P L D 1965 (W (PLP)

(Sd ) Suraiya Ahmad Pai, A. C. M., Karachi 27‑5‑63."

3. It was as against this order, the wife, Mst. Salma Begum filed Revision Application No. 153/63 in the Court of Sessions at Karachi, which has resulted in the present reference.

4. In his referring order, the learned A. S. J. has pointed out that the alleged divorce granted by the husband to his wife is no divorce for three reasons: "(a) A Talak under Shia Law communicated in writing is not valid unless the husband is physically incapable of pronouncing it orally. (b) Oral Talak in Shia Law should be pronounced by the husband in the presence of two witnesses and the wife in set Arabic phraseology. There was no such proof on record. (c) On 20‑2‑64 there was produced before this Court a certified copy of judgment in Suit No. 260/203 of 1963, passed by learned Civil Judge Mr. Wajid Ali Shah declaring as void and invalid the alleged divorce by the husband."

5. I have heard S. Anwarali, Advocate, on behalf of the wife, Salma Begum, the husband, Syed Abid Zaidi, in person, and Mr. Haleem, Assistant A.‑G. on behalf of the State. The learned Assistant A.‑G. supports this reference for the three reasons mentioned in the referring order. Mr. S. Anwarali in support of his contention "that a talak under the Shia Law to be valid, must be communicated orally by the husband in the presence of the wife and two witnesses, and in set Arabic phraseology, has relied upon the case of Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf Khan (P L D 1963 S C 51). He has invited my attention to para. 32 at page 72 of the judgment of S. A. Rehman, J., and to the passage therein where His Lordship states :‑

"These text books writers, moreover, are unanimous in stating that according to Shia doctors, the talak must be orally pronounced by the husband, in the presence of two witnesses and the wife, in a set form of Arabic words." The learned Advocate has also relied upon the judgment of Shabir Ahmad, J. at the original trial of the same case, Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf Khan (P L D 1962 Lah. 558) wherein the same view has also been expressed. Shabir Ahmad, J. stated in his judgment. "It is mentioned in all text‑books without an exception that in order that a talaq given by a Shia male to his wife be valid, it must be pronounced in the presence of the wife and two witnesses and that a written divorce deed would be invalid unless it be established that the husband was incapable of pronouncing the talak in the manner mentioned above." Mr. S. Anwarali has also invited my attention to Mulla's Principles of Mahomedan Law where it is again stated that a Talaq under Shia Law must be pronounced orally in the presence of two competent witnesses, and a talak communicated in writing, is not valid unless the husband is physically incapable of pronouncing it orally.

6. In view of this position of the law, then, I have no other alternative but to accept this reference, and to set aside the order of the Lady Magistrate dated 27‑5‑

63. This reference is, therefore, returned to the Court of the A. S. J., Karachi, duly accepted. K. B. A.?????????????????????????????????????????????????????????????????????????????????????????????? Reference accepted.