P (PLP)

M. KHURSHID ZAMAN, J.‑The suit out of which this second appeal has arisen was instituted by the respondent against the appellant, his stepmother, for a declaration that the appellant was not entitled to inherit any portion of the estate of his deceased father, Su bedar Major Khan Bahadur, as she had been validly divorced by him before his death. In the alternative, he prayed for possession of the laud in case it was found that the appellant was in possession ‑of it. The suit was necessitated by the land having been mutated in the names of the appellant and the respondent in equal shares. Mst. Lalan appellant denied the allegation that she had been divorced by her husband and pleaded that the suit for a mere declaration was not competent as she herself was in, possession of the land in suit. The learned Sub- Judge, who tried the case, framed the following issues :‑

1. Had Subedar Major Khan Bahadur validly divorced the defendant during his lifetime?

2. Relief. The talaqndma, which was relied upon by the plaintiff and which; according to his case, was delivered to the defendant soon after its execution, was not produced, but secondary evidence of its contents was given. After considering the entire evidence on the record and' the probabilities of the case, the Sub‑Judge came to the conclusion that the plaintiff had succeeded in, establishing that the defendant had been validly divorced by Khan Bahadur in his life‑time. Having further held that a suit for mere declaration was not competent, he granted the plaintiff a decree for possession of the land in suit against the defendant with costs. On appeal by the defendant (the appellant before us), the Additional District 'Judge affirmed the decree of the learned Sub‑Judge and dismissed the appeal with costs. On one point, the learned Additional District judge differed from the finding of the learned Sub‑Judge. The learned Sub‑Judge had held that the divorce bad been duly communicated to the defendant. The learned Additional District judge was, however, of the view that the evidence produced by the plaintiff in support of this part of his case was not disinterested and therefore he preferr ed to ignore it. He, however, agreed with the conclusion of the learned Sub‑Judge on the main issue on the ground that under Muhammadan Law communication of divorce to the wife is not necessary for its validity. Against the appellate decree of the learned Additional District Judge, the defendant preferred an appeal to this Court and it was contended on her behalf, firstly, that their was no legal evidence on the record, to prove the alleged divorced and, secondly, that the divorce not having been communi cated to her was not valid under Muhammadan Law. The first contention was based on two grounds. Firstly, it was contended that, since no formal notice under section 66 of the Evidence Act was given by the plaintiff to the defendant, secondary evidence of the contents of the divorce deed could not be legally received. This objection is easily met, for clause (2) of the proviso to section 66 dispenses with notice when, from the nature of the case, the adverse party must know that he will be required to produce the document in question. It cannot be seriously denied that, from the nature of the present case, the defendant must have known that she would be required to produce the divorce deed. It is, therefore, obvious that the objection to the reception of second ary evidence to prove the contents of the divorce deed is without substance. Secondly, it was argued that the contents of the divorce deed were sought to be proved by the oral evidence of persons who had not "seen it" within the meaning of clause (5) of section 63 of the Evidence Act, the relevant portion of which reads as follows :‑-- "Secondary evidence means and includes‑

(5) oral accounts of the contents of a document given by some person who has himself seen it". It was argued that the words "seen it" mean that the person who is giving secondary evidence must have read the contents of the document and in the present case the two witnesses, Subedar Khadim Khan (P. W. 2), and Jarnedar Sarwar Khan (P. W. 3), who were examined as the plaintiff's witnesses to prove the contents of the divorced deed, do not State that they read the contents of the document. For this proposition, the learned counsel relied on Ma Mi v. Kallander Ammal (A. I. R. 1927 Privy Council 15). In that case, several of the witnesses deposed to having heard the talaqnama read out, and to having seen it execut ed by the deceased, but the writer of the document was not called and none of the witnesses had read it so as to be able to speak de visu to its contents. On these facts, the Rangoon High Court held that there was no legal evidence of the contents ‑ of the divorce document, as the evidence tendered in the absence of the document itself was not secondary evidence within the meaning of section 63 of the Evidence Act. Having come to this conclusion, the learned judges proceeded to hold that a divorce by talaqnama or writing was not proved; and they, being further of opinion that no oral divorce was proved by the evidence on the record, allowed the appeal and decreed the plaintiff's suit. From this decision of the High Court, an appeal was taken to the Privy Council and their Lordships approved of the High Court's interpretation of section 63 and observed :‑-- "In their Lordship's opinion the learned judges were right in holding that this means that the oral evidence of the contents of the document must be given by some person who has seen those contents, that is to say, who has read the document. Evidence that the witness saw the document and heard it read out by some one else is only hearsay so far as the contents are concerned and does not fulfil the requirements of section 60 as to oral evidence generally :*********************** question whether the document was a talaqnama or deed of divorce was a fact which could be seen by reading it and there fore in accordance with the general principle embodied in the section could only be spoken to by a witness who had himself read it". It is true that in the present case Subedar Khadim Khan (P. W. 2) and Jamedar Sarwar Khan (P. W. 3) only state that they saw the document being written and executed but they do not say further that they signed it in the capacity, of attesting witnesses after reading its contents. Therefore, if there were no other material on the record in proof of the contents of the divorce deed, we would have held that there was no legal evidence of its contents; but in the present case the writer of the divorce deed Muhammad Akram (P. W. 1) was also called to give evidence for the plaintiff and he stated that he had written the divorce deed at the instance of Subedar Major Khan Bahadur. In his cross‑examination, be was asked to reproduce what he had written in the divorce deed and he wrote out Exh. P. W. 1/1 which runs as follows :‑

"I, Subedar Major Khan Bahadur, caste Bhattt, Rajput, resident of Kabal, tahsil Gujar Khan, married Mst. Lalan, daughter of Fazal Khan, caste Bhatti, Rajput, resident of Kabal, tahsil Gujar Khan, District Rawalpindi, about 18 years ago. Thereafter, she lived with me as my wife for some time. Differences have arisen between us during the last two or three years which have disturbed our domestic peace. I have made several attempts to bring her to her senses but she would not listen to me. Now my patience is exhausted and I release my wife Mst. Lalan by divorcing her in accordance with Shariat. In other words, I have rendered her haram on my person by pronouncing three talaqs and henceforth I have no (conjugal) rights or obligations towards Mst. Lalan my wife and she is at liberty to marry any one she likes and live wherever she wishes. I have no concern whatsoever with her. I execute this divorce deed in the presence of the attesting witnesses, so that it may serve as proof of what is stated therein ". In our opinion, the contents of the divorce deed are satisfac torily proved by the evidence of Muhammad Akram. The next question to be considered is whether, in view of the finding of the learned Additional District judge that the delivery of the divorce deed to Mst. Lalan was not satisfactorily established, the talaq can be held to have been validly given. The learned counsel for the appellant has relied on the following passage from Mr. Ameer Ali's book on Muhammadan Law (Volume II) which occurs on page 485 :‑ " It is not necessary for the husband himself to pronounce the talaq in the presence of the wife, but it is necessary that it should come to her knowledge." The learned counsel for the appellant contended that the langu age of the rule stated by Mr. Ameer Ali strongly suggested that the talaq to be valid must be communicated to the wife. In our opinion, this is not the correct interpretation of the rule quoted above. In the first place, the rule does not expressly state that the knowledge of the wife is necessary for the validity of talaq. Secondly, such an interpretation would be irreconcilable with the absolute right of a Muslim husband which he undoubtedly posses ses, to divorce his wife at his sweet will. Thirdly, the learned author himself further clarifies the position on page 490 in the following words:‑- " As stated already, a talaq pronounced in the absence of the woman is valid, but, until it comes to her knowledge, she is entitled to her maintenance." When the two passages quoted above are read together, they can only mean that, although knowledge of the wife is necessary for certain other collateral purposes, communication is not necessary for the validity of talaq. Divorce by writing has been recognised by all the Muslim jurists of Hanafi School as one of the forms of talaq‑ul.bid'at. On page 485 of his book, Mr. Ameer Ali classifies this form of talaq in the following, words :‑ " Writings, among the Hanafis, are said to be of two kinds, viz., marsumah (customary) and ghair marsumah (not customary). When repudiation is given by a writing of the description called customary, it is effective, even when there is no real intention on the part of the husband to divorce the wife. But where the writing, though marsumah, is written so that it is not intelligible, or if it is written on something that cannot be deciphered, there will be no talaq, even if he had the intention. In the case of non‑customary writings, if there be any ambiguity, the talaq will not take effect ; when there is no ambiguity and the meaning of the writer is `manifest', the repudiation is valid." A more detailed discussion of these two forms of repudiation by writing is to be found on page 233 of the Digest of Muhammadan Law by Baillie. The relevant passage reads as follows :‑‑ " Writings are of two kinds: marsoom, or customary and ghair mursoom, or unusual. The former are those which are properly superscribed and addressed, being such as are written to absent persons, and bear on their face, from such an one to such an one. The latter are those which are not so superscribed and addressed, and they are also of two kinds moostubeen, or manifest, and ghair moostubeen, or not manifest: the manifest being such as are written on paper, or a wall, or on the ground, in such a manner that they can be comprehended and read ; and those which are not manifest are such as are written on the air, or water, or something that cannot be comprehended and read. By writings that are not manifest repudiation cannot be effected, even though intended ; whereas, by writings that are manifest, though not customary, repudiation is effected, when such is the intention, but not otherwise ; while by writings of the customary, or regular description, it‑ is effected, whether intended or not. Writings of this kind may either be so expressed that the repudiation takes effect on the mere writing, as when a person having prefaced his letter with the usual compliments, says, 'But after these you are repudiated', whereupon repudiation takes effect, and an iddat becomes obligatory on the woman from the time of writing. Or the writing may be so expressed as to make the repudiation dependent on the receipt of the writing as if one were to write, `When this my letter reaches thee then thou art repudiated;' in which case repudiation does not take effect till the actual receipt of. the letter. And if a person should write to the‑ effect that `When this my letter reaches thee then thou art repudiated,' and after that should proceed to write of his affairs, and the letter should reach its destination, repudiation would take effect, whether the letter be read or not." The above passage is a verbatim translation of a passage occurring in section 6, Chapter II of Fatawa‑i‑Alamgiri, Volume

11. In the original work, several other instances of divorce by writing are given, one of which is that, if a person wrote to his wife about his affairs and in the end added "When this my letter reaches thee then thou art repudiated " and then scored off the sentence relating to divorce, the repudiation would take effect when the letter reaches its destination. In the last case, mentioned in the passage from Baillie quoted above, the wife is repudiated even if there is evidence to show that she did not read the letter. In the case quoted from the original book, the wife is repudiated even though the sentence relating to divorce has been erased from the letter. As explained by Muslim jurists, the real difference between marsumah and ghair marsumah forms of writing is that in the former case the writing operates as talaq even though there is no intention to divorce but in the latter case it takes effect if the intention is manifest and not otherwise. But in neither case the validity of talaq is made dependent on the knowledge of the wife. This rule appears to apply also to lalaq given by word of mouth. There are infinite forms in which a Muslim belonging to Hanafi sect may divorce his wife. Many of these are given in the text books by way of illustrations. These forms are either express (sarih) or ambiguous (kinavat). One of the examples of express repudiation, which is cited in some of the standard text books, is this: A says to B " Have you not repudiated your wife ?" B. answers " True "the wife is repudiated (see section I, Chapter II of Fatawa‑i‑Alamgiri, Vol. II and Digest of Muhammadan Lay by Baillie, page 214 (Second Edition). Now, this talk has evidently taken place in the absence of the wife. Still the repudiation takes effect immediately and before it is communicated to the wife. From what is stated above, it is clear that, if the intention of the husband to divorce his wife is manifest, the writing, whether it is in marsumah form or ghair marsumah form, effectuates talaq‑ul‑bain (irrevocable divorce). This form of talaq is discussed in Article 61 of Wilson's Muhammadan Law. Article 61 reads as follows :‑‑-- "

61. The divorce called talaq may be either irrevocable (bain) or revocable (raja'i). A talaq bain, while it always operates as an immediate and complete dissolution of the marriage bond, differs as to one of its ulterior effects according to the form in which it is pronounced. A talaq bain may be effected by words addressed to the wife clearly indicating an intention to dissolve the marriage either,‑ (a) Once, followed by abstinence from sexual intercourse, for the period called iddat ; or, (b) Three times during successive intervals of purity, i. e. between successive menstruations, no intercourse taking place during any of the three intervals ; or, (c) Three times at shorter intervals, or even in immediate succession ; or, (d) Once, by words showing a clear intention that the divorce shall immediately become irrevocable. The first‑named of the above methods is called ahsan (best) ; the second hasan (good),; the third and fourth are said to be bidaat (sinful), but are nevertheless regarded by sunni lawyers as legally valid." This statement of law has been accepted as correct by their Lordships of the Privy Council in Saiyid Rashid Ahmad v. Mst. Anisa Khatun (A. I. R. 1932 P. C. 25). The words of the divorce deed in the present case, as pro ved by secondary evidence, indicate a clear intention on the part of Subedar Major Khan Bahadur to divorce his wife, and there fore, whether the divorce deed falls in one or the other category of divorce by writing (marsumah or ghair marsumah), it took effect immediately as talaq‑ul‑bain (irrevocable divorce). We now proceed to consider the various authorities cited to us by the learned counsel for the' parties. The earliest case is Furzand Hussain v. Janu Bibee (I. L. R. 4 Cal. 588). The plaintiff in this case instituted a suit for conjugal rights against his wife. The suit was resisted on the ground that the defendant had been divorced by the plaintiff. The plaintiff had pronounced the word "talaq" three times without addressing it to any person in an assembly where he and certain others who were called by him as panchayats, as well as his wife's relatives, were present. The formula was pronounced under the belief that the. defendant seas not his lawful wife. This belief was induced by certain false representations made by the wife and her parents. Upon these facts, the Court of first instance held that, as the defendant by making false representations to the plaintiff induced him to believe that Janu Bibee was‑not his legally married wife, and to go through the form of divorce under that belief, whereas Janu Bibee was his lawful wife, the divorce was invalid. The Court of first appeal held that, although this fraud was practised upon the plaintiff, yet, as he had gone through the prescribed formula of divorce, it is valid according to Muhammadan Law. On further appeal to the High Court the learned judges observed :‑

"If the formula of divorce prescribed in Muhammadan Law books has been really pronounced by the plaintiff, the view of the Muhammadan Law taken by the Court of appeal is pro bably right. But upon the finding of the lower appellate Court, it seems to us that the prescribed formula has not been pro nounced by the plaintiff" They further proceeded to express the view that the word talaq" three times under the circumstances of the case does not constitute a valid divorce under Muhammadan Law. They then referred to the definition of talaq, as given in Hamilton's Hadaya Vol. I p. 200, which runs as follows:‑

"Talaq in its primitive sense means dismission in law ; it signifies the dissolution of a marriage or the annulment of its legality by certain words". They‑further went on to say: "Now what are these words to be pronounced ? In page 213 of the same volume, it is laid down that talaq sareeh, or express divorce, is where a husband delivers the sentence in direct and simple terms, as if he were to say 'I have divorced you', or 'you are divorced', which effects a talaq rajai, or divorce reversible, etc. "These are the ordinary forms of the formula to be pronounced in talaq‑sareeh, or express divorce. Then there are other forms of talaq‑keneyat, or divorce by implication, given in the same chapter of the Hadaya, where the passage quoted above occurs. From a careful examination of all these forms, it would appear that simply pronouncing the word 'talaq' is not sufficient to constitute a valid divorce". Then their Lordships referred to certain authorities cited in Baillie's Digest of Muhammadan Law and ended their judgment by saying :‑‑ "These authorities clearly show that a valid divorce in this case was not effected by the plaintiff' pronouncing merely the word 'talaq' three times. Therefore, we are of opinion that the conclusion to which the Court of first instance came is right, although not for the reasons given by that Court". The question before the Court was whether a divorce given by pronouncing certain words amounted to a valid divorce under Muhammadan law. The view taken by the learned judges in this case was considered and dissented from in Asha Bibi v. Kadir Ibrahim (I. L. R. 33 Mad: 22), which will be discussed presently. At the present stage, it is only necessary to say that Furzand Hussain v. Janu Bibee (I. L. R. 4 Cal. 588) cannot be said to be an authority for the proposition contended for by the learned counsel for the appellant. The next case to be considered is In re. Rajasaheb Rasul saheb (I. L. R. 44 Born. 44). In this case the wife applied to the Magistrate for maintenance for herself and her daughter under section 488, Criminal Procedure Code, on the 22nd July 1918 and obtained an order granting Rs. 10 p. m. for their maintenance. On the 14th December 1918 the husband made an application to the Magistrate for the cancellation of the said order‑in favour of his wife on the ground that as he had divorced her‑ he was no longer bound to maintain her. The learned Magistrate was of opinion that the talaqnama on which the husband relied was not valid as it was not made in the presence of a Qazi. The husband then applied to the Sessions Court but that Court refused to take any action on his application, although it was of opinion that the `talaqnama was valid. He then applied ‑ to the High Court for revision of the order made by the Magistrate and urged that the talaqnama was valid. The learned judges, who heard the revision petition, were of the opinion that the talaqnama was valid according to Muhammadan Law, although it had not been made before a Qazi or in the presence of the wife and although no attempt appeared to have been made immediately on the execution of the talaqnama to communicate it to her. They. however, pointed out that the talaqnama had come to the notice of the wife when the husband made the application for the can cellation of the order of maintenance and this, in their opinion, was sufficient to satisfy the .requirements of Muhammadan Law, In support of this view, they relied on certain observations in Sarabai v. Rabiabai (I. L. R. 30 Bom. 537), Ful Chand v. Nazab Ali Chowdhri (I. L. R. 36 Cal. 184) and Asha Bibi v. Kadir Ibrahim (I. L. R. 33 Mad. 22). In Sarabai v. Rabiabai (I. L. R, 30 Born. 537) A, a Muhammadan belonging to the Hanafi Sunni sect, took with him two witnesses and went to the Qazi and there pronounced but once the divorce of his wife in her absence A had a talaqnama written out by the Qazi, which was signed by him and attested by the witnesses. A then took steps to com municate the divorce and make over the iddat money to the wife but she evaded both. A died soon after this. The wife thereupon filed a suit alleging that she was still the wife of A and claimed maintenance and residence. The suit was resisted inter alia or. the ground that mere declaration in the absence of the wife was not enough and the pronouncement of " talak dia " will amounl to a valid talaq only if it is communicated to the wife. Overruling these contentions Batchelor, J., who beard the suit in the firs instance, held that a bain talak,' such as the present, reduced to manifest and customary writing, took effect immediately on the mere writing. The divorce being absolute, it is effected as soot as the words are written " even without the wife receiving the writing ". In the course of his judgment the learned Judge observed :‑ " Then there is a third objection, namely, that this divorce cannot be considered final because it was never communi cated to plaintiff. The evidence is quite clear that every prac ticable step was taken to communicate the divorce and make over the addat money to the plaintiff, and that these measur es, if they were frustrated, were frustrated solely by her own obstinate refusal to accept the paper or the moneys. In these circumstances, it would be a strange result if plaintiff were allowed to take advantage of her own inaccessibility. But I find nothing in Muhammadan Law to countenance such a con clusion. On the contrary, the authorities show that a bain talaq such as this reduced to manifest and customary writing, takes effect immediately on the mere writing ; see, e.g., Baillie, page 233 ; Moulvi Muhammad Yusoof, Vol. I If, page

95. The divorce being absolute, it is effected as soon as the words are written even without the wife receiving the writing." The learned judges who decided In re. kajasaheb Rasul saheb (I. L. R. 44 Bom.44) relied on the first part of the passage quoted above. But it is obvious that Batchelor J intend ed to emphasize the fact that a barn talaq reduced to manifest and customary writing, takes effect immediately on the mere writing and his judgment proceeds on the ground that the divorce in such a case being absolute is effected as soon as the words are written " even without the wife receiving the writing ". This case is also no authority for the proposition that the com munication of talaq to the wife is necessary for its validity, On the other hand, this ruling positively helps the respondent inas much as it lays down that in case of Talaq-ul‑baits no communion to the wife is necessary. In Asha Bibi v. Kadir Ibrahim (I. L. R. 33 Mad. 22) the suit was brought by a husband against his wife for restitution of conjugal rights. The suit was resisted on the ground that the plaintiff had divorced the defendant some time before the institution of the suit by pronouncing talaq three times. The talaq was pronounced in the presence of the wife's father but not in her presence. The trial Court believed the evidence adduced on behalf of the defendant on the question of the talaq, but the District Judge in appeal did not come to any finding on the question whe ther talaq was in fact pronounced, as alleged, but, being of opinion that the words of repudiation must be addressed to the wife, held that, as talaq was not shown to have been addressed to the defendant, it would not be effective to dissolve the marriage. On further appeal to the High Court, the learned Judges were of the view that the District judge in holding that the three pronounce ments of talaq did not effectuate a divorce because they were addressed to the defendant's father, although they undoubtedly deferred to the defendant, took an erroneous View of the Hanafi Law which was the, law of both the parties or the subject. They observed: " According to the principles of that law the husband, as we shall see, has an absolute right to dissolve the marriage, and the only condition for a valid exercise of such a right is that he must be major and of sound mind at the time. The wife's 'consent or absence of consent to the action of her husband is immaterial and there is nothing therefore in the reason of the law why in order that divorce pronounced by a husband should be valid the words of repudiation should be addressed to or uttered in presence of the wife. All that the law requires is that the words should refer to the wife though if they be not communicated to her at the time a question may possibly arise as to whether she is not entitled until she comes to know of the divorce to bind her husband by certain acts such as pledging his credit for obtaining the means of subsistence ". In this case, as in the other cases cited above, the question which we have to decide, did not directly arise ; but the last few lines in the quotation cited above have a material bearing on the question whether it is necessary for the validity of talaq that it should be communicated to the wife. The view expressed by the learned judges seems to be that the failure of such communication would not affect the validity of talaq, although it may be material in deciding collateral questions, such as the right of the wife to receive maintenance until she comes to know of the divorce. It is true that this opinion is expressed by way of obiter dictum but, coming, as it does, from a Bench of which Abdur Rahim J. was a member, it must be given due weight. The question before us directly arose in Ahmad Kasim Molla v. Khatun Bibi (A. I. R. 1933 Cal. 27). The plaintiff Ahmad Kasim Molla instituted a suit seeking a declaration that he had validly divorced his wife Khatun Bibi. He also asked for an injunction restraining her from taking out a certain sum of money deposited by him in the Court of the Presidency Magistrate. The case for the plaintiff was that he had divorced his wife in accordance with Muhammadan Law and that he had duly intimated to the defendant that such divorce had been pronounced by him. The defendant denied the alleged divorce and, alternatively, pleaded that, if she had been divorced, she had no knowledge of it. The material facts are that the plaintiff pronounced the word " talaq " three times in the pre. sence of five witnesses and then executed a talaqnama. The talaqnama was sent to the defendant care of her father by registered‑post but the letter came back endorced by the Postal authorities with the word " refused ". Costello J., who heard the suit on the original side of the High Court, refused to infer that the defendant had the knowledge of the divorce in the absence of any evidence to show that she was aware of the nature of the document or that she refused to accept the registered cover because she knew that it contained the divorce deed. It was, therefore, assumed for the purposes of the case that the defendant had no knowledge of the divorce. Proceeding on this assumption, the learned judge held that it was not necessary for the wife to be present when the talaq was pronounced. He further held that a talaq made by a written instru ment is valid notwithstanding that it is not brought to the notice of the wife; the only question which arises in such a case is ‑with regard to the wife's maintenance during such period as may elapse until the fact of the execution of the talaqnama comes actually to the knowledge of the wife." This ruling is clearly against the appellant. Now coming to our own Court two cases have been cited :

1. Rasul Bakhsh v. Mst. Bholan (A. I. R. 1932 Lah. 498) and

2. Muhammad Ishaq v. Mst. Sairan (A. I. R. 1936 Lah. 611). In the first of these cases Rasul Bakhsh v. Mst. Bholan (A. I. R. 1932 Lah. 498), the appellant instituted a suit that Mst. Bholan respondent was the divorced wife of Fateh Khan deceased and had no right of inheritance as a widow. It was held by both the trial Court and the District judge that a deed of divorce was executed by Fateh Khan but‑ that ‑Fateh Khan did not actually intended to divorce Mst. Bholan, that the fact of divorce was not communicated to her and that she did not come to know of the existence of the deed of divorce till after the death of Fateh Khan. The deed was in the form of a declaration by Fateh Khan and was not addressed either to Mst. Bholan or any other person. On these facts the trial Court held that divorce had become effective from the date of the execution of the deed, it being immaterial when it came to the wife's notice. ‑ The District judge,. however, held that, if the husband did not wish the divorce deed to have effect during his life‑time and the wife had no knowledge of the divorce, the deed should not have effect after his death. In his opinion, there was no valid divorce by Fateh Khan and Mst. Bholan remained his wife till the time of his death. Against this decision of the District judge, the plaintiff appealed to the High Court. The first question to be decided was whether a divorce deed executed by a husband can have effect even though the in tention of divorcing his wife is absent at the time of the exe cution of the deed. The learned judges, who heard the appeal, were of the opinion that the writing in question was in the form of manifest, though not customary. According to Muhammadan Law such a writing would not take effect as valid divorce in the absence of intention to divorce. As already stated, both the trial Court and the lower Appellate Court had given the finding that such intention was absent. In view of this finding, which was a finding on a question of fact, the learned judges held that the execution of the document did not amount to a valid talaq. On the facts of that case the correctness of the decision cannot be challenged. The facts of the present case are clearly distinguish able from the facts of that case, as in the present case both the learned Courts below have found that the document was executed by Subedar Major Khan Bahadur with the intention to divorce his wife. In deed, there are strong indications in the language used in the talaqnama, as proved by Exh. P. W. 1/1, that he executed the document with the intention to divorce his wife. Such being the case, the talaqnama, even if it be held to be in the non custo mary form of writing, took effect as immediate and irrevocable talaq. In the next case Muhammad Ishaq v. Mst. Sairan (A. I. R. 1936 Lah. 611), it was conceded that if the divorce was in writ ing and in customary form, no notice of it to the wife was legally necessary. After giving the matter our careful consideration, we have come to the conclusion that the weight of authority is in favour of the view that the validity of talaq‑ul‑bain (irrevocable divorce) is not affected by the failure of the husband to communicate it to his wife. For the reasons stated above, we would dismiss the appeal but leave the parties to bear their own costs throughout. A. H. Appeal dismissed.