1994 PLP 1674 (CLC)

(1) Whether the suit is mala fide? OPD. (2) Whether the plaintiff is estopped by his words and conduct to file the present suit? OPD. (3) Whether the plaintiff has got no cause of action? OPD. (4) Whether Mst. Noor Jehan defendant No. 1 was divorced by Ahmad Yar s/o Muhammad Bakhsh? OPD. (5) Whether the plaintiff is owner in possession of 1/2 share of property of deceased Ahmad Yar as legal heir and Mutation No. 1055 dated 15‑3‑1990 is illegal, void, against the law and facts and liable to be set aside? OPP. (6) Relief.

2. Both parties led evidence in support of their respective contentions. Besides oral evidence in support of the plea that respondent No: 1 was divorced by her husband during his lifetime, the petitioner produced in evidence a photostat copy of Talaqnama Exh. P.

1. Learned trial Court after scanning of .the whole evidence vide judgment and decree dated 11‑10‑1992 held that it is not established on record that Mst. Noor Jehan defendant No. 1 was divorced by Ahmad Yar deceased during his life time, therefore dismissed the suit. Aggrieved of this judgment and decree the petitioner filed regular first appeal in the District Court which has been dismissed by the learned Additional District Judge Chiniot vide judgment and decree dated 22‑5‑1993, hence this civil revision has been filed by the plaintiff.

3. Malik Allah Yar Khan Advocate has appeared on behalf of the petitioner whereas Mr. G.H. Khan, Advocate has appeared on behalf of the contesting respondents. Learned counsel for the petitioner has vehemently argued that from the oral as well as documentary evidence on record particularly the photostat copy of Talaqnama Exh. P. 1 it stands established that Mst. Noor Jehan respondent No. 1 had been divorced by her husband during his lifetime, therefore, she could not have inherited him after his death, but the two Courts below have misread the evidence on record and have illegally held that respondent No. 1 was not divorced. Learned counsel has further criticised the judgment and decree rendered by the learned District Court saying that the same is not in accord with the provisions of Order 41 Rule 31, C.P.C. inasmuch as the whole evidence has not been discussed therein, and that the judgment has been rendered on the basis of surmises and conjectures. Elaborating his last limb of argument learned counsel has pointed out that the main plea which has weighed with the learned lower Appellate Court for upholding the judgment of the trial Court regarding issue of Talaq is that an old man will not ordinarily divorce his wife in old age. Learned counsel submits that it is just a conjectural supposition and cannot be relied upon as a ground for holding that the divorce actually had not taken place. I have asked the learned counsel to point out any misreading or non‑reading of evidence. Learned counsel states that except the above criticism, it cannot be said that it is a case of misreading or non‑reading of evidence. On lily query learned counsel has conceded that Talaq was not routed through Chairman Union Council in terms of the provisions of Family Laws Ordinance, 1961. However, he contends that under the Muslim Laws Talaq becomes effective even if it is not routed through Chairman, Union Council as the provisions of section 7 of Muslim Family Laws Ordinance are against the injunctions of Islam, are void. In support of his contention he has placed reliance. on case of Allah Banda v. Mst. Khurshid Bibi and 2 others (1990 CLC 1683).

4. As against the above arguments Mr. G.H. Khan, Advocate, learned counsel for the respondents has contended that concurrent findings of fact regarding pronouncement of Talaq by Ahmad Yar deceased upon respondent No. 1 cannot be interfered with in exercise of the revisional jurisdiction of this Court as no evidence has been misread or omitted from consideration and further that alleged Talaq not having take place in accord with the provisions of Muslim Family Laws Ordinance, 1961, it cannot be said that a legal and effective divorce has been given to respondent No. 1 by the deceased during his lifetime, hence she has inherited the deceased rightly in accordance with law of the land and the judgments and decree rendered by the two Courts below are unexceptionable.

5. I have considered the arguments addressed by the learned counsel for the parties and have gone through the record. Admittedly in this case, respondent No. 1 has been divorced in accordance with the provisions of section 7 of the Muslim Family Laws Ordinance, 1961, which provision is reproduced as under:‑ Section 7. (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 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), a 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 purpose 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 Talaq is pronounced, Talaq shall not be effective until the period mentioned in subsection (3) or the pregnancy, whichever be 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." It is an established legal proposition that if a thing is provided to be done in a particular manner, it has to be done in that manner and if not so done the A same shall not be lawful, therefore, it cannot be said that in accord with the law of the land respondent No. was divorced by Ahmad Yar deceased during his lifetime. Case of "Allah Banda" (supra) referred to by the learned counsel for the petitioner is based upon a Karachi judgment wherein his Lordship relying upon the provisions of Article 2‑A of the Constitution of Islamic Republic of Pakistan has held that High Court is competent to hold that the provisions which are against the injunctions of Islam are void. This view however is contrary to the view taken in "Hakim Khan's" case reported as 1992 SCMR 531 wherein their Lordships of the Supreme Court of Pakistan have held that the High Court is not competent to declare a particular provision of law as repugnant to the injunctions of Islam and strike it down. It is for the Federal Shariat Court or the Legislature to declare and amend the law suitably. Admittedly, the case in hand has been decided in the heirarchy of civil jurisdiction vested in the Courts below as well as this Court. Law Courts hence have to decide a dispute in the light of the law of the land which requires that Talaq will become effective only if it is routed through Chairman, Union Council concerned in accordance with the provisions of Muslim Family Laws Ordinance, 1961 which is a valid statute. Consequently, even if Exh. P. 1 is held to be a valid document, it cannot be said that respondent No. 1 was validly divorced by her husband during his lifetime. Examined this case on facts as well I find that evidence produced by the petitioner in support of the plea of divorce is contradictory and has rightly been disbelieved by the two Courts below for valid reasons. No effort has been made to bring on record the original Talaqnama. There are serious contradictions in the statements of the witnesses produced by the plaintiff. P.W.1 while appearing as a witness stated that he cannot rule out possibility of fraud at the time of completion of Talaqnama as is clear from the following portion of the statement:‑ Consequently,, he has further shown his ignorance regarding the factum of affixation of thumb marks or divorce by Ahmad Yar deceased as is clear from the following reproduced portion of his statement:‑ P.W.2 Muhammad Ali who alleges himself to be a marginal witness of Talaqnama has stated in Court that the divorce took place 10 years earlier. In cross‑examination he has admitted that Ahmad Yar was 60 years of age and was a T.B. patient. This witness is also a relative of Muhammad Siddiq plaintiff. Regarding identification also Muhammad Siddiq defendant is not in a position to make a positive statement as is clear from the following portion of the statement which has also been taken note of by the learned‑ Appellate Court:‑ It is now well‑established legal proposition that even probability is a strong piece of evidence as held in cases of Said Wali v. Yaqoot Khan (PLD 1983 SC 440) and Fazle Ghafoor v. Chairman, Tribunal Land Disputes, Dir, Swat at Chitral at Mardan and 6 others (1993 SCMR 1073), therefore, the fact that Ahmad Yar deceased was an old man and was a T.B. patient and was having a daughter from respondent No. 1, there is a strong probability that he would never like. To divorce his wife at this stage of his age, and, therefore, there is nothing wrong if this probability has been taken into consideration by the learned lower Appellate Court for upholding the findings of fact recorded by the learned trial Court regarding issue of divorce. Objection of the learned counsel regarding the violation of Order 41, Rule 31, C.P.C. by the lower Appellate Court while writing of the appellate Judgment is mis-concerned as p the said Court has substantially complied with the aforementioned provisions and at any rate I have myself gone through the evidence and am of the view that finding of fact rendered by the lower Courts are unexceptionable. Hence findings of both the Courts below are upheld. In view of the above, I see no force in this civil revision, hence the same is dismissed with costs throughout. AA./M‑1542/L Revision dismissed.