2010 PLP 582 (YLR)

MS. JAMILA JAHANOOR ASLAM, J.

The dispute giving rise to filing of present writ petition arises from a matrimonial matter between the petitioner and respondent No.1.

2. The petitioner and respondent No.1 were married on 11-5-2003. Two daughters were born in this wedlock, one of them died when only 20 days old. The custody of the surviving daughter namely Saneela Safdar is with respondent No.1 who, subsequent to being turned out of the marital abode on 22-6-2007, filed a suit for recovery of her dower, dowry articles and maintenance for the Iddat period as well as past and future maintenance of the minor respondent No.2.

3. It is mentioned in the plaint for the suit filed by respondent No.1 that the petitioner expelled respondents Nos. 1 and 2 from the marital abode on 27-2-2007 and thereafter he paid no maintenance to respondents Nos.1 and 2 and the dowry articles given to respondent No.1 are with the petitioner and that as the petitioner had divorced her vide divorce deed, dated 27-2-2007, a notice of which was sent to the Chairman Arbitration Council, therefore respondent No.1 is now entitled to the recovery of 10 Tolas of gold ornaments as mentioned under Clause 17 of the Nikahnama.

4. The petitioner filed the written statement to the suit filed by respondents Nos. 1 and 2 and denying all her averments. He also filed a suit for restitution of conjugal rights nearly three months later on 3-9-2007. Both the suits were consolidated.

5. Out of the divergent pleadings of the parties the following issues were framed: (i) Whether the plaintiff No.1 is entitled to get "Haq Mahar" of 10 Tolas gold ornaments? OPP (ii) Whether the plaintiff No.1 is entitled to get maintenance allowance for the period of "Iddat" from the defendant" OPD (iii) Whether the plaintiff No.1 is entitled to get dowry articles according to the list annexed with the plaint or in alternative Rs.2,15,000 as price of dowry articles? OPP (iv) Whether the plaintiff No.2 is entitled to decree for recovery of maintenance allowance, if so, at what rate and for what period? OPP (v) Whether the defendant is entitled to the decree for Restitution of Conjugal Rights as prayed for? OPP (vi) Relief.

6. After framing of issues the trial commenced and both the parties presented their evidence. The list of dowry articles presented by respondent No.1 was Exh.P/1, as opposed to this the petitioner presented his own list of dowry articles as Exh.D/3. The Nikahnama was Exh.P/2. The divorce deed is on file as Mark "A/1", the letter of revocation sent to Chairman Arbitration Council and his order is Exh.D/2 and the affidavit of the petitioner qua the mistake of divorce being pronounced three times with the fatwa in Mark "A".

7. The Counsel for the petitioner contends that he had indeed divorced respondent No.1 on 27-2-2007 and also intimated the Chairman Arbitration Council under the provisions of section 7(1) of the Muslim Family Laws Ordinance 1961. He also claims that the divorce was pronounced three times by mistake. The fatwa is on the back of the affidavit. Thus, he claims no divorce has taken effect so he is not required to hand over the gold ornaments to respondent No.1 as promised under clause 17 of the Nikahnama.

8. The trial Court (respondent No.4) vide its consolidated judgment/decree dated 14-3-2008 decreed the claim of the respondents for recovery of maintenance allowance, maintenance for the period of Iddat, Haq Mehr and dowry articles but it did not award the jewelry given by the parents of respondent No.1 at the time of Nikah. The suit of the petitioner for restitution of conjugal rights was dismissed.

9. Both the parties were aggrieved by the judgment/decree of the trial Court and both preferred appeals before Additional District Judge, Talagang (respondent No.3). Both the appeals were consolidated and vide its consolidated judgment/decree dated 18-9-2008 upheld the judgment/ decree of the trial Court.

10. The petitioner being aggrieved of the judgment/decree dated 18-9-2008 as well as the judgment/decree dated 14-3-2008 has raised the matter in present writ petition.

11. The petitioner's contentions, according to his Counsel, are that both the impugned judgments/decree are based on misreading and non-reading of evidence; the list of dowry articles presented by respondent No.1 is fake and fictitious and the one presented by him is the true one but both the Courts below have failed to appreciate this. He further contends that both the Courts below have not decided the matter of the subsistence or not of the marriage of the parties, neither was any issue qua the matter of the divorce framed by the trial Court. He avers that his affidavit which proves that the pronouncement of divorce three times was a mistake and the fatwa thereof, the revocation letter to the Chairman Arbitration Council and his orders on it E have not been addressed by the Courts below. His main contention is that respondent No.1 is still the petitioner's legally wedded wife thus not entitled to recovery of the 10 Tolas of gold ornaments. Which were due only in case of divorce.

12. He also avers that because respondent No.1 did not file a writ after the dismissal of her appeal goes to show that her claims were false. This is not tenable so I will not dwelt on it at all.

13. The Counsel for the petitioner has placed reliance on PLD 1982 FSC

156. The facts of that case are totally distinguishable from the one in hand. He has also relied on 1984 SCMR

583. In this judgment the Honourable Bench has decided the matter of validity of divorce in case of the wife, who was divorced and died before the expiry of the Iddat period. This is not the case in present matter.

14. The Counsel for respondent No.1 vehemently opposes all the arguments extended by the counsel for the petitioner.

15. With the able assistance of both the Counsel and after perusing the record in great detail I have arrived at the following conclusion, which will decide the fate of this writ petition.

16. The main issue to be decided here is as to whether the marriage of the parties subsists or not and this will decide all points of dissension conclusively. First of all I do not agree with the contentions that there has been any misreading or non-reading of evidence. If the petitioner was aggrieved of the fact that no particular issue had been framed qua the divorce he had the choice to file an application for framing that issue. Even if the issue has not been framed issue No.5 in itself decides the matter of divorce. The findings of both the Courts below are right on the mark. To put a finer point on it and to clear any ambiguity the petitioner may feel is there. I would like to point out that for-a start he had conveyed the intention of Talaq-e-bayan to respondent No.1 which is irrevocable. There is no ambiguity in the divorce deed and his affidavit is not at all tenable. In Muhammadan Law by Ameer Ali at page 491 it is written "in consideration of the question of Talaq, it is necessary to bear in mind the difference as to the legal effects which arise from the form in which the formulae are pronounced. It has already been stated, that a Talaq, in view of legal consequences arising from it, is either bayan (complete or irrevocable). A Talaq-e-Bayan involved a definitive dissolution of marriage without reservation of the power of retraction. A Talaq-e-bayan takes effect immediately after the formulae are pronounced, under the following circumstances (a) when there has been no co-habitation etc". The main points herein are that the intention of divorce was conveyed unambiguously and thereafter to date there has been no co-habitation. The petitioner as well as respondent No.1 admit this fact. I would also like to point out that in the fatwa on the back of the affidavit it is stated that he has to co-habit during the Iddat period for the Talaq to be considered ineffective. Although the notice of revocation was within the Iddat period the fact that the parties did not retire (Khilwat-us-Sahih), has made the divorce effective. It is mandatory that after revocation of divorce there is co-habitation, in the absence of which and after a ninety days period after pronouncement of divorce be it bayn, Ahsan or Hassan the divorce will become effective.

17. Also in the Tafseer-e-Quran Volume I by Mufti Muhammad Taqi Usmani, on page 72 in the explanation of Ayat No.123 of Surah al-Baqarah, it is written, "By the present the verse, power of husbands was restricted to divorcing twice only. The verse means that the proper way of divorcing one's wife is that the divorce is pronounced twice at the most. So long as the number of divorce is not more than, it is open for the husband to revoke his divorce during the period of `iddat', in which case they may resume their material relations. Without entering into a new marriage, and even after expiry of `iddat' they may enter into a fresh marriage by mutual consent". In his Tafseer of Ayat No.125 of the same Surah he writes "the husband should not divorce thrice, so that all options remain open for the spouses. But if someone gives the third divorce also, then the wife becomes unlawful for him in the sense that he can neither revoke his divorce nor can he contract a fresh marriage with her". By divorcing respondent No.1 three times in one go the petitioner has forfeited his right to claim her as his lawfully wedded wife. Any affidavit claiming that the three times pronouncement was a mistake is a bit late in the day for rectifying his mistake and that too only for his own convenience.

18. As far the gold ornaments there is no uncertainty or ambiguity in the writing on the Nikahnama. It is categorically and in no uncertain terms written that gold ornaments weighing ten Tolas are deferred dower. On one hand the petitioner claims that respondent No. 1 is not entitled to the gold ornaments on the other hand he states that she took them with her. This makes his credibility doubtful.

19. The dowry articles stand admitted as the petitioner says that respondent No.1's father had taken Rs.2,45,000 from him at the time of the wedding. His entire cross-examination is full of dichotomies thus his credibility is doubtful. There has been no misreading or non-reading of evidence whatsoever. Both the Courts below have given due consideration to all the evidence, oral as well as documentary.

20. The impugned judgments/decrees are not at variance. Both the Courts below have arrived at the same conclusion. There is no irregularity, infirmity or illegality in them.

21. The writ petition is devoid of merits. It stands dismissed. M.U.Y./S-122/L Petition dismissed.