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Petitioner: SHAUKAT HUSSAIN VS Respondent: Mst. RUBINA and others
Court Name: Sindh High Court Judge(s): Tanzil-ur-Rehman Title: SHAUKAT HUSSAIN vs Mst. RUBINA and others Case No.: Constitutional Petition No,S-25 of 1989, Date of Judgment:1989-05-18 Reported As: PLD 1989 Karachi 513 Result: Ordered accordingly.
Judgment ' This is a Constitutional Petition under Art.199 of th Constitution of Islamic Republic of Pakistan, 1973, praying, int alia, for setting aside the judgment and decree, dated 22-2-1989 an {{PAGE CUTT}} ' 3-1989 passed by the 9th Family Judge, Karachi in Suit No,29S of 88 and declaring the same as illegal, utilawful and void ab initic !d remand the abovesaid Family Suit to the trial Court for affording Opportunity to the petitioner to lead evidence and permit the titioner to cross-examine the respondent and her witnesses. The 'd petition was dismissed in limine by my order. Dated 23-4- 1989 reasons to be recorded later, which are as under:-- ' The facts giving rise to the above petition, briefly stated, that respondent No,1 was married to the petitioner on 7th May, 6 in accordance with Sunni Muslim Law. The Nikah was registered of the Muslim Family Laws Ordinance, 1961. ' Two male children were born out of the said wedlock aged ut 21 years and one year respectively. The petitioner after about month of the marriage, went back to Oman, where he was serving, ving respondent No,1 with his parents. The said respondent, as ged, was daily beaten, maltreated and insulted by the petitioner's ends and other family members of the petitioner. She was treated a maid-servant, and her parents were not allowed to visit the tiff. The petitioner returned to Pakistan on 21-7-1988. The actioner, after coming back to Pakistan, also started abusing, beating maltreating the respondent No,1 without any reasonable cause, the instigation of his parents and other family members. The itioner made life of the respondent No,1 most miserable by his elty of conduct and physical maltreatment. On or about 18-3-1988 respondent was abused, insulted and beaten by the petitioner was turned out of his house, after snatching the minor son ibly from the respondent and pronouncing oral divorce to her. 30th March, 1988 respondent No,1 submitted an
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application before Councilor, Union Committee No,44 about divorce. The Councillor d the petitioner who admitted before the Councillor that he has ly divorced respondent No,1 under anger. The Councillor directed parties by his panchayati faisla/sifarish (j.)11-/,..L.A..), dated 1988, directed the respondent to approach the Court of Law. Respondent then filed suit of dissolution of marriage against the tioner which was decreed in her favour by the learned Family ge, as aforesaid. ' It may also be mentioned that respondent No,1 had also filed s for recovery of her prompt dower in the sum of Rs,20,000 and maintenance, whereas tht petitioner had filed suit for restitution njugal rights. The three suits were consolidated and tried together decided by the learned Family Judge by his judgment, dated -1988, whereby the marriage was dissolved; Dower amount of 0,000 was ordered to be paid and maintenance at the rate of ,000 per month was allowed for three months for the period of only and the petitioner's suit for conjugal rights was dismissed. ' The petitioner has filed appeals against the decree passed nst him for payment of dower and maintenance and refusing itution of coojugal rights to him. Since no appeal is provided nst the decree of dissolution of marriage, the petitioner had no native but to file this Constitutional Petition. 6. Learned counsel for the petitioner has raised a number of contentions, namely:-- (i) The lecree has been obtained by fraud and is nullity in the eye of law. (ii) Respondents Nos.2 and 3, the petitioner's Advocates, appearing in the suit did not perform their professional duties properly and failed to cross-examine respondent No,1 and her witnesses 'being in league with respondent No,1' causing serious prejudice to the petitioner which has vitiated the entire proceedings. (iii) No notice having been sent by the petitioner to the Union Council, the Talaq did not become effective. In any case, absence of notice amounted to revocation of divorce. ' The first two grounds being interconnected are taken up together. It is submitted by the .Counsel that the petitioner had engaged two Advocates but they either failed to appear in the Court on the dates fixed or the time when the case was taken up and failed to cross-examine the respondent No,1 and her witnesses. It was further submitted that the petitioner was neither afforded any opportunity to cross-examine respondent No,1 and her witnesses nor lead his own evidence. Thus the impugned judgment has been passed in violation of the principle of natural justice. 7. To appreciate the submission of the counsel I called for the R Y P of the suit and have gone through the case diary. It appears that when the suit was at the stage of framing issues it was transferred to the 9th Family Court by the District Judge on transfer application, perhaps, moved by the petitioner. 8. The submission of the learned counsel that the petitioner was misinformed and ill-advised by his counsel M/s. Amir Ahmed Khan and Syed Mahmood All Shah about the stage and position of the case stands falsified by the facts on record. It appears that the petitioner has all along been attending the Court and was aware about the stage and dates of hearing. On 4-12-1988 the petitioner was himself present and filed application for adjournment. On 12-12-1988 the case was fixed for pre-trial and the petitioner was himself present. The pre-trial proceedings having failed, the issues were settled on the same date and the case was adjourned to 3-1-1989. On 3-1-1989 the respondent and her two witnesses were examined but they we not cross-examined by the petitioner though he was present. On 12-1-1989 when the 3rd witness of the respondent was examined the petitioner was also present. The evidence of respondent No,1 was closed on 16-1-1989 and the case was adjourned to 21-1-1989 for petitioner's evidence. The petitioner and his counsel attended the Court in the morning and refuested the case to be taken up at 12.00 noon. At about 12.20 p.m. When the case was called the petitioner and his 'counsel remained absent deliberately. The petitioner's side was then closed and the case was adjourned to 23-1-1989 for post-trial proceedings and final arguments. On 23-1-1989 the petitioner was present in person and filed an application under section 151, C.P.C. For recalling of the respondent No,1 and her witnesses and
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permit the petitioner to cross-examine them and also reopening his side. Notice on the said application was given to the other side. On 28-1-1989 the Advocate for respondent No,1 filed objections and the case was fixed for 4-2-1989. On that day petitioner was present in person and filed an application for adjournment as he wanted to bring his Advocate. He was granted upto 10 o'clock, and ultimately the request for adjournment was turned down and his application under section 151, C.P.C. For recalling the respondent and her witnesses and allowing the petitioner to cross-examine them was rejected as no sufficient cause was shown for the same. I think that no exception can be taken to the order passed by the learned Family Judge on these two applications which, in the circumstances, cannot be said to be arbitrary or fanciful. Almost on all the dates, the petitioner was present in person and has been attending the Court and was pursuing the proceedings. If, for some reason, his Advocates did not attend the Court, it was a matter between him and his counsel and not the Court. 9. It is also noticeable that on 14-2-1989, one day before the date fixed for final arguments, the petitioner's counsel superseding the previous ones, filed an application under section 12(2), C.P. C. Read with section 41 of the Legal Practitioners and Bar Councils Act, 1973, which was heard on 15-2- 1989 and dismissed. It is also noticeable that the petitioner also filed a revision application before the learned District Judge against the order, dated 15-2-1988 passed on his application under section 12(2), C.P.C. Which was also dismissed on 25-2-1989. Another application moved by the petitioner's counsel for stay of proceedings was also dismissed. Learned counsel for the petitioner, M/s. Ghulam Ghous and Dr. Hameed Ahmed Ayaz, then, stated at the bar that they would remain present in. Court but will not submit their arguments. The learned Family Judge seems to have directed the counsel to make the statement in writing which they submitted accordingly. Hence, the arguments as submitted on behalf of the respondent No,1 were heard and the judgment was reserved. The suit was decreed on 22-2-1989. 10. The submission of the counsel for the petitioner that the two counsel namely, M/s. Amir Ahmed Khan and Syed Mahmood. All Shah earlier engaged by the petitioner appearing in the suit did not perform their professional duties honestly, cannot be inquired into by this Court under Article 199 of the Constitution. The submission of the counsel that the act or omission of the counsel for the petitioner was fraudulent and 'the adverse orders were obtained by making misrepresentation or practising fraud is entirely misconceived. If the petitioner has any complaint against his Advocates he may move the Bar Council against the said counsel for refund of the fees paid to them and also for awarding damages to him. By no stretch of imagination it can be said that respondent No,1 obtained decree by playing fraud on Court. The first two contentions are, therefore, without any substance. 11. As regards the third contention, the petitioner in the instant case has orally pronounced divorce to respondent No,1 on 18-3-1988 without giving any notice as provided in section 7 of the Muslim Family Laws Ordinance. The respondent' No,1, however, herself filed some application before the Councillor, Union Committee No,44, Karachi. The petitioner seems to have not denied the pronouncement of divorce before the Councillor. He, however, appears to have pleaded before him that the, divorce was pronounced by him under rage or anger. The Councillor issued a certificate to that effect. The petitioner in the written statement has, however, denied the pronouncement of divorce to respondent No,1. Respondent No,1 examined herself on the point of divorce having been pronounced to her thrice on 18-3-1988. The two witnesses produced by her have supported her on the point of divorce having been pronounced thrice to the respondent. The third witness has supported the fact of admitting the divorce by the petitioner before the Councillor. The learned Family Judge, in view of the evidence led by respondent No,1 gave a finding of fact that the divorce was pronounced thrice orally to respondent No,1 on 18-3-1988 and thus passed a decree of dissolution of marriage of respondent No,1 with the petitioner. The petitioner neither cross-
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examined the respondent or her witnesses nor produced any evidence in rebuttal. Much less to say that he did not enter the witness-box even to deny the, statement made by the respondent and her witnesses or dispute the certified copy of the certificate issued by the Councillor which was produced alongwith the plaint and exhibited while recording evidence of the respondent in the case., In the words of the learned family Judge:-- "In the presence of overwhelming evidence on record, and admission of defendant before the Councillor that'he divorced plaintiff in rage, it is held defendant verbally gave divorce thrice to plaintiff on 18-3-1988, as such in spite of divorce not been given in writing plaintiff was divorced on 18-3-88. Issue No,1 answered in affirmative. Since defendant divorced plaintiff verbally on 18-3-88, the marriage between plaintiff and defendant does not exist." 12. The contention that no notice of the pronouncement of Talaq was given by the petitioner to the Chairman, and as such no Talaq became effective has no force. It has already been held in the case of Qamar Raza v. Tahira. Begum (PLD 1988 Kar. 169) that Talaq becomes operative soon after it is pronounced and no notice to be served 'on the Chair/Ran; Union Council is' necessary, for the divorce to become effective on the expiry' of 90 days from the date of the delivery of such notice which is in conflict with Explanation to Article 227(1) of the Constitution and is, -therefore, void. 13. For examining the contention of the counsel, in the alternative, that non-delivery of notice by the petitioner amounts to revocation of divorce by the petitioner, it seems necessary to first reproduce the relevant section 7 of the Muslim Family Laws Ordinance, 1961, which reads 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 a 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 tc five thousand rupees, or with both. (3) Save as provided in subsection (5)- 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 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 later, ends. (6) Nothing shall debar a wife whose marriage has been terminated "by Talaq effective under this section from re-marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective." ' Before adverting to the above provision of law, it seems proper to deal with the Muslim Family Laws Ordinance in its historical perspective. I am conscious that it would not be possible in- the judgment to deal exhaustively with the historical background and original purpose, if indeed one- may be found, of the promulgation of Muslim Family Laws Ordinance. However, some aspects, in the historical perspective, may be mentioned briefly as Mr. Justice Holmes of the United States Surpeme Court observed "a page of history is worth of a volume of logic" New York Trust Co. v. Eisner 256 U.S. 345, 349 (192). 14. It, therefore, seems necessary to first recall the historical background of the promulgation of the Muslim Family Laws Ordinance, 1961. For this I would like to refer to a passage from the book "Women in Muslim Family Law" by John Esposito, New York, 1982, at page 83. The learned author writes:--
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"On August - 4, 1955, eight years after Pakistan's founding, the Commission on Marriage and Family Laws was established to review Muslim Family Law to determine. Whether changes were necessary. The Commission was composed of three men, three women and one religious scholar (to represent the Ulama). The report (in June, 1956), represented the recommendations of the six laymen majority. However, shortly thereafter in August 1956, Maulana Ihtishamul Haq (Thanvi) a religious scholar (alim, pl. Ulama) and a traditionalist published a vigorous dissenting report taking issue with virtually every major recommendation of his colleagues on the Commission. There then ensued an extended debate between the modernists and traditionalists." 15. It appears that as a refuse of countrywide protest of the Ulama, the said report remained lying dormant with the Government for several years. It, however, received in impetus during the military rule of Field-Marshal Ayub Khan who could impose it on the Muslims of Pakistan, under the cover of Martial Law. The strong support came from All Pakistan Women's Association (APWA), headed by Begum Ra'na Liaquat Ali Khan, wife of the first Prime Minister, Shaheed-eMillat, Liaquat Ali Khan. So, Field-Mashal Ayub Khan, as Chief Martial Law Administrator and self-appointed President of Pakistan promulgated the Muslim Family Laws Ordinance on 2nd March, 1961 which came into force on 15th July, 1961. Notwithstanding the rigours of the Martial Law, there was a countrywide resentment, particularly by the Ulama community over the promulgation of the said Ordinance, as being against the Injunctions of Islam. Later on, the said Ordinance on the enforcement of one- man made Constitution of 1962, was given Constitutional protection, keeping it outside the ambit of the authority of the Courts of Pakistan from being challenged as violative of Fundamental Rights and repugnant to Islam (See Gardezi's case, PLD 1963 SC 51 at page 74). Although the protection to this Ordinance was first afforded in the Constitution of 1962 but this protection continued in the subsequent. Constitutions of 1972 and 1973 and still continues to be so after the revival of the Pakistan Constitution of 1973 by President's Order No,14 of 1985, perhaps, because of the secular influences working both in and outside the relevant quarters. 16. The protection to Family Laws Ordinance of 1961 under Article 8(3) of the Constitution, 1973 amounts to suspension of the Fundamental Right guaranteed to the people of Pakistan. By Article 20 of the Constitution, 1973. 17. In fact, by protecting the Muslim Family Laws Ordinance, Article 20 of the Constitution has become, to that extent, nugatory. This amounts to tinkering of Article 20. It means that an ordinary statute has been allowed to run counter to Article 20 of the Constitution, for being included in the First Schedule, so as to claim immunity from the attack of contravening the fundamental right to profess and practise one's religion according to his own faith as guaranteed under Article 20. But, to my mind, after insertion of Article 2-A in the Constitution by President's Order No,14 on 2nd March, 1985 and the Objectives Resolution being made substantive part of the Constitution allowed by the Eighth Constitutional Amendment by the Parliament the position has undergone a change. The Article 2-A and the Objectives Resolution as its Annex. Are reproduced below:-- "2-A. The Objectives Resolution to form part of substantive Provisions. --The principles and provisions set out in the Objectives Resolution reproduced in the Annex. Are hereby made substantive part of the Constitution and shall have effect accordingly." "The Objectives Resolution: ' In the name of Allah, the Beneficent, the Merciful. ' Whereas sovereignty over the entire Universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust; ' This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan.
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' Wherein the State shall exercise its powers and authority through the chosen representatives of the people; ' Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; ' Wherein the Muslims shall 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 the Sunnah; ' Wherein adequate provision shall be made for the minorities to profess and practise their religions and develop their cultures; ' Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their power and authority as may be prescribed; ' Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; ' Wherein adequate provisions shall be made to safeguard the legitimate interests of ,minorities and backward and depressed classes; ' Wherein the independence of the Judiciary shall be fully secured; ' Wherein the intergrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and sir shall be safeguarded; ' So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity." 18. It, therefore, seems necessary to see whether the said Ordinance comes into conflict with the principles and provisions of the said Objectives Resolution. In the face of Article 2-A, subsequently added, it would not, perhaps, be possible to extend recognition to the said protection in so far it derogates or comes into conflict with the principles and provisions underlying the Objectives Resolution, which would ultimately affect the religio-social guarantee given to the people of Pakistan which the Constitution so solemnly proclaims, envisages and secures. The Muslim Family Laws Ordinance, when examined from the point of view of the infringement of fundamanetal, rights, in my humble view, comes into conflict with Article 20 of the Constitution inasmuch as it prevents Muslims to practise their religion according to their belief and faith. (See my Article "Constitution and the Freedom of Religion" PLD 1989 Journal 17). It also negatives the express provision as contained in Article 227 which, inter alia, provides that in the application of clause (1) as contained in Article 227, in so far it relates to the personal law of any Muslim sect, the expression "Qur'an and Sunnah" shall mean Qura'an and Sunnah as interpreted by that sect. In other words, the interpretation of the Qur'an and Sunnah will be recognised and applied in accordance with the belief of every Muslim sect. It is true that the right guaranteed under Article 20 is subject to law and morality, but these two expressions, law and morality, will now be subjected to the interpretation in the light of Explanation to Article 227 and Article 2-A; with the result that the said Ordinance, if found against law and morality, judged by Islamic standards it will amount to transgressing the limits and will not be saved merely because it comes within the expressions of law and morality simpliciter used in Article 20 or clause (6) of the Objectives Resolution as referred to in Article 2-A of the Constitution, as the law and morality should nevertheless be in conformity with the provisions of Article 2-A or, to be more precise, so far as the law and morality relate to Muslims, it would mean conformable to the law and morality as laid down in the Qur'an and Sunnah of the Holy Prophet. (See my Article "Law, Morality and Society PLD 1989 Journal 94).
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19. It is true, as pointed out earlier, that the Muslim Family Laws Ordinance is a protected piece of legislation; since its inception, by its inclusion in the First Schedule so as to save it from being challenged in a Court of law on the ground that it infringes fundamental right of a Muslim to profess and practise his religion. It cannot, therefore, be attacked on the basis of violation of fundamental right guaranteed under Article 20 of the Constitution. Let it be added that the very fact that the Muslim Family Laws Ordinance has been protected is sufficient to contend that the framer of the law was conscious in his mind that the same, being against the fundamental right as guaranteed in Article 20 of the Constitution, was liable to be challenged in a Court of law and the result being obvious, and, perhaps, for that reason, protection was afforded to that law from being so challenged since its every inception. Thus, the very inclusion of the Muslim Family Laws Ordinance in the First Schedule, which saved it from the operation of Fundamental Rights guaranteed under the Constitution, is enough to show that the Legislature was itself, or I must say, because there was no Legislature in those days, the sole framer of, the Constitution and of the said Ordinance, Field-Marshal Muhammad Ayub Khan was himself conscious of the fact that the said law was apparently opposed to, in the conflict and inconsistent with the fundamental right to profess and practise one's own religion. Not only that, no provision of…
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