Divorce

Scribe of alleged Talaq-Nama stated that deceased was identified by his son who happened to be a Patwari and as such a direct beneficiary of alleged Talaq-Nama remained on front foot without associating any independent person with the process of execution of alleged Talaq-Nama

Identity of deceased was not established before scribe of the deed through independent, trustworthy and confidence inspiring evidence

High Court in exercise of revisional jurisdiction set aside judgments passed by Trial Court and Lower Appellate Court and petitioner was held entitled to her Shari share in the legacy of her deceased husband

High Court directed the Trial Court to revoke earlier succession certificate and issue a second succession certificate duly reflecting share of petitioner along with all other legal heirs of deceased

Revision was allowed accordingly.

Petitioner/husband was aggrieved of judgments and decrees passed by two Courts below fixing maintenance allowance of respondent/ wife and minor children

Plea raised by petitioner/husband was that he had divorced respondent/wife

Validity

High Court in Constitutional jurisdiction refrained from interfering in findings of fact recorded by two Courts below, as they were not contrary to record nor arbitrary or whimsical

Bald assertions and no specific instance was brought to the notice of Court that could be regarded as case of misreading or non-reading of material evidence having direct and decisive bearing on the issues causing miscarriage of justice

Both the Courts below exercised jurisdiction vested in them without violating any principle governing assessment and appraisal of evidence

Constitutional petition was dismissed, in circumstances.

Holy Quran declares that women have rights against men, similar to whose that the men have against women according to well-known rules of equity

Husband should either retain his wife, according to well-recognized custom or release her with grace

Word of Allah enjoins the husband not to cling to the woman, in order to cause her injury

Furthermore a hadith declares that "Let no harm be done, nor harm be suffered".

Held, during the period of 90 days, if husband was alive, he would have had the option to revoke the divorce pronounced by him

Procedure provided under law required reconciliation proceedings to be initiated and only on expiry of 90 days, divorce was to become effective

On the date husband died, divorce having not become effective in terms of S.7, Muslim Family Laws Ordinance, 1961, wife committed to be his widow and was entitled to inherit his property.

Petitioner/husband contended that as spouses reconciled before ninety days so the Chairman was not justified in issuing the certificate for effectiveness of divorce

Chairman contended that husband did not inform about reconciliation so he was justified issuing the certificate in the light of statement of husband to that effect

Validity

Marriage could be dissolved by husband at his will without intervention of the Court and husband who wanted to divorce his wife should, as soon as might be, after the pronouncement of talaq, give the Chairman, Arbitration Council a notice in writing of his having done so and should supply a copy thereof to the wife

Talaq did not become effective until the expiry of ninety days from the date of delivery of such a notice, unless same was revoked earlier expressly or otherwise

Word "Talaq" in S. 7 of Muslim Family Laws Ordinance,1961 referred to any form of talaq, whether irrevocable or not and by whatever name called, be talaq-e-ahsan, talaq-hasan or talaq-e-biddat

No provision of Muslim Family Laws Ordinance,1961 required the Chairman, Arbitration Council to issue a certificate of effectivness of talaq

Chairman was just to record in writing whether or not reconciliation between the spouses had failed within the period of ninety days of the delivery of the notice of talaq

After the expiry of the period as prescribed by S.7 the divorce became effective automatically

Chairman, though was not vested with the authority to annul a divorce after it became effective upon the expiry of ninety days but in the event the couple, prior to the expiry of the said ninety days, reconciled their differences and get back together which would imply the revocation of the talaq, Chairman could take into consideration such fact and recall the certificate of effectiveness of divorce and would note that the talaq had been revoked prior to the expiry of ninety days of the delivery of receipt of notice of talaq by the Chairman, Arbitration Council

Husband and wife had executed a razinama prior to the expiry of ninety days of the issuance of the notice of talaq by husband but could not inform the Chairman as father of husband had passed away during such period

Spouses had reconciled the differences which would imply that divorce had been revoked and there would be no impediment for the Chairman to note that the talaq pronounced by husband had become ineffective

High Court set aside the impugned certificate issued by the Chairman and the matter was remanded to the Chairman who would determine afresh as to whether husband had revoked the talaq prior to the expiry of ninety days of the delivery of the notice

Constitutional petition was allowed accordingly.

Shia personal law of divorce was not so strict so as to make a woman slave of the man who would always remain unable to get divorce without his permission

Wife who had been delegated the right of divorce by the husband could pronounce divorce by sending a notice in writing to the Chairman Union Council

Such notice had to be sent to the Union Council of the union where wife to whom Talaq had been pronounced was residing at the time of the pronouncement of Talaq

Notice had to be sent to the Union Council where Nikah was registered in case of divorce by the wife with delegated powers by the husband

No illegality had been committed while issuing certificate of effectiveness of divorce

Constitutional petition was dismissed in circumstances.

Contention of wife was that she was not served with notice of divorce in UK through Pakistan Commission and Chairman Union Council was not competent to issue certificate of divorce

Validity

Both the spouses were holding dual nationality and were residing in UK at the time of execution of divorce deed

Divorce deed was completed in UK and husband appointed his arbitrator through a special power-of-attorney sent from abroad

Secretary Union Council served notice to the wife through her father when she was residing in UK at the same time

Wife was never served with any notice at her address in UK

Husband had remedy of approaching the Pakistan Mission in UK for reconciliation or effectiveness of divorce deed

Husband had submitted himself to the jurisdiction of Family Division of High Court of Justice, London, UK and said court had assumed jurisdiction in the matter

Proceedings in family matters were to be instituted where the children or wife were ordinarily residing

Both the parties were permanent residents of UK and Arbitration Council in Pakistan had no jurisdiction to proceed in the matter

Proceedings initiated against the wife were in violation of law and rules and were based on mala fide of public functionaries

High Court in constitutional jurisdiction had power to grant relief to the aggrieved party when statutory functionary had acted mala fide or in a partial, unjust and oppressive manner

Impugned divorce certificate was declared to be null, void and of no legal effect

Constitutional petition was accepted in circumstances.

Wife filed suit for dissolution and cancellation/termination of marriage in the light of divorce deed which was decreed by the Family Court

Contention of husband was that Family Court could not pass declaration as asked for and notice for divorce had been subsequently withdrawn

Validity

Husband had right to withdraw the notice of divorce within 90 days which he had failed to do

Divorce had become effective and irrevocable and matrimonial bond had come to an end on expiry of 90 days

Question of dissolution of marriage should be raised and adjudicated upon before and by the Family Court

Right of appeal had been provided to a person who was aggrieved of a decision given or a decree passed by Family Court

Family Court had given declaration qua the non-existence of marriage inter se parties

Impugned judgment and decree passed by the Family Court being appealable, constitutional petition was not maintainable

Constitutional petition was dismissed in limine.

Marginal witness of Talaq Nama was cross-examined but no suggestion was put up that the husband had divorced or had executed the impugned Talaq Nama

No specific mode was prescribed in Muslim Personal Law or Muslim Family Laws Ordinance, 1961 for pronouncement of divorce

Muslim could pronounce a divorce orally or in writing

Divorce in writing would become irrevocable under Muslim Personal Law

Non-issuance of notice under S.7 of Muslim Family Laws Ordinance, 1961 did not invalidate divorce under Islamic Law

Divorce would become effective even in the absence of notice under S.7 of Muslim Family Laws Ordinance, 1961 to the Chairman of Arbitration Council after expiry of period of Iddat

Civil cases had to be decided on the basis of preponderance of evidence of the parities

Findings recorded by both the courts below did not suffer from any factual or legal infirmity, mis-reading or non-reading of evidence rather same were based on true appreciation of evidence available on record

Revision was dismissed in circumstances.

Legal position that revocation of divorce was within the prescribed period of ninety days and same was not effective before such period

Scope

Contention of wife was that divorce had become irrevocable after expiry of ninety days

Validity

Issuance of notice of divorce to the Chairman Arbitration Council was not mandatory

Divorce would become effective after expiry of ninety days from the date of its pronouncement and not from the date of issuance of notice of such divorce to the Chairman Arbitration Council

Husband, in the present case, pronounced divorce to the wife on 18-3-2013 and period of Iddat of ninety days expired on 17-6-2013 and divorce was irrevocable on 20-6-2013 when notice for withdrawal of same was issued

Chairman Arbitration Council was directed to issue divorce certificate to the wife forthwith

Constitutional petition was accepted in circumstances.

Marriage could abe dissolved by husband at his will without intervention of the court-Man who wished to divorce his wife should as soon as might be after pronouncement of Talaq give the Chairman Union Council a notice in writing of his having done so and should supply a copy thereof to the wife

Talaq would not be effective until the expiry of 90 days unless same was revoked earlier expressly or otherwise.

Court could reduce the amount of compensation where fault was found on the part of husband and even might grant divorce for Khula without any compensation.

Fatwa on the back of the affidavit stated that defendant had to cohabit during the Iddat period for the Talaq to be considered same ineffective

Although the notice of revocation was served within the Iddat period the fact that the parties did not retire (Khilwat-us-Sahih), had made the divorce effective

It was mandatory that after revocation of divorce there should be co-habitation, in absence of which and after expiry of ninety days period after pronouncement of divorce, it might be Bayan, Ahsan or Hassan, the divorce would become effective

Plaintiff and defendant had admitted that there had been no cohabitation

Defendant had pronounced divorce three times and had forfeited his right to claim her as his lawfully wedded wife

Any affidavit claiming that the three time pronouncement was a mistake was a bit late in the day for rectifying his mistake

High Court declined interference in constitutional petition, which was dismissed.

Right of divorce once granted could not be unilaterally revoked.

Husband administered the divorce and notified the same to Chairman of Arbitration/Union Council whereupon certain proceedings were taken and ultimately a certificate for the effectiveness of divorce was issued through the- impugned order Wife was well aware of the fact that husband had pronounced divorce to her for which consequential proceedings before the Arbitration/Union Council had also been taken

Father of the wife had been pursuing the matter before Arbitration Council

Case of the wife who had challenged effectiveness of the divorce was that the submission of divorce deed with a notice before the Arbitration Council could not, ipso facto, operate and result into the dissolution of marriage

In the present case it could not be disputed that the period much beyond 90 days had expired from the date of notice of the divorce when impugned certificate of its effectiveness was issued; in the circumstances, especially keeping in view all the relevant facts of service of notice on the Chairman Union Council, the initiation of the proceedings by the Arbitration Council, the repeated appearance of father of the wife who was holding a power of attorney on her behalf in those proceedings and actual knowledge of the wife about the pendency and fact of those proceedings, divorce and its pronouncement had become effective

Failure to send a notice to the Chairman of the Arbitration Council would not render the divorce in-effective in Shariah

Effect of pronouncement of divorce in Shariah would not justify interference with impugned order nor would warrant exercise of discretion in favour of the petitioner/wife under Art.199 of the Constitution.

Such was an overt act on the part of husband which could indicate a clear intention to annul the marriage to operate as a divorce

No particular form of words was prescribed for effecting a Talaq

If the words of 'Talaq' were clearly expressed, and very well understood as implying divorce, no proof of intention was required

Not necessary that divorce should be pronounced in the presence of the wife or even addressed to her.

Both the parties being permanent residents of U.K. and as such vide Notification S.R.O.1086(K)/61 dated 8-11-1961 the functions of Chairman Arbitration Council under Muslim Family Laws Ordinance, 1961 were to be performed by an appointed officer of the Pakistan Mission in U.K.

Contentions of the petitioner (husband) was that both the lower courts had failed to appreciate that there was no matrimonial relation between the parties, but there was specific issue on the point which could have been decided by the courts below

Petitioner had failed to point out that he had made an application in respect of the said issue for its amendment before the lower courts or that actually he had divorced his wife in accordance with Muslim Family Laws Ordinance, 1961

No notice of Talaq was available on the file as required by S.7, Muslim Family Laws Ordinance, 1961, even in the grounds of appeal there was nothing in respect of the contention of the petitioner that Trial Court, despite request, failed to frame issue on the subject nor the Appellate Court was requested about the same

High Court declined interference with the concurrent judgments of lower courts, in revision.

Distinction between the two' is that Khula' is a form of dissolution of marriage for a consideration to be paid by wife, where a Qazi or Judge decides the same to be a fit case for dissolution

Where a wife has developed such dislike or aversion that she cannot live with husband under any circumstances and pays consideration to him for the same, then she has a right to approach the Court to obtain dissolution of marriage bond from her husband.

(Private International Law)-Divorce will be recognised as valid (in other countries) if law of domicile permits dissolution of marriage by pronouncement of talaq-[Marriage before Registrar of Marriages performed at Hull, England, between Pakistani and woman of German nationality]-[ Muhammadan Law-Talaq].

Divorce Divorce-Ground for-Desertion- "Constructive desertion" Factum of desertion-Intention to bring the matrimonial union to an end-Proof of intention-Inferred from conduct, even in the presence of desire that probable result of conduct should not ensue-Marriage Act, 1928 (No. 3726) : [State of Victoria (Australia)].