing nor in any other language than the Arabic, when there is ability to pronounce the (Arabic) words especially appointed, nor by signs except where the party is unable to speak. So, ‑ If the husband is dumb, divorce may be effected by any signs indicative of his purpose. Though divorce cannot be given in writing by one who is present and able to pronounce (the proper words), yet, being unable to speak, if he (the divorcer) writes them, thereby intending divorce, it is valid and effective. Some doctors are of opinion that divorce takes place by writing if the husband were absent from his wife, but this opinion is not to be relied upon.

83. K.N. Ahmed in his book, Muslim Law of Divorce, referring to Wasilat al‑Najat, Abull‑Hasan al‑Mustafa, Najaf, 1364 A.H., p‑370, at page 33 writes as under:‑ "Presence of two trustworthy male witnesses at the time of divorce is an essential condition under the Shia Law. They should be present together at that time. A Full Bench of the Lahore High Court has expressed the view that 'the rule regarding the presence of two witnesses is a rule of evidence which stands replaced by the Evidence Act. The Supreme Court of Pakistan did not approve of the view and stated in its judgment that 'the law, however, being laid down in categorical terms, it is open to question whether the view taken by the Appellate Bench can be sustained. It may be noted that the view expressed by the High Court requires reconsideration. The rule regarding presence of witnesses is certainly not a rule of evidence, but belongs to the substantive Shia Law of divorce and is an essential part of the same. Under the Shia Law, a divorce pronounced in the absence of witnesses shall be invalid. It is stated in Shari ah al‑Islam that the hearing of the pronouncement of divorce is an essential condition for the validity of the divorce. The Shia Law is so strict in the matter that it has laid down that in the absence of witnesses no divorce shall be effected even if all the other conditions are satisfied, nor shall a divorce be effected if only one witness be present or the two witnesses 'present are not just and reliable. The Shia jurists rely on their interpretation of the verse of Surah al‑Talaq (LXV: 2) which enjoins the presence( of two witnesses at the time of divorce. Thus, the Shia law is more strict in the matter of divorce than the Sunni Law.

84. Saksena in his book on Muslim Law, p.113, states that: "Under the Shia law, talaq in writing or by signs is not allowed, unless the husband is unable to pronounce the formula of divorce and unless the document is written or the signs made with the intention of Talaq and in the presence of two male witnesses. It has been further stated that: "The Shias insist on the presence of two Muslim witnesses of approved probity at the pronouncement, which must be in proper form and in Arabic terms, if possible, and there must be intention to dissolve the union."

85. In Jamilal‑Jafri, Vol. 11, page

9. Lahore, (Urdu translation) it is stated as under:‑

86. In "A Code of Muslim Personal Law," Volume I written by me, learned counsel relied on at page 338 which is as under: "Shi ah Law prescribes a particular formula for the pronouncement of divorce. If that is not employed, divorce would be ineffective. Thus, according to Shi ah Doctors, the Talaq must be orally pronounced by the husband, in the presence of two witnesses and the wife in a set form of Arabic words except where it is established that the husband is incapable of pronouncing the talaq in the manner mentioned above. PLD 1963 SC 51; 1963(l) PSCR 356; 15 DLR (SC) 9). It will be noticed that it is not with regard to proof of divorce that the Shilah law insists on two witnesses but to the very act of divorce and, therefore, the matter does not relate to proof only. It is a part of substantive law PLD 1962 (W.P.) Lah. 558; PLD 1965 Kar.185. 87.On the other hand, learned counsel for the petitioner submitted that the presence of wife at the time of pronouncement of Talaq by the husband is not necessary. As far as recital of sight of Talaq, in Arabic language is concerned, it was submitted by him that it is also not an essential requirement of the validity of Talaq and same is the case with the oral pronouncement of Talaq. It can be oral as well as in writing. Reliance was placed by him on the Pakistan Supreme Court Law Quarterly, p. 176, Tudih al‑Masalil by Ayatullah Khuli, p.373, problem No.2511‑12, Tudih al‑Masa 'il jVL.:.11r‑4 . ) by Roohullah Xhumeini p.387, problem Nos. 2498‑99, Muslim Law of Divorce by K.N. Ahmad, p.28, Mohammaden Law by Ameer Ali Vol.11, 7th edition page 444 and Majmula Qawanin‑i‑Islam by (Justice) Dr. Tanzil‑ur‑Rahman, Vol.11, p.391.

88. K.N. Ahmad, in his Article entitled as "Wife's presence at the time of divorce", published in the Pakistan Supreme Court Law Quarterly, Vols. 3 & 4, 1970‑73 pp.178‑81, referring to the Supreme Court Judgment in Syed Ali Nawaz Gardezils case, has stated that the observation of the Honourable Supreme Court that the presence of the wife at the time of husband's pronouncement of divorce was considered necessary or essential by the Shila doctors, was made only inadvertently. The books referred to by the Court "not only do not support this observation but on the other hand they negative it. Moreover, "the Shi ah law is very clear on this point and it holds, as does the Sunni law, that a divorce can validly be given in the absence of the wife".

89. In the Book, Tudih al‑Masalil based on the fatawas of Ayatullah Khuli a very well‑known Shilah Mujtahid of the present time in Iran it is stated that:‑

90. In the book, Tudih al‑Masalil based on the fataw of Roohullah Khumaini Founder of the Islamic Revolution in Iran it i stated that: ‑ 91 .K.N Ahmad in his book Muslim Law of Divorce at page 28 states that:- "Under the Shia law, divorce has to be given by the husband in certain specified words in Arabic. If he is not capable of pronouncing them, he can appoint an agent if one is available, otherwise he can pronounce divorce in any other language known to him as is done in the case of marriage. But cannot be given in writing except in the case of a person who cannot speak.

92. Ameer Ali in his book Mohammedan Law, at page 444, state as under:‑ "They do not allow a Talaq to be given in writing, nor in any language other than Arabic, when there is ability to pronounce the words necessary for a valid repudiation; nor can a Talaq be effected among them by signs unless the husband be dumb. A person who is dumb may give the repudiation in writing but one who is able to speak is not allowed to do so. Even an absent husband cannot effect a valid Talaq in writing. He must pronounce the words in the presence of the witnesses, and the fact of his doing so may. be recorded in writing, which may be forwarded to the wife, or it may be intimated to her otherwise, the Sunnis, on the contrary, hold that "a Talaq may be effected by writing as well as words."

93. In Majmula Qawaneen‑e‑ Islam written by me Vol.II, p.391, relied on by the learned counsel for the petitioner, the following passage appearing at pages 391‑92 of the said book reads as under:‑

94. As regards the presence of the wife at the time of pronouncing divorce, Mr. K.M. Nadeem, learned counsel for the petitioner submitted that the same is not necessary, not only under the Sunni Law but under the Shia Law as well. The several High Courts in their decisions cited by the learned counsel for respondent No.1, have, in fact, followed the observation of the Honourable Supreme Court in Gardezils case PLD 1963 SC

51. The Supreme Court decision, on the other hand, is stated to be based on the text‑books on Mohammadan Law by Baillie, Tyebji, Mulla and Amir Ali, but after reading out those passages by the learned counsel for petitioner, as referred to in the said judgment, it was submitted by him that the Pame were correctly relied on in respect of the other requirements of talaq under Shia law but no support can be derived there from for the proposition of the presence of the wife as one of the requirements of talaq under Shia law. In fact, there is no mention of it in them. It seems, he submitted, this observation has crept in the Supreme Court judgment on the basis of the submission of the counsel referring to the appellate judgment of the Lahore High Court in the said matter (See PLD 1962 Lah.751). Concluding his submission on 'the presence of wife at the time of pronouncing divorce' he referred to Para. No.6 of the petition, wherein it was stated "That, even otherwise, the tenets of the Fiqah‑e‑Jafaria i.e. Muslim Personal Law as adhered to by Muslims of Shia Asna Ashari Sect do not require the presence of wife at the time of the pronouncement of Talaq by the husband. It is most humbly submitted that the observation of Honorable Supreme Court of Pakistan reported in PLD 1963 S C page No. 51 (Col. Yousuf v. Gardazi case regarding the presence of wife in order to make pronouncement of divorce as valid under Fiqah‑e‑Jafaria is not supported by Shia Muslim Jurists of Authority. Even otherwise, the error of the said observation has been subsequently taken note of by the Hon'ble Supreme Court of Pakistan and has been clarified in an Article entitled "Presence of wife at the time of Divorcer written by Mr. K.N. Ahmed and published by a Quarterly Journal of Supreme Court of Pakistan which is published under the Authority of Honorable Judges of the Supreme Court of Pakistan". I myself went through the entire Arabic text of Kitab‑al‑Talaq of the Sharilah al Islam (Beirut edition), by Allama Najmuddin Abi Jalfar AI‑Hilli, t e Source‑book of all the above text‑books, but I failed to find any passage in support of the said proposition. I also looked into the famous Shili collection of habit namely, AI‑Istibsar by Abi Jafar Mohammad b. AI‑Tutsi (d.460.H.) Najaf, Part 111, Chap. on Talaq p.

294. The learned author named a separate chapter entitled as "Chapter on Talaq of an absent person", wherein he has quoted in all 6 traditions. The first one bearing No.1038, reads that‑ From the above tradition it seems that the Talaq by a husband who .is absent (from his wife) is valid. The passages from Taudih al Masalil referred to above, too, support, though indirectly, the submission of the counsel for petitioner that divorce can be pronounced in the absence of the wife. 1, then, granted adjournment in the case to the learned counsel for respondent for further study on the question. On the next date, Mr. Fani, learned counsel for respondent No.1 came out with a statement that he went through all the four text‑books on Muhammadan Law as cited in the Supreme Court judgment, but could not find anything therein or in any other text‑books on Shia Personal Law which support his proposition that presence of wife is essential at the time of pronouncement of Talaq. He, then, seemingly appeared to be agreeing with the submission of the counsel for petitioner that presence of wife at the time of divorce is not necessary under the traditional Shi'ah Law and did not stress upon his first submission (out of four, as referred to above at para 73 supra) as to the requirements of the presence of the wife at the time of divorce under Shia law.

95. In connection with the presence of witnesses at the time of pronouncing divorce the following are the two verses of the Holy Qur an as relied on by Shi ah Jurists: Al‑Qur an, Surah AI‑Talaq: LXV: 1 & 11011 Prophet "when ye do divorce women, divorce them at their prescribed periods and count (accurately) their prescribed~ periods, and fear Allah, your Lord, and turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some open lewdness. These are limits set by Allah: and any one who transgresses the limits of Allah does verily wrong his (own", soul: Thou knowest not if perchance Allah will bring about thereafter some new situation. Thus, when they fulfil their term appointed, either take them back on equitable terms or part with them on equitable terms; and take for witness two persons from amongst you endued with justice and establish the evidence (as) before Allah."

96. T‑he mandate conformable to Shari ah derived from the word. Wa Ashhidu (Take for witness) in the above‑stated Qur anic verse is a subject of controversy as to whether it is mandatory or merely desirable.

97. There are divergent views about the presence of witnesses a, the time of pronouncement of divorce. The views are, in the first place, based on different interpretations of the above‑quoted verses 1 and 2 occurring in Surah AI‑Talaq (Divorce, Chap. LXV) of the Holy Qur an. First, I will quote the opinions of the learned commentators of the Holy Qur an, and thereafter the traditions, and then the views of eminent Muslim Jurists. 98.Imam Fakhr al‑Din al‑Razi (d.606 H) in his famous commentary of the Qur an known as Tafsiral‑Kabir Cairo. 1357 H, Vol. XXVIII, p. 34 has interpreted the words "Take two just men from amongst you" as "ordered that you take two just witnesses from amongst you at the time of divorce and its revocation". According to him, therefore, the provision of evidence is for both the occasions of divorce and that of having recourse to his wife. Abu Salud (d.951 H.) in his Tafsir (commentary of the Qurlan) Maktaba al‑Husainyah, 1347 H., Vol. V. p.170, however, lays down that the mandate of evidence is desirable for both the occasions of having recourse and separation as Allah says "Have witnesses when you enter into the transaction of sale and purchase." (Al‑Qurlan, Surah Al‑Baqara, 282:) (Let me point out here that all the jurists agree that at the time of buying and selling (the provisions of evidence is merely desirable and not mandatory). Mahmud b. 'Umar Al‑Zamakhshari (d.538 H.) in his commentary of the Qur an AI‑Kashhaf Vol. III, p.239 has merely said that there is the provisions of evidence for both revocation and separation. Allama Qurtubi too in his commentary, Jami lal Ahkam al Qur an Dar al‑Kutub al‑Arabia, Cairo, Vol. XXVIII, p.157 has stated that at the time of divorce and having recourse to the wife there is the provision of evidence. Abdullah b. al‑'Umar AI‑Baydawi (d.791 H.): Egypt, 1358 H. has however, commented in Anwar al‑Tanzil Vol. 11, p.381 that the provision of evidence in both the cases of revocation and separation is merely desirable. Ibn Habban in his Tafsir AI‑Muhit Cairo, Vol.VIII, p.282 has stated about the evidence in both the situations to be incumbent. The words, Irmak, (keeping back) and Mufariqat (separation) have been explained respectively as Rajlat (having recourse to) and Talaq (divorce) by the learned commentator. Al‑Tabri (d. 310 H.) in his commentary Tafsir AI‑Tabri Maktaba al‑Amirya, 1329 H. Vol. XXVIII, p.88, quoting the assertion of Suddi, a Tabili (Successor of Companions) has also said that Wa Ashhidu (have witnes,3) has been used concerning both "divorce" and "having recourse to". In Madarik al‑Tanzil , known as Tafsir al‑Nasafi to have witnesses at the time of having recourse to and separation" has been held to be desirable. So also is in Tafsir Ibn al‑Kathir of Imam Ibn al Kathir (d. 774 H.), Egypt, Vol. IV, p.379.

99. After the perusal of the above‑stated commentaries on the 7 above verses, it is manifest that Imam Razi, Zamakhshari, ruby and Tabri do mention the provision of having witnesses in respect of separation and of having recourse to (there is no controversy a u' it); but they speak nothing about its being mandatory or desirable. Abu al‑Sa ud, Baydawi, Nasafi and Ibn al‑Kathir hold it to be "desirable" in both the cases, whereas the provision regarding evidence have been stated in Tafsir al‑Muhit to be incumbent and the word "separation" has been taken to mean "divorce". In my humble opinion, it is not proper to assume the meaning of "divorce" ( 60 ) from the words, Fa‑riqu Hu6na (separate those women) in the verse. This is so inasmuch as the words, Iza tallaqtumm un‑Nisa Iwhen you divorce those women) in the beginning of the verse clearly bear upon divorce, whereas the words Fa‑riqu Hunna (separate those women) point to the fact of giving up the wife on the completion of her term of probation after divorce, which has already been pronounced. It is in the meaning of "not having recourse" to the wife. It is plainly a situation which may occur only after pronouncing divorce.

100. As regards the traditions of the Prophet's Companions and their Successors, Ibn al‑Majah (d.273 H.) in his Sunan, Kar. p.146 has quoted a tradition, which is as follows:‑ "It was enquired from 'Amran b. Hasin about a person who had divorced his wife and then had recourse to her, without having witnesses either at the divorce or at having recourse to her. 'Amran told him that he had pronounced divorce and had recourse to her in contravention of the tradition of the Prophet and that he should have had witnesses at the divorce and at his having recourse to her. An averment of 'Atlas that "the nikah is with witnesses and the divorce is with witnesses and its revocation is in presence of witnesses "has been quoted in al Darr al Manthur Imam Jassas, too, in his Tafsir Ahkam al Quran has reported the assertion of Ata through Ibn Jurayj, that The divorce and marriage and having recourse is to be in presence of witnesses". It appears from the said assertion that 'Ata was convinced of the fact that the presence of witnesses was necessary at all the three occasions viz. at the time of contracting marriage, pronouncing divorce and having recourse to one's wife.

101. From the study of these (author) it appears that there is a provision for the presence of witnesses at the occasions of "pronouncing divorce" and "having recourse to".

102. According to the jurists belonging to the known four schools, i.e. Hanafi, Maliki, Shafil and Hambali, the presence of witnesses is no condition for the divorce being effective. it is rather desirable. On the other hand, the Zahiriyyahs (Ibn Hazam, Imam Abu Muhammad (d. 456 H.): Cairo 1353 H.,,Vol. X, p. 251 and Shi ahs (Al Hilli's Sharalil al‑Islam Beirut, Kitab al Talaq, Vol. 11, p. 57 it the time of pronouncing consider the presence of two just witnesses divorce as a necessary condition for the divorce being affective. Muhammad al‑Hasnain, in his book I'Asl al‑Shilatah wa Usuluha VII ed. p.159 writes thus:‑‑ "This Surah is particular in respect of divorce and provisions relating to it. Hence it has been called the Surah of Talaq (divorce). Allah has begun the Surah with, Iza Tallaqtumun Nisa and has mentioned about the pronouncement of divorce by the husband at the beginning of the term of probation. That is, the divorce should neither be pronounced during that period of purity in which the husband has had sexual intercourse with the wife or during the period of her to menstruation. Thereafter, provisions regarding counting of the term of probation and the directive regarding not turning those women out of their houses have been laid down. Then, Allah stated about 'having recourse to, during the discourse Woman divorce. Thus, Allah has said, 'when their term of probation be near completion, retain them equitably', that is, when the term of probation be approaching its termination one concerned has either to retain them by having recourse to them of the directive as laid down about divorce, 'you appoint two just witnesses' from amongst you'. That is, witnesses of divorce be appointed, the directives about which have already been mentioned. (Trans.) In other words, the argument of Shi ah jurists about the presence of witnesses at the time of divorce being incumbent is that the directive: "Wa Ashhidu Zaway Adlim Minkum" (have two just witnesses from amongst you) which is at the end of the verse is subjoined to the directive, Fatallaqu Hunna Ii iddat china (Divorce them for their term of probation) occurring at the beginning of the verse. And as it is incumbent that the divorce be pronounced having regard to their term of probation, similarly it is incumbent to have witnesses at the time of the pronouncement of divorce. The pronouncement of divorce without witnesses, therefore, according to them, shall not take effect.

103. Another argument relied upon by the Shi ah jurists is that Ibn 'Abbas has said, "The presence of witnesses at having recourse to and at the pronouncement of divorce removes the difficulties of many types as referred to by Muhammad Al‑ Hasnain, in his above book, named.

104. The arguments of the Shiah jurists or for that matter the Zahiris, who favour the presence of witnesses at the time of divorce as mandatory, in my humble opinion, does not seem to be based on the correct interpretation of the Qur anic verses quoted above. The argument of Shi ah jurists that "Have two just witnesses from amongst you" is subjoined to "Then divorce them for their period of probation", in the beginning of the verse is at variance with the usual linguistic arrangement of the Qur an. Allah in this verse has, in respect of divorce given the directive that the divorce whenever it be pronounced ought to be pronounced: (a) with respect to the time of probation, and the women ought not be turned out of the houses, nor the women on their own account should leave the houses. LL except when they become openly transgressors (unchaste). It is‑1 thereafter, said that it is the limit prescribed by Allah; whoever, crosses this limit shall be cruel to himself. The directive about divorce ends here. Allah, on this directive, now adds another directive. He says that before the completion of the term of probation of the women, retain ;them equitably or give up the opportunity of having recourse to them and (on his) have two witnesses. That is to say, there are(‑,l two 'sentences: one is with respect to divorce and the other is with respect to the retention or non‑retention of the women near completing! their term of probation. Hence the sentence "Have two just witnesses from amongst you" is subjoined to Imam, (keeping back) or Mufariqat (separation), and not to divorce, which is referred to in the beginning of the verse. Here Mufariqat, that is, separation has unanimously been taken to mean giving up the opportunity of retaining by having recourse to them, which is an act quite distinct from and later to divorce. Shi ah almmah consider that the last sentence "Have two just witnesses from amongst you" directly concerns Fatalliquhunna, then divorce them) which occurs at the beginning of the verse. This will be against the usual syntax of the Qur an. The directive about divorce in the verse takes precedence and the directive about witnesses has no concern with divorce. It has justly been placed much later. Further, the letter far in fa visa bal Ghana (when these women are about to reach the completion of their period of probation) has been introduced with the purpose of tarry effect and consequence ). Hence, incumbency of evidence may, at best, be in connection with msikuhunnal tension and fa-riqu Hunna (separation) and not concerning tallaqtumm that is, divorcing them, which has already been pronounced.

105. Another argument of the Shi ah jurists that the directive in making the presence of witnesses for divorce as incumbent is for the purpose of avoiding disputes and, in the event of denial, for providing proof. If this is so, to have witnesses required for a contract of marriage, according to them, should also be made incumbent for the marriage contract taking effect, as therein also lies the possibility of dispute and denial. Moreover, through a contract of marriage the matrimonial alliance is created, whereas through divorce the said alliance is broken off. It is evident that the creation of a marriage contract is a positive and more important event than breaking it off. But the Shia jurists unanimously do not favour the necessity of the presence of witnesses for a marriage contract.

106. Based on the above interpretation of the Qur an, I have come to the conclusion that the presence of two witnesses cannot be held to be mandatory as an essential requisite for giving effect to the pronouncement of divorce that in its absence divorce is considered to be null and void and of no effect. It is only desirable, as held by the four Sunni Schools of law. But, in view of the Constitutional provision of Article 227 (1) Explanation, which provides that "In the application of this clause to the personal law of any Muslim sect, their expression "Qur an and‑Sunnah" shall mean the Qur an and Sunnah as interpreted by that sect". I am bound to follow the interpretation of the above Qur anic verses by the Shia jurists on the question of the presence of witnesses at the time of 'pronouncement of divorce, as being mandatory. The judicial pronouncement of the Honorable Supreme Court in Gardezils case P L D 1963 SC 51 is also to the same effect which is equally binding on me, as in the case before me the parties admittedly belong to Shi ah sect.

107. As regards the pronouncement of Talaq to be oral, the correct rule of Shi ah fiqh in the light of the above extracts, seems to be that it should be pronounced orally but the rule admits an exception and that is the inability to speak the word of Talaq. A Talaq cannot, therefore, be given in writing by one who is able to speak annual pronounce the word Talaq under the Shi ah fiqh.

108. Regarding pronouncement of Talaq in appropriate words, that is, the Sighs in set form of Arabic language the rule, according to the extracts quoted above, seems to be that Talaq is to be effectual in Arabic language, in the words appointed for the purpose. A Vakil,' agent, may also be appointed for the purpose of pronouncing the Sighas in Arabic language. But the said rule does not appear to be' inflexible. The husband can pronounce Talaq in any other Ian eagle known to him, as is done in the case of marriage, under the Shia law. After all, the physical and intellectual impediments a also(l. provide an exception to the rule.

109. Applying the above tests to the facts of case before me admittedly, the wife was not present at the time of pronouncement oil Talaq, but in view of the fact that the counsel, ultimately did no stress upon his submission about the presence of the wife as one or the essential conditions to the validity of Talaq, under the Shia law, it need not peruse any further.

110. As regards "the presence of witnesses at the time of pronouncement of Talaq, learned counsel for the petitioner submitted that the Talaq was firstly pronounced orally in the presence of two male witnesses. Reference was made by him to the notice of Talaq dated 10‑2‑1982 in writing. The notice dated 10‑2‑1982 addressed to respondent No.1 with a copy to Chairman Union Committee does, of course, mention the pronouncement of divorce, but is absolutely silent that it was made in presence of any witness. Talaqnama dated 8‑3‑1983 makes recital of the fact of having divorced the respondent No.1 on~ 10th February, 1982 orally, but, again, in the body of the Talaqnama, 1 there is no mention of the fact that the said Talaq was given in the! presence of any witness. However, the said Talaqnama at the end! mentions the names of two witnesses (1) Muhammad Taqi and (2) Hameedul Hasan. There also appear two signatures purported to be of the said witnesses. In his deposition the petitioner has, however', stated that the Talaq was pronounced in the presence of witnesses, but none of the witnesses have been produced in the Court. On the basis of this evidence, I find myself in agreement with the learned counsel for the respondent that the divorce was not pronounced in presence of two witnesses as required under the Shia law. The mention of two witnesses at the bottoms of Talaqnama can, at best, be said to be the attesting witnesses of the Talaqnama itself, but not of the actual pronouncement of Talaq on 10‑2‑1982.

111. As regards oral pronouncement of the Talaq by the husband in Arabic language or otherwise, it does not call for consideration by me in the case, as the condition of the presence of witnesses at the time of pronouncement of Talaq, which is of an absolute nature, has not been proved.

112. As regards the recital of Sigha of talaq in the appointed words, the inability of the petitioner to recite them in the appointed words in the Arabic language is proved by the very fact that he appointed Vakil to recite the Sigha of Talaq, but it is not shown on the record that the said Sigha were pronounced by the petitioner's Vakil. Even if the intellectual incapability of reciting Sigha of Talaq by the petitioner is accepted, the obstacle in his way for the absence of witnesses at the time of pronouncement of Talaq still remains there.

113. In view of the above, I am of the view that no valid Talaq a,5 required by the Shi ah law was pronounced by the petitioner. It may, however, be added that notwithstanding this observation, the petitioner will be at liberty to pronounce fresh Talaq to his wife, keeping in view the requirements prescribed under the Shi ah law. It may, however, be stated that, according to a tradition of the Holy Prophet, Talaq in the eye of Allah, is most undesirable among lawful things )as narrated by Abdullah Ibn 'Umar in Sunan Ibn Majah.

114. Now, I revert to the reliefs claimed in the petition, as already quoted by me in the opening para.of this judgment. For the detailed reasons, as aforesaid the declaration as sought in sub‑para. (a) is refused. The Talaq pronounced by the petitioner on 10‑2‑1982 is invalid in the eye of Shi ah Personal Law to which the parties admittedly belong. Relief as sought in sub‑para. (b) is granted. The orders impugned in this petition viz. order dated 18‑10‑1982 and judgment and decree dated 30‑7‑1984 passed by the learned Family Court on the original side, as well as order dated 12‑9‑1983 and judgment in appeal dated 24‑2‑1986 by the appellate Court are declared as passed without lawful authority and of no legal effect. The prayer contained in sub‑para. (c) is refused, as no valid divorce was pronounced by the petitioner. The relief claimed in sub‑para.(d) is also refused. No injunction can be granted to the petitioner as respondent No.1, in the circumstances of the case, continues to be the wife of the petitioner.

115. In result, the petition is disposed of in terms stated above. There will, however, be no order as to costs. M. B.A. /Q‑10/ K Order accordingly.