1995 PLP 218 (MLD)

Date of hearing: 27th April, 1994. The facts in brief are; the petitioner was married with respondent No.l on 17‑5‑1985. According to him, allegedly a divorce was pronounced on 15‑5‑1986. Respondent instituted a suit for maintenance on 29‑8‑1988 at the rate of Rs.3,000 per month and it was claimed that she lived in the house of the petitioner for about four months whereafter she was turned out of his house by the petitioner while she was pregnant and she was forced to live with her parents. She gave birth to a son Umer Shahid and despite the subsistence of marriage the petitioner had not paid any maintenance to her. The petitioner resisted the suit and contended that divorce having become final he was not liable to pay any maintenance to respondent No.l. Parties led their evidence on the issues arising out of their pleadings. Learned Judge Family Court came to the conclusion that divorce has been pronounced by the petitioner which became effective on 15‑8‑1986 and respondent No.l was entitled to recover maintenance at the rate of Rs.600 per month with effect from 1‑9‑1985 to 15‑8‑1986. This is vide judgment dated 19‑7‑1990.

2. Feeling aggrieved, respondent No.l filed an appeal. This appeal was accepted on 15‑10‑1991. Finding of learned Judge Family Court that divorce had been pronounced by the petitioner was set aside. Learned Additional District Judge observed that the petitioner in support of his plea of divorce had examined two witnesses besides himself who deposed that divorce was orally pronounced. According to him, it was obligatory upon the petitioner to issue notice to the Chairman, Union Committee concerned as contemplated under section 7 of the Muslim Family Laws Ordinance and in the absence of such a notice no valid divorce could be held to have taken place. Consequently respondent No.l was held entitled to maintenance at the rate of Rs.600 per month from 1‑9‑1985 onward "till she is taken back by the respondent in his house as his wife or she is divorced in accordance with law‑‑‑‑". Hence this writ petition.

3. It is submitted by the learned, counsel for the petitioner that the learned Additional District Judge has erred in law to hold that due to no issuance of notice under section 7 of Muslim Family Laws Ordinance valid/effective divorce had not taken place. He has placed reliance on Allah Dad v. Mukhtar Ahmad 1992 SCMR 1273.

4. On the other hand, learned counsel for respondent No. 1 has argued that in view of the latest pronouncement of Supreme Court of Pakistan in "Mst: Kaneez Fatima v. Wali Muhammad and another" PLD 1993 SC 901, the requirement of issuance of a notice to the Chairman of the concerned Union Committee where respondent No. 1 resided at the relevant time, not having been complied with, she continued to be the wife of the petitioner and no divorce would be deemed to have taken effect.

5. Legal position on the subject stands finally settled by the authoritative pronouncement of their Lordships of Supreme Court in Mst. Kaneez Fatima's case (supra), it has been held as under: ‑‑ "However, keeping in view the facts of each case the applicability and interpretation of section 7 has to be construed in that light. In a case where with the consent of both the parties divorce is effected and confirmed in writing under their undisputed signatures section 7 should not be strictly construed particularly in cases where penal provision of section 7(2) is to be enforced because in such cases the parties do not wilfully commit breach and bona fide believe that they have been divorced with the consent of each other and sending notice to the Chairman, Union Council, is merely a formality. The notice can be sent a any time thereafter to comply with the provisions of section

7. Where such view has been taken but its validity has been challenged, the Court would be justified to refuse to issue writ and exercise its jurisdiction." In the instant case, since respondent No.l had denied the factum of divorce, it was incumbent for the petitioner to prove due fulfilment of requirement of section 7 of Muslim Family Laws Ordinance, 1961 and he having failed to do so, it would be presumed that effective divorce had not taken place.

6. Thus no illegality was committed by learned Additional District Judge while passing the impugned judgment. Dismissed. No costs. H.B.T./S‑505/L ?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.