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Petitioner: Sofia Ashfaq VS Respondent: Haseeb Ashfaq Bhatti and others
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title: Sofia Ashfaq vs Haseeb Ashfaq Bhatti and others Case No.: C.R.No.307/2017 Date of Judgment:2018-11-28 Reported As: 2018 IHC 141 Result: Petition Allowed
Judgment MIANGUL HASSAN AURANGZEB, J:- Through the instant civil revision petition, the petitioner , Sofia Ashfaq, impugns the judgment dated 27.07.2017, passed by the Court of the learned Additional District Judge, Islamabad, allowing respondents No.1 to 3's appeal against the order dated 17.05.2017, passed by the Court of the learned Civil Judge, Islamabad. Vide the said order dated 17.05.2017, the learned Civil Court allowed the petitioner 's application for the issuance of a succession certificate regarding the legacy of her deceased husband, Muhammad Ashfaq Bhatti ("Mr. Bhatti"), and dismissed the said respondents' objections to the inclusion of the petitioner 's name in the succession certificate. 2. The facts essential for the disposal of the instant petition are that on 27.07.19 97, the petitioner got married to one Shahzad Gul. The petitioner asserts that Shahzad Gul had pronounced oral divorce upon her on 14.04.2010. On 19.12.2012, Shahzad Gul is said to have obtained a stamp paper on which the divorce deed was scribed. On 07.01.2014, the petitioner applied to the Chairman, Arbitration Council, Islamabad, for the issuance of a certificate for the ef fectiveness of divorce. This certificate was issued on 17.04.2014. 3. On 26.01.2013, the petitioner married with Mr. Bhatti. Mr. Bhatti had been married earlier and had two sons, namely , Haseeb Ashfaq Bhatti (respondent No.1) and Hassan Ashfaq Bhatti (respondent No.4), and two daughters namely , Javeria Haroon (respondent No.2) and Maria (respondent No.3). Mr. Bhatti breathed his last on 03.02.2016. His first wife had predeceased him. 4. In order that the petitioner could get her share in her late husband's estate, she, on 18.03.2016, applied to the Court of the learned Civil Judge, Islamabad, for the issuance of a succession certificate under section 372 of the Succession Act, 1925. On 20.09.2016, respondents No.1 to 3 filed objections to the petitioner's said application. The essential ground on which the said respondents objected to the petitioner's application was that her marriage with their late father on 26.01.2013 was not valid on the ground that her earlier marriage with Shahzad Gul had not come to an end until 17.04.2014 when the certificate of effectiveness of the divorce had been issued. It was
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asserted that in terms of Section 7 (3) of the Muslim Family Laws Ordinance, 1961 ("M.F.L.O."), a divorce does not become effective until the expiry of ninety days from the day on which notice of divorce is delivered to the Chairman, Union Council. Furthermore, respondents No.1 to 3 had pleaded that although the divorce deed produced by the petitioner showed that Shahzad Gul had pronounced divorce on 14.04.2010 but the stamp paper on which the divorce deed was executed was issued on 19.12.2012. This, according to the said respondents, showed that the divorce deed was a forgery. The petitioner's right to inherit from the legacy of the late Mr. Bhatti was questioned essentially on the ground that she had contracted the second marriage one year and three months before her first marriage ended with the issuance of the certificate of effectiveness of divorce. 5. The petitioner appeared before the learne d Civil Court as AW- 1 and recorded her evidence. One of Mr. Bhatti' s sons, respondent No.4 appeared as AW-2 and gave evidence in the petitioner 's support. Shahzad Gul gave evidence as AW-3 and Muhammad Asif as AW-4. Respondent No.2 appeared as RW-1 and had her evidence recorded. 6. Vide order dated 17.05.2017, the learned Civil Court accepted the petitioner 's application for the issuance of succession certificate. It was ordered that a succession certificate be issued in favour of the petitioner and respondents No.1 to 4 subject to the filing of local surety bonds. The persons in whose favour the said certificate was issued were held to be entitled to withdraw their respective shares from the legacy of the late Mr . Bhatti. 7. The said order dated 17.05.2017 was assailed by respondents No.1 to 3 in an appeal before the Court of the learned Additional District Judge, Islamabad. Vide judgment dated 27.07.2017, the said appeal was allowed and the order dated 17.05.2017, passed by the learned Civil Court was set-aside. In the said appellate judgment, it was observed that since the petitioner's disputed status as Mr. Bhatti's widow could not be adjudicated upon in the summary proceedings for the issuance of a succession certificate, the learned Civil Court should have directed that the petitioner's share be kept in reserve until she got a decree from a Court of plenary jurisdiction about her status as Mr. Bhatti's widow. Furthermore, it was held that if she was unable to get a decree in her favour and the suit was decided against her, the share kept in reserve would be distributed amongst Mr. Bhatti's other legal heirs. In holding so, the learned Appellate Court placed reliance on the law laid down in the case of "Mst. Jamila Akhtar Vs. Public at Large" (2002 SCMR 1544). The said judgment dated 27.07.2017 has been assailed by the petitioner in the instant civil revision petition. 8. It may be mentioned that on 17.03.2016, the petitioner filed a suit for "declaration (legal heirship certificate) and mandatory injunction" against the respondents before the learned Civil Court, Islamabad. In the said suit, the petitioner had prayed for inter-alia a decree for declaration to the effect that she along with respondents No.1 to 4 are Mr. Bhatti' s legal heirs. Respondents No.1 to 3 contested the said suit. On 12.11.2016, the learned Civil Court framed the issues. The petitioner did not produce evidence despite having been granted several opportunities by the learned Civil Court. Vide order and decree dated 27.02.2018, the learned Civil Court dismissed the said suit after closing the petitioner 's right to produce evidence under Order XVII, Rule 3 of the Code of Civil Procedure, 1908 ("C.P .C."). The petitioner 's appeal against the said order and decree has been allowed by the Court of the learned District Judge, Islamabad. Consequently , the petitioner 's suit is presently pending before the learned Civil Court. 9. It may also be mentioned that on 20.01.2018, respondents No.1 to 3 filed a suit for "declaration, partition through separate possession and permanent injunction" against the petitioner and respondent No.4 before the Court of the learned Civil Court, Islamabad. In the said suit, respondents No.1 to 3 (i.e., the plaintif fs therein) prayed for inter- alia a declaration to the effect that respondents No.1 to 3 and respondent No.4 are the only legal heirs of Mr. Bhatti; and that the petitioner is not his legal heir . This suit is still pending adjudication. CONTENTIONS OF THE LEARNED COUNSEL FOR THE PETITIONER:- 10. Mr. Sher Afzal Khan Marwat, learned counsel for the petitioner, after narrating the facts leading to the filing of the instant revision petition, submitted that the orders/judgments passed by the learned Courts below were at variance; that the petitioner had been divorced by her former husband in the year 2010; that the petitioner's former husband had given evidence and had confirmed that he had divorced the petitioner in the year 2010; that during the subsistence of the petitioner's marriage with Mr. Bhatti, no question was raised as to the validity of the divorce
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pronounced by her former husband; that the reliance placed by the learned Appellate Court on the case of "Mst. Jamila Akhtar Vs. Public at Large" (supra), is misplaced since the said case related to a forged Nikkahnama, whereas in the instant case, the petitioner's Nikkah with Mr. Bhatti is an acknowledged fact; that the civil suit instituted by the petitioner was with respect to the distribution of immovable properties left by the petitioner's late husband, Mr. Bhatti; and that the order dated 17.05.2017, passed by the learned Civil Court is strictly in accordance with the law and the evidence on the record, whereas the judgment dated 27.07.2017, passed by the learned Appellate Court suffers from non-application of judicious mind and based on non-reading and misreading of the evidence on the record. Learned counsel for the petitioner prayed for the revision petition to be allowed by setting-aside the impugned appellate judgment dated 27.07.2017 and by restoring the original order dated 17.05.2017. CONTENTIONS OF THE LEARNED COUNSEL FOR RESPONDENTS NO.1 TO 3:- 11. Barrister Talha Ilyas Sheikh, learned counsel for respondents No.1 to 3, submitted that the petitioner's services as a housemaid were engaged by their father in the year 2012; that over the time, Mr. Bhatti became increasingly dependent on the petitioner who had represented herself to be a divorcee; that on 26.01.2013, Mr. Bhatti and the petitioner got married; that at the time of the marriage, the petitioner was 34 whereas Mr. Bhatti was 61 years of age; that respondents No.1 to 3 had accepted the marriage for the sake of their father's happiness; that in December 2015, Mr. Bhatti came to know that the petitioner's first marriage was still subsisting; that the petitioner's CNIC dated 09.06.2013 shows her husband's name as "Shahzad Gul"; that the petitioner was a married woman when she contracted marriage with Mr. Bhatti; that although the talaqnama produced by the petitioner shows that her former husband pronounced talaq on 14.04.2010, but the stamp paper on which the said talaqnama was executed was issued on 19.12.2012; that this clearly shows that the talaqnama is a forgery and, therefore, has no sanctity in the eyes of law; that the said talaqnama was prepared one month and seven days prior to the petitioner's marriage with Mr. Bhatti; that the petitioner's marriage with Mr. Bhatti cannot be termed as valid; that on 07.01.2014, the petitioner applied to the Chairman, Arbitration Council, for the certificate of effectiveness of divorce; that the said certificate was issued on 17.04.2014 (i.e., one year and three months after the petitioner's marriage with Mr. Bhatti); that in terms of section 7 of M.F.L.O., the petitioner's marriage with Shahzad Gul had not ended when she married Mr. Bhatti; that it was mandatory for the petitioner to have obtained a certificate of effectiveness of divorce prior to marrying Mr. Bhatti; that the petitioner is liable to be punished for violating section 7 of M.F.L.O.; that the learned Appellate Court has not committed any jurisdictional irregularity in allowing respondents No.1 to 3's appeal; and that in the event, the petitioner is able to prove that her marriage with Mr. Bhatti was not irregular or invalid, her secured share would be given to her. Learned counsel for respondents No.1 to 3 prayed for the revision petition to be dismissed. CONTENTIONS OF THE LEARNED COUNSEL FOR RESPONDENT NO.4:- 12. Mr. Shajjar Abbas Hamdani, learned counsel for respondent No.4, submitted that respondent No.4 would have no objection if the instant revision petition was allowed and the impugned appellate judgment was set-aside. He further submitted that the petitioner had devoted herself to Mr. Bhatti's care; the petitioner's marriage with Mr. Bhatti did not suffer from any invalidity or irregularity; and that the petitioner's former husband had divorced her prior to her marriage with Mr. Bhatti; and that respondent No.4's siblings were trying to deprive the petitioner of her due share of inheritance in Mr. Bhatti's estate. Learned counsel for respondent No.4 prayed for the instant revision petition to be allowed. SUBMISSIONS OF THE LEARNED AMICUS CURIAE:- 13. Ms. Hadiya Aziz, the learned Amicus Curiae submitted that the three essential ingredients of talaq were; (i) pronouncement of talaq , (ii) notice of the talaq to the wife, and (iii) notice of the talaq to the Chairman, Arbitration Council; that there is no provision in the M.F.L.O. clearly setting out the pre-requisites of a valid Nikkah ; that although Section 5 of M.F.L.O. provides for the registration of the Nikkah but does not specify the manner in which it is to be performed; that if a marriage is declared to be void, penal consequences will ensue; that marriage during the iddat period was irregular but not void; that in the instant case, the irregularity in the petitioner 's marriage with Mr. Bhatti stood cured, because the certificate of effectiveness of divorce was issued after the petitioner 's Nikkah
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with Mr. Bhatti but before his demise; that by the time, Mr. Bhatti' s succession opened, the petitioner 's divorce with Shahzad Gul had come through; that proceedings for the issuance of a succession certificate are summary in nature, and in such proceedings, questions of title cannot be determined; that the learned Civil Court correctly called upon the petitioner to furnish surety bonds; that strict compliance with the requirements of Section 7(3) of M.F.L.O. could be dispensed with in the instant case since both the petitioner and Shahzad Gul are in unison that the divorce took place in the year 2010; that the learned Civil Court had passed a just order by allowing the petition for the grant of a succession certificate subject to furnishing of surety bonds; and that the petitioner could not be deprived of her inheritance rights until respondents No.1 to 3's suit for declaration, etc., is not decreed. In support of her submission, the learned amicus curiae referred to a catena of case law . 14. I have heard the contentions of the learned counsel for the contesting parties and learned amicus curiae and have perused the record with their able assistance. 15. The facts leading to the filing of the instant writ petition are set out in sufficient detail in paragraphs 2 to 9 above and need not be recapitulated. 16. The vital question that needs to be determined in these proceedings is wheth er the petitioner 's marriage with Mr. Bhatti on 26.01.2013 was invalid given the fact that although the petitioner 's former husband had pronounced talaq on her on 14.04.2010, the stamp paper on which the talaqnama dated 14.04.2010 was executed was issued on 19.12.2012, and the certificate of effectiveness of divorce was issued by the Chairman, Arbitration Council on 17.04.2014. 17. Section 7(1) of the M.F.L.O. provides that 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 of the Union Council a notice in writing of him having done so, and shall supply a copy thereof to the wife. Section 7(3) of the M.F.L.O. provides that unless a talaq is revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under Section 7(1) is delivered to the Chairman of the Union Council. 18. Even if it is assumed that Shahzad Gul pronounced oral talaq on the petitioner on 14.04.2010, it is an admitted position that he had not given any notice to the Chairman of the Union Council as required by Section 7(1) of the M.F.L.O. It was the petitioner who on 07.01.2014, applied to the Chairman, Arbitration Council, Islamabad, to issue a certificate of effectiveness of divorce. This certificate was issued by the Chairman, Arbitration Council on 17.04.2014. Since the petitioner and Mr. Bhatti had got married on 26.01.2013 (i.e., prior to the issuance of the certificate of effectiveness of divorce) it would be safe to hold that said marriage had taken place prior to the divorce having become effective in terms of strict and literal interpretation of Section 7(3) of the M.F.L.O. As mentioned above, the question that needs to be determined that whether the petitioner's marriage with Mr. Bhatti would be rendered void on account of the said lapse. 19. In the order dated 17.05.2017, the learned Civil Court referred to the case of Muhammad Hanif Vs. Mukarram Khan (PLD 1996 Lahore 58), wherein reference was made to judgments holding that since notice of a divorce to the Chairman, Local Council is not mandatory under the injunctions of Islam, the failure to send such a notice to the Chairman, Local Council, does not make the divorce ineffective in Shariah. Furthermore, it was held that a second marriage of such a divorced women to another person after the expiry of the iddat period is not invalid. On the basis of the law laid down in the said case, the learned Civil Court held that the petitioner's marriage with Mr. Bhatti prior to the issuance of the certificate of effectiveness of divorce was valid. Additionally, it was held that even if it was conceded that the petitioner's marriage with Shahzad Gul was dissolved with effect from the date of the execution of the divorce deed, even then the petitioner's second marriage with Mr. Bhatti could not be considered as void. 20. The learned Appellate Court differed with the findings of the learned Civil Court. The view taken by the learned Appellate Court was that since the petitioner 's status as Mr. Bhatti' s wife was a disputed question of fact which cannot be resolved in summary proceedings for the issuance of a succession certificate, the learned Trial Court should have directed that the petitioner's share in Mr. Bhatti's legacy be kept in reserve in the Court account until she gets a decree from a Civil Court regarding her status as Mr. Bhatti's widow. Furthermore, it was observed by the learned Appellate Court that after the petitioner is successful in getting a decree in her favour, she would be entitled to receive her share from the learned Civil Court, and in the event, she is not able to get a decree in her
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favour, the said share would be distributed amongst Mr. Bhatti's remaining legal heirs. In holding so, the learned Appellate Court placed reliance on the judgment of Hon'ble Supreme Court in the case of Mst. Jameela Akhtar Vs. Public at large (2002 SCMR 1544). 21. The instant case is not the first one in which a woman had contracted a second marriage prior to the issuance of the certificate of effectiveness of divorce with respect to her first marriage. The facts in the case of Allah Dad Vs. Mukhtar (1992 SCMR 1273) were that Mst. Rashida Akhtar was initially divorced orally by her husband and later through a divorce deed dated 17.05.1981. Mst. Rashida Akhtar took the plea that she contracted a second marriage with Mukhtar after she had been divorced by her first husband. This marriage had taken place prior to the issuance of a notice to the Chairman, Arbitration Council, or the issuance of a certificate for effectiveness of divorce. The Hon'ble Shariat Appellate Bench of the Supreme Court of Pakistan held that Mst. Rashida Akhtar's second marriage was not invalid. In paragraphs-19 and 20 of the said report, it was held as follows:- "19. Therefore, even if it is assumed that section 7 of the Family Laws Ordinance is a good law, the same cannot affect the validity of a marriage contracted according to Shariah at least to the extent of the criminal liability envisaged in the Ordinance. 20. It is now evident that a notice of Talaq to the Chairman is not mandatory under the Injunctions of Islam and any divorce pronounced or written by a husband cannot be ineffective or invalid in Shariah merely because its notice has not been given to the Chairman, there fore, if a woman after obtaining a divorce from her husband and after the necessary period of 'Iddat' contracts a marriage with a third person, their marriage cannot be held as invalid marriage, at least for the purpose of the Ordinance. In the instant case, the respondents have contracted Nikah after the petitioner had divorced Mst. Rashida Akhtar (respondent No.2), so even though the petitioner had not given a notice to the Chairman, the divorce became effective in Shariah and the marriage contracted thereafter is a valid marriage, especially for the purpose of the Ordinance and the cohabitation of the respondents cannot be held as 'Zina'." 22. Additionally , in the case of Mst. Zahida Shaheen Vs. The State (1994 SCMR 2098 ), it was observed that it had been generally found that people do not send a notice of talaq to the Chairman, Arbitration Council, as required under the M.F.L.O. Furthermore, it was held that failure to send a notice of talaq to the Chairman, Arbitration Council, does not render the divorce inef fective in Shariah . 23. Now the dicta in the case of Allah Dad Vs. Mukhtar (supra) and Mst. Zahida Shaheen Vs. The State (supra) came to be considered by the Hon'ble Supreme Court in the case of Kaneez Fatima Vs. Wali Muhammad (PLD 1993 S.C. 901), wherein it was observed that in the fields not occupied by statutory dispensation, principles of Islamic common law or principles in conformity with injunctions of Islam can be pressed into service. Furthermore, it was held that Courts were not vested with the jurisdiction to declare a law void on the touchstone of Article 2-A as distinguished from Article 8 of the Constitution. 24. Article 8(2) of the Constitution provides that the State shall not make any law which takes away or abridges the rights conferred by Chapter-I of the Constitution and any law made in contravention of the said clause shall, to the extent of such contravention, would be void. Article 8(3)(b) of the Constitution provides that the provisions of Article 8 shall not apply to laws specified in the First Schedule to the Constitution. The M.F.L.O. is one of the laws which finds mention in Part-II of the First Schedu le to the Constitution. Accordingly , in the case of Kaneez Fatima Vs. Wali Muhammad (supra ), it was held that "under Article 8(3)(b) the provisions of Article 8 will not apply to the Muslim Family Laws Ordinance, 1961 and cann ot be declared void in so far as it is inconsistent with the fundamental rights." It is pertinent to bear in mind that the dicta in the cases of Allah Dad Vs. Mukhtar (supra ) and Zahida Shaheen Vs The State (supra ) have to be understood in the light to subsequent judgment in the case of Kaneez Fatima Vs. Wali Muhammad (supra), wherein it has been unambiguously held that the M.F.L.O. was an existing law which had not been declared by the Federal Shariat Court or the Shariat Appellate Bench of the Supreme Court to be in conflict with the injunctions of Islam. It was also pointed out that the judgment in the case of Mirza Qamar Raza Vs. Mst. Tahira Begum (PLD 1988 Karachi 169), declaring Section 7 of M.F.L.O. to be void on account of being against the injunctions of Islam, had been set-aside by the Hon'ble Supreme Court. After a read of the judgment in Kaneez
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Fatima's case (supra), it is safe to conclude that Section 7 of the M.F.L.O. is very much an existing law, and is to be interpreted in the light of the law laid down by the Hon'ble Supreme Court in the said case. 25. The petitioner's first husband, Shahzad Gul, gave evidence before the learned Civil Court as AW-3. In his evidence, Shahzad Gul had deposed that he had divorced the petitioner on 14.04.2010, and that the divorce deed was prepared on 19.12.2012. The petitioner's testimony before the learned Civil Court was consistent with that of Shahzad Gul's. Now if 14.04.2010 is taken to be date of the divorce, the iddat period had clearly expired prior to the petitioner's marriage with Mr. Bhatti. This Court cannot ignore the consistent evidence given by Shahzad Gul as AW-3 and the petitioner as AW-1 that they had got divorced on 14.04.2010. The petitioner's marriage with Mr. Bhatti was clearly after the expiry of the iddat period if the same is to be counted from 14.04.2010. In the case of Kaneez Fatima Vs. Wali Muhammad (supra), it was held as follows:- "In a case where with the consent of both the parties divorce effected and confirmed in writing under their undisputed signatures, Section 7 should not be strictly construed particularly in cases where penal provision of Section 7(2) is to be enforced because in such cases the parties do not willfully commit breach and bonafide believe that they had been divorced with the consent of each other and sending of notice to the Chairman, Union Council, is a mere formality. The notice can be sent at any time thereafter to comply with the provisions of Section 7." 26. Now in allowing respondents No.1 to 3's appeal, the learned Appellate Court placed reliance on the law laid down in the case of Mst. Jameela Akhtar Vs. Public at Large (2002 SCMR 1544 ). In the said case, the deceased's sister had filed a petition for the issuance of a succession certificate regarding the amount lying in the deceased's bank accounts. In the said petition, the deceased's two widows namely, Mst. Jameela Akhtar and Mst. Umat-ul- Hameed, were also impleaded as parties. Mst. Jameela Akhtar objected to…
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