1993 PLP 2181 (CLC)

(2) Whether the plaintiffs have a cause of action for the‑present suit? (3) Whether the present suit is barred under Order 2, Rule 2, C.P.C.? (4) Relief.

3. The learned trial Court vide judgment and decree dated 6‑5‑1971 dismissed the suit. Aggrieved of this judgment and decree, the petitioners filed regular first appeal in the District Court of Jhelum which was dismissed by the learned District Judge, Jhelum vide judgment and decree dated 14‑3‑1969, hence, this RSA has been filed by the plaintiffs.

4. Maulvi Amwarul Haq, Advocate has appeared on behalf of the appellants whereas Mr. Munir Ahmad Minhas, Advocate has appeared on behalf of the respondents.

5. Learned counsel for the appellants has argued that the provision of section 7 of the Muslim Laws Ordinance, 1961 according to which Talaq had to become effective after 90 days w.e.f. the date of issuance of notice of the Talaq has been declared as un‑Islamic as per law declared in the cases of Mirza Oamar Raza v. Mst. Tahira Begum and others (PLD 1988 Kar. 169) and Allah Dad v. Mukhtar and others (1992 SCMR 1273), therefore, notice of the Talaq having been received by the respondent No.1 during lifetime of Gheba Talaq had become effective, therefore, the two Courts below have illegally held that the respondent No.1 was a widow of the deceased and could inherit estate.

6. On the other hand learned counsel for the respondents has placed reliance on cases of Mst. Zakia Farooq v. Chairman, Union Council and another (1991 CLC 1720) and Khadim Hussain v. Additional District Judge, Rahimyarkhan, etc (NLR 1991 Civil 354) and has contended that 90 days having not expired from the date o: issuance of notice of Talaq the relationship between the spouses remained as that of wife and husband on the date of death of the last male owner and, therefore, it has rightly been held by the two Courts below that respondent No‑1 was wife of Gheba Khan deceased on the date of his death and. hence, has rightly been held to 1;tl en titled to inherit him as his widow.

7. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Muslim Family Laws Ordinance, 1961 is still on the statute book. Provision of section 7 thereof are reproduced as under:‑‑ Section

7. T".‑(1) 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 be 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 purposes of bringing about a reconciliation between the parties and the Arbitration Council shall take all steps necessary to bring about such reconciliation. (5) If the wife be pregnant at the time of 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 been terminated by Talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective. A perusal of the abovesaid provision dearly shows that Talaq does not become effective unless and until period of 90 days elapses w.e.f. date of receipt of notice of Talaq by the Chairman of the Union Council a copy whereof has been received by the wife. In the case in hand notice of Taiaq was received by the Chaitnan Union Council on 19‑5‑1969 and Gheba Khan last male owner of the land in question died on 14‑6‑1969, therefore, the period of 90 days had not yet expired. Had he been alive then arbitration council had to be constituted and he could have even withdrawn the notice of Talaq impliedly or expressly. Consequently Talaq having not become effective on the date when he died, the respondent No.1 shall be deemed to be his wife and, hence, entitled to inherit him as his widow. The case of `Mirza Qamer Raza' relied upon by the learned counsel for the appellant is not attracted in the case in hand. So far as the case of `Mirza Qamar Raza' from the Karachi jurisdiction is concerned, law declared therein cannot be followed in view of law declared in case of Hakim Khan and others v. Government of Pakistan through Secretary Interior and 2 others (PLD 1992 SC 595) wherein their Lordships of the Hon'ble Supreme Court while examining the scope of Article 2‑A of the Constitution of Islamic Republic of Pakistan have categorically held that the ordinary Court including the High Court has no jurisdiction to strike down the provision of a statute as being un‑Islamic under said Article. According to their Lordships provision of Article 203 of the Constitution of Islamic Republic of Pakistan specifically excluded the jurisdiction of other Courts to declare a law to be un‑Islamic. It has been held that it is Federal Shariat Court which has the jurisdiction to examine the law on the touchstone of Injunctions of Islam. Consequently respectfully following the law declared in Hakim Khan's case referred to supra that the provisions of section 7 of the Muslim Family Laws Ordinance, 1961 having not been declared un‑Islamic by the Federal Shariat Court, are still on the statute book and hence still hold the field. View taken in the case of "Allah Dad" is not attracted to the facts and circumstances of this case. In that case their Lordships have examined the question as to whether under the Hudood Ordinance offence of Zina, can be said to have been committed to a case where the provision of section 7 of the Muslim Family Laws Ordinance have not been complied with. It is in that jurisdiction that their Lordships have held that the offence of Zina is not constituted. This case being of civil nature has to be decided on its own merit. The widow cannot be deprived of her right to inherit her husband when the statute is clear on point that Talaq will not become effective unless and until period of 90 days elapses w.e.f. the date of issuance of the notice of Talaq to the Chairman of the Union Council. The matter in issue involved in this issue was not a matter in issue involved in the case of `Allah Dad' referred to supra, therefore, law declared therein will not govern this case and it is the case of `Hakam Khan' referred to supra which shall govern the decision of this case The two Courts below have acted in accord with the provision of law referrer to above and, therefore, judgment rendered by the two Courts below are unexceptionable. Resultantly, I see no force in this RSA. The same is, therefore dismissed with costs throughout.