1990 PLP 1683 (CLC)

10. As mentioned above, the parties are Sunni Muslims and governed by the Hanfi Fiqa as expounded by Imam Abu Hanifa. Hence, the reply to the question as to whether the Talaq Badie dissolves the marriage at once would be replied in the light of the interpretation of the Qur'an and Sunnah of the said sect. This would be in consonance with the letter and spirit of the explanation given under Article 227 of the Constitution.

11. In page 559 the discussion about the modes of Talaq starts. After discussing two kinds of Talaq, i.e. Talaq Ahsan and Talaq Hasan, the learned commentator has clearly opined at page 562 that Talaq pronounced thrice in one sitting dissolves the marriage. The relevant portion is reproduced below:‑ In compiled by Abdur Rehman Al‑Jazeeri at page 624, it has been opined as under:‑ Then the author has referred to the of Hazrat Umar and stated that when the people started pronouncing Talaq frequently then he ordered that three Talaqs pronounced at a time would dissolve the marital bond. The learned author failed to consider that even during the lifetime of the Holy Prophet (may peace be upon him), in some cases the husbands pronounced Talaqs thrice which displeased the Holy Prophet (may peace be upon him) but he did not order that the marriage had not been dissolved. In v~O;;ah.Volume I (page 560), Maulana Muhammad Shari has referred to the tradition of the Holy Prophet (may peace be upon him) in which he expressed his anger on hearing about pronouncement of three Tala s by a person at a time. The Holy Prophet (may peace be upon) did not declare that the said Talaq was only one or that it did not dissolve the marriage. In the case of Hazrat Awaimer Ajalani who had pronounced Talaq thrice, the Holy Prophet (may peace be upon him) enforced the Talaq. The traditions reported in 4 Volume II pertaining to Talaq pronounced thrice have also been discussed by the learned commentator. He has opined that some people used to pronounce Talaq by using the w rd "BITTAH" which ordinarily indicated three Talaqs. Hazrat Rukana had divorced his wife by using the said word but later stated on oath that he actually meant to pronounce only one Talaq. Thereupon, the Holy Prophet (may peace be upon him) declared it to be one Talaq. The tradition pertaining to the case of Hazrat Rukana is reported in various books of Ahadees including Tirmizi, Abu Daud, Ibne Maja and Darmi. In some of the books, instead of "Bittah", a reference to three Talaqs has been made. The possibility that the person, who pronounced the Talaq by using the word "BITTAH", really intended one Talaq, could not be excluded and in the case of Hazrat Rukana, the matter was got clarified on oath but in matters in which there is no ambiguity and Talaq is pronounced thrice in clear words, the marriage is ipso facto dissolved. While dealing with this mode of Talaq, Maulana Mufti Muhamm d Shat has opined as under:‑‑ Imam Abu Hanifa also held the view that Talaq pronounced thrice in one sitting dissolved marriage. In compiled by Imam Muhammad published by Muhammad Saeed & Sons, Karachi, at page 220, a tradition has been quoted, which is reproduced below:‑ Thereafter, it has been mentioned that Imam Muhammad as well as imam Abu Hanifa agreed with the view of Ibnc Abbas. 1n 5 Volume IV published by Nafees Academi Karachi, page 185, the view of Imam Abu Hanifa has been expressed as under:‑‑

12. It was urged by the learned counsel for the petitioner that the provisions of section 7 of the Muslim Family Laws Ordinance were violative of the limits prescribed by the Almighty Allah and that it disabled a Muslim to order his life in accordance with the teachings and requirements of Islam. Hence, this Court should strike it down on the basis of the newly‑inserted Article 2‑A of the Constitution. He placed reliance on the case of Mirza Qamer Raza v. Mst. Tahira Begum (P L D 1988 Karachi 169).

13. By virtue of Article 2‑A of the Constitution of the Islamic Republic of Pakistan, the Objectives Resolution has been made a substantive part of the Constitution and has to be given effect accordingly. The said Resolution is annexed to the Constitution and need not be reproduced here. All the principles and the provisions embodied in the Objectives Resolution are no longer a pious wish embodied in the preamble but are a substantive part of the Constitution and enforceable. The Objectives Resolution can be termed as the ground norm which embodies the conscience of our body politic and provides the firm foundation for raising the sublime edifice of an Islamic society. As long as it remained a part of the preamble it was not considered to be enforceable. Reference may be made to the case of Zia‑ur‑Rahman v. The State (P L D 1986 Lahore 428). While dealing with the position of the preamble, the renowned Jurist and Ex‑Chief Justice of the Supreme Court of Pakistan, M. Munir, opined as under in his book (Constitution of the Islamic Republic of Pakistan Act, 1973):‑‑ "This preamble has sometimes been referred to as a supra‑Constitutional instrument and the grund norm by which the constitutionality of the provisions of the Constitution is to be judged. But this view is clearly erroneous and has been rejected by the Supreme Court in The State v. Zia‑ur‑Rahman, where it has been held that the Objectives Resolution is neither the grund norm of Pakistan nor a Supra‑Constitutional instrument and that though it has never been repealed or renounced it has not the same status or authority as the operative part of the Constitution itself unless it is incorporated therein and included in its substantive part." (Underlining is mine). Now the Objectives Resolution has been made a substantive part of the Constitution by virtue of Article 2‑A of the Constitution. The said Article cannot be interpreted so as to dilute its effect and again relegate the Objectives Resolution to the position of a Preamble. Among others, the following two principles are prominent in the Resolution:‑ (1) The sovereignty over the entire Universe belongs to Allah and the State (through its people) exercises the delegated authority within the limits prescribed by Him and the said authority is a sacred trust. (2) The Muslims have to be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah. If any organ of the State goes beyond the said limits its action can be declared to be without lawful authority on the touchstone of limits of Allah and requirements of Islam as set out in the Holy Qur'an and Sunnah. This question was examined at length in the case of Mirza Qamar Raza v. Mst. Tahira Begum and another (P L D 1988 Karachi 169) and it was held that even the laws protemd under Article 270‑A of the Constitution, if found repugnant to the Holy Qur'an and Sunnah, the Courts in Pakistan would be bound to ignore and overstep such a provision as the same does not conform to the Supreme Laws of Almighty Allah. C A similar view was expressed in the case of Shahbaz‑ud‑Din Chaudhry v. Services Income Tax Ltd. Lahore (P L D 1988 Lahore 1). While declaring Riba/interest to be un‑Islamic and against the public interest; it was held as under:‑‑ "In view of the aforentoted Injunctions contained in the Holy Qur'an and the Traditions of the Holy Prophet (p.b.u.h.) elimination of Riba from the Society and from the economy is the bounden duty of the State. The Courts while remaining within their domain and limits of jurisdiction are also under Constitutional mandate in view of the inclusion of Article 2‑A in the Constitution, to act in accordance with the injunctions of the Holy Qur'an and Sunnah." Article 227 (1) of the Constitution also requires that all existing laws shall be brought in conformity with the injunctions of Islam. It further contains a command that "no law shall be enacted which is repugnant to such injunctions". If the legislature oversteps the limits and enacts a law contrary to the injunctions of Islam, the superior Courts, in appropriate proceedings, can strike it down as being un‑Islamic. In the case of Mian Aziz A. Sheikh v. The Commissioner of Income‑Tax Investigation Lahore (P L D 1989 S C 613), it was held as under:‑ "In the context of the present case, neither the legislature, under the command contained in Article 227 (1) has the power to enact a law in any field including those relating to Taxes, which is repugnant to injunctions of Islam; nor any other functionary including the Income‑tax Authorities has any such power to lay down any un‑Islamic rule, which has a force of law." It was further held that superior Courts, in properly instituted proceedings can strike down a rule of law (as being un‑Islamic), both under the general mandate contained in capuase (1) of Article 227 as well as under Article 2‑A of the) Constitution read with the Objectives Resolution.

14. The controversy in the present case relates to effectiveness of Talaq pronounced thrice in one sitting. Subsection (3) of section 7 of the Muslim Family Laws Ordinance provides that the Talaq shall not be effective till the expiration of 90 days from the day on which notice under subsection (1) is delivered to the Chairman. It also provides scope for revocation of the Talaq during the said period of 90 days. As observed above, talaq pronounced thrice in one sitting becomes effective immediately. In such an eventuality, the question of its revocation does not arise. While dealing with a similar question in the case of Mirza Oamar Raza referred to above, it was held that the provisions of section 7 of the Muslim Family Laws Ordinance relating to divorce were repugnant to Islam. The discussion on the subject was summed up as under:‑ (1) 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 the talaq for 90 days from the date of the receipt of notice is also against the injunctions of the Holy Our'an and Sunnah. A talaq, if otherwise valid under Qur'an and Sunnah 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 even issue a certificate to make the divorce effective or declare the same as ineffective. The certificate of confirmation, even 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 other cause) will be in accordance with the injunctions 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 Qur'un the periods. According to Hanafis the meaning of the word 00ru'in the Our'an is "menses" (monthly course) whereas according to the Shafi'is and the Shiahs it means "purity" (from menses). The minimum and maximum period of menstruation based on the narrative of Hazrat Ali, as fixed in the Shari'ah is 3 days and 10 days respectively, whereas there is 00 minimum or maximum period of purity is 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 menses 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 monthly course is to ascertain whether she is pregnant or not. It is a settled rule of Islamic jurisprudence that the fixation of maqadeer Shar'i numbers of quantities by Shari'ah is not based on Qisas, analogy or experiments (like raka 't of salat prayers etc. When Qur'an 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 wife menstruating prescribed by the Holy Qur'an 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 a certain, period 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 see Interpretation of Statutes by Maxwell). (iv) Prescribing 90 days period for effectiveness of all kinds of divorces, including a wife, who has been divorced by her husband without consummation of marriage, is against the manifest injunction of the Qur'an and Sunnah. (v) The period as prescribed in the case of a pregnant wife, is repugnant to the injunctions of the Qur'an and Sunnah. (vi) The right to remarry 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 and 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 the right to property such as will and inheritance. The dictate of the Qur'an and Sunnah must, therefore, be strictly I adhered to. I respectfully follow the views expressed in Mirza Oamar Raza's case. In the case of Ijaz Haroon v. Inam Durrani (P L D 1989 Karachi 304), the question of repugnance of interest/Riba to the injunctions of Islam and enforceability of Article 2‑A of the Constitution was examined. The observation about the validity of section 7 of the Muslim Family Laws Ordinance was a mere obiter dicta and with profound respect, I do not agree with the said observation. In the peculiar facts of the case, the other judgments cited by the learned counsel for the petitioner are not relevant and need not be discussed.

15. In the light of the above discussion, I hold that in the present case, talaq pronounced by the petitioner thrice on 9‑10‑1987 became effective immediately. It was neither revoked by their petitioner nor could it legally be revoked. Hence, there is no merit in this writ petition which is dismissed, leaving the parties to bear their own costs. M.B.A./A‑1008/L Petition dismissed.