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Petitioner: Syed ASAD RAZA NAQVI VS Respondent: Mst. SAIMA FATIMA and another
Court Name: Sindh High Court Judge(s): Nisar Muhammad Shaikh Title: Syed ASAD RAZA NAQVI vs Mst. SAIMA FATIMA and another Case No.: Constitutional Petition No,S-847 of 2012 Date of Judgment:2012-12-17 Reported As: 2014 MLD 254 Result: Order accordingly
JUDGMENT
JUDGMENT ' NISAR MUHAMMAD SHAIKH, J.---Relevant facts of the case are that petitioner Syed Asad Raza Naqvi as well as respondent No,1 Mst. Saima Fatima, belong to Shia Asna Ashri Sect. They married on 27-7-2005 at Karachi and there was no issue out of this wedlock. On account of some differences, their relations remained strained, therefore, they started living separately from each other w,e,f, 22-10-2006. Besides these admitted facts, according to the petitioner, he subsequently decided to divorce respondent No,1, therefore, he approached Moulana Yakoob Ali Abid, who after fulfillment of all requirements in accordance with the 'Fiqah-e-Jafria, issued Certificate on 9-11- 2010 in respect of 'Talaq' and thereafter the petitioner, in presence of two witnesses, executed Divorce Deed, dated 10-11-2010, which was attested by Justice of Peace and on the same day, i,e, 10-11-2010, the petitioner forwarded copy of such divorce certificate and divorce deed to the respondents. The petitioner further stated in his petition that respondent No,1 with mala fide intention filed Family Suit No,1074 of 2010 on 11-11-2010 before the Family Judge, Karachi Central, for maintenance, recovery of the amount of gold ornaments and medical expenses. She also moved an application to the police and then to learned Sessions Judge for registration of F.I.R. Against the petitioner and said Moulana Yakoob Ali Abid in respect of the divorce certificate and divorce deed, but without success. Thereafter, her father filed such Private Complaint No,3 of 2011 (for the offences under sections 419, 420, 468, 471, 506/34, P.P.C.) before the Judicial Magistrate, Karachi Central, which is pending adjudication. Petitioner also stated that said Moulana Yakoob Ali Abid also registered a case (F.I.R. No,81 of 2011, under sections 504 and 506(b)/34, P.P.C.) against the father and brother of respondent No,1 alleging that they forcibly obtained a Certificate (on 30-11-2010) from him to the effect that the said certificate of divorce dated 9-11-2010 was not made/issued by
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him: Such case is also pending adjudication before Judicial Magistrate. Petitioner further stated that he had given necessary intimation about the divorce to respondent No,1 and also served the respondent No,2 (Chairman UC No,8, Gulberg Town) with such notice under section 7(1) of Muslim Family Laws Ordinance, 1961, and after expiry of 90 days he also approached the respondent No,2 for issuance of certificate of Talaq, but he did not issue the same. He allegedly, did not constitute Arbitration Council for reconciliation and thus failed to perform his obligatory duty and is also not issuing the certificate for confirmation of Talaq. The petitioner has, therefore, filed this Constitutional Petition on 24-7-2012 with the following prayers: (a) To declare the respondent No,2 is/was duty bound to constitute Arbitration Council after receipt of the notice of the petitioner under section 7(1) of the Muslim Family Laws Ordinance, along with Divorce Certificate and as well as Divorce Deed dated 10-11-2010 executed by the petitioner against the respondent No,1. (b) Declare the respondent No,2 failed to perform its legal obligatory duty, thus the respondent No,2 is bound to issue certificate in respect of Talaq which was executed by petitioner through Divorce Deed dated 10-11-2010. (c) Direct the respondent No,2 to issue a certificate for confirmation of Talaq to the petitioner in response to the notice dated 10-11-2010 under section 7 of the Muslim Family Laws Ordinance 1961. (d) Any other relief or relieves which this honourable Court may deem fit and proper. 2. On the other hand, respondent No,1, Mst. Saima Fatima, in her counter-affidavit stated that after receipt of alleged Talaqnama, dated 9-11-2010 and Divorce Deed dated 10-11-2010, her father approached Moulana Yakoob Ali Abid, who disclosed that he has neither written nor signed the Talaqnama, dated 9-11-2010, as he was not available in Karachi at that time. He then also disclosed that Rahab Ali, one of the witnesses of alleged Talaqnama has prepared the same.' Thereafter, Moulana Yakoob Ali Abid issued a Tasdeeqnama dated 30-11-2010 to the father of the respondent No,1 and a Notice dated 30-11-2010 addressed to the petitioner on his Letterhead with his own hand-writing confirming and declaring that Talaq has not taken place acid the alleged Talaqnama, dated 9-11-2010, is forged and he had neither signed nor issued it, but his Letterhead was stolen and misused by the petitioner, etc., therefore, requirement in accordance with Fiqah-e- Jafria has not been complied with. She further stated that she then moved an application to the concerned Police Station against the petitioner, but the petitioner in order to save his skin managed to force Moulana Yakoob Ali Abid to change his statement and admit that he had issued alleged Talaqnama, dated 9-10-2010, and that the Tasdeeqnama as well as notice, both dated 30- 11-2010, had been obtained from him forcibly. She also stated that her father then filed a Private Complaint No,3 of 2011 against the petitioner for having committed fraud and forgery and Moulana Yakoob Ali Abid for changing his stand on the influence of the petitioner. Such case is pending adjudication in the court of Judicial Magistrate. It is alleged by respondent No,1 that petitioner managed to lodge F.I.R. No,81 of 2011 through the said Moulana Yakoob Ali Abid against her brother alleging that he had forcibly obtained Tasdeeqnama, dated 30-11-2010, putting his forged signature and such case is also pending adjudication in the court of Judicial Magistrate. She further stated that she has also filed a suit for maintenance, etc. On 11-11-2011 and the petitioner on coming to know about it, and to avoid payment of maintenance, etc., sent alleged Talaqnama along with divorce deed on 16-11-2010 through courier service. Regarding reliefs claimed by the petitioner, the respondent No,1 also stated that it is yet to be proved and decided by the competent courts that the petitioner after fulfilling and complying with the requirements of Fiqah-e-Jafria obtained alleged Talaqnama, dated 9-11-2010, from a competent person or otherwise the Tasdeeqnama, dated 30-11-2010, is a genuine document which has voluntarily been issued by Moulana Yakoob Ali Abid declaring that no Talaq has taken place between the parties. She also states that if this petition is not dismissed with costs, then proceedings of the cases pending for
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determination of the question of genuineness of alleged Talaqnama dated 9-11-2010 so also of Tasdeeqnama dated 30-11-2010, shall be frustrated. 3. Whereas, the respondent No,2, i,e, Chairman/Secretary, Union Council No,8, Gulberg Town, Karachi, did not come forward to file his objections, etc., on the above petition though he was duly served with the notice. 4. It is contended by Mr. Moulvi Iqbal Haider, learned counsel for the petitioner that though the respondent No,2 was duly served on 11-11-2010 with the notice under section 7 of the Muslim Family Laws Ordinance, 1961 together with copy of the Certificate of Talaq dated 9-11-2010 as well as Divorce Deed dated 10-11-2010 and he was duty bound to constitute Arbitration Council for reconciliation and on its failure to issue a Certificate of Confirmation of Talaq but he failed to do so without any excuse, therefore, the petitioner seeks compliance of such requirement of law. He further contended that the petitioner has divorced the respondent No,1 after observing all necessary formalities and fulfilling the requirement under the Shia Law, therefore, respondent No,1 is no more wife of the petitioner as admittedly she had received the Divorce Certificate and Divorce Deed through TCS on 16-11-2010. In support of his contention, he also placed reliance on the cases reported as (1) 1998 MLD 85, (2) 2004 YLR 111, (3) PLD 2005 Karachi 358, (4) 2006 YLR 1753 and (5) 1992 SCMR 1273. 5. On the other hand, the contention of Mr. Muhammad Rafi, learned counsel for respondent No,1 is that the petitioner has since failed to pronounce valid Talaq in accordance with Shia Law and the Certificate of Divorce dated 9-11-2010 as appears from the very face of it, does not fulfil the requirements of the Shia Law therefore, such Talaq being invalid and ineffective in the eye of Shia Law could not be made valid and effective by the respondent No,2. In support of his contention, he has also placed reliance on the cases reported as (1) PLD 1963 SC 51, (2) 1984 CLC 1961, (3) PLD 1988 Karachi 169 and (4) PLD 1993 SC 901. 6. I have considered the submissions of learned counsel for the parties and also perused the relevant record as well as the case-law referred to by them respectively. In the case of Mst. Asmat Nigar v. Syed Ibrar Hussain Shah and 2 others (2004 YLR 111), the learned Division Bench of Peshawar High Court while dismissing the writ petition of the petitioner in limine, concluded in the following manner:- "6. The respondent No,1 had authorized Muhammad Askari D.W. 1, who had not only read "Khutba Talaq" in specific Arabic words in presence of two witnesses but had put his signature as its marginal witness on divorce deed Exh. P.A.3. At the time of pronouncement/recitement of "Khutba Talaq", the respondent No,1 was also present in addition to two witnesses and he had put his signature on the divorce deed Exh. P.A.3, therefore, the requirements of Shia Law were fully complied with. No other point was urged before us. The learned Additional District Judge has rightly appreciated this position and we have not been able to find out any illegality warranting interference in our Constitutional jurisdiction. Resultantly, the writ petition is dismissed in limine". ' It appears that in the above case, the pronouncement/recitement of 'Khutba Talaq', in specific Arabic words in presence of two witnesses, was proved though evidence adduced before the trial court which was also appreciated by appellate court, but in the case in hand, no such evidence has been adduced to prove as above. Moreover, Peshawar High Court also observed in the same case as follows: "2 The requirement of valid Talaq under Shia Law is that it shall have no effect unless it is pronounced strictly in accordance with Shia Law, in Arabic words in presence of two adult male witnesses and the wife but when the presence/attendance of the wife cannot be procured then the husband can pronounce the Talaq in specific Arabic words which is known as "Khutba Talaq", but in presence of two male witnesses and the same can be reduced into writing and forwarded to wife or it may be intimated to her otherwise."
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7. In the case of Mst. Saira Shaukat v. District Collector I.C.T., Islamabad and 2 others (2006 YLR 1753), a learned single Judge of Lahore High Court, in the matter of the parties belonging to Shia Sect, observed as under:-- "3 I have given some thought to the contention of the learned counsel. Now in our country the matter of divorce is governed by section 7 of Muslim Family Laws Ordinance, 1961. The conditions of valid divorce as prescribed in the said law are as follows:- (i) Pronouncement of valid divorce by husband upon wife in accordance with the principles of Sect to which the parties belong; (ii) A notice informing the factum of pronouncement of divorce to be sent to the Chairman, Arbitration Council with a copy to the wife; (iii) Upon fulfilment of aforenoted two conditions, divorce shall become effective, if not withdrawn by the husband earlier, upon expiry of 90 days from the date of receipt of the said notice in the office of Chairman or in case wife is pregnant upon termination of pregnancy whichever point of time is later. ' It has been settled by consensus expressed in several judgments pronounced by the superior judiciary of the country that Chairman has no jurisdiction to issue a certificate declaring as to whether a divorce has become effective .Or it remains ineffective. A valid divorce can take effect only upon the fulfilment of the conditions noted above. 4. This writ petition accordingly is disposed of with the observation that whenever and wherever in any Court if question arises as to whether or not respondent No,3 has divorced the petitioner validly, it will be subject to valid proof of several conditions as contained in section 7 of the Muslim Family Laws Ordinance, 1961 enumerated above, and notwithstanding any certificate of any nature issued by respondent No,2." ' The above has been relied by learned counsel for petitioner but the same also emphasizes the fulfilment of certain conditions including one at para 3(i) above, for a valid divorce, notwithstanding any certificate of any nature issued by the Chairman. 8. Whereas, in the case of Batool Tahir v. Province of Sindh, through Secretary, Local Government Sindh and 3 others (PLD 2005 Karachi 358), a learned Division Bench of this Court concluded the matter of the parties therein, with the following observations:-- 14. In the case of Mst. Fahmida Bibi v. Mukhtar Ahmad reported in PLD 1972 Lah. 694 it has been held that the Chairman, Arbitration Council could only record the fact as to whether the conciliation between the parties has succeeded or not. The Chairman/respondent No,2 in law has to record the result of the reconciliation and neither can validate the marriage nor can declare a Talaq ineffective in exercise of the powers under section 7 of the Ordinance. 15. We are fortified by the unreported judgment of this Court dated 20-9-1987 in Constitutional Petition No,(S) 90 of 1984 wherein this Court has endorsed the above view. We have further examined the judgment of this Court in the case of Mirza Qamar Raza v. Ms. Tahira Begum reported in PLD 1988 Kar. 169, which view has been affirmed/approved by the honourable Supreme Court of Pakistan in the case of Allah Dad v. Mukhtar reported in 1992 SCMR 1273, wherein their lordships have held that a Talaq would become effective even in the absence of a notice to the Chairman under section 7 of the Ordinance, 1961, so also that the Talaq cannot be declared ineffective in absence of a notice to the Chairman as contemplated by section 7 of Ordinance, which provision of law, their Lordships have held, was against the injunctions of Islam. 16. For the aforesaid reasons we hold that the petitioner cannot claim that non-issuance of notice under section 7(1) of the Ordinance to her either by the respondent No,2 or non-supply of the copy of the Talaqnama by the respondent No,4 would make Talaq ineffective and or would invalidate it for more than one reason as the petitioner was in knowledge that Talaq has been pronounced by the respondent No,4 besides the fact that the judgment of the honourable Supreme Court has
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clearly held that Talaq would become effective on expiry of 90 days from the date it was pronounced irrespective of the service of notice to the Chairman, Union Council and or the wife and non-service of notice to them would not make Talaq ineffective as has been contended by the learned counsel for the petitioner." 9. In the case of Farah Khan v. Tahir Hamid Khan, and others (1998 MLD 85), a learned single bench of Lahore, while dealing with the matter relating to the compliance of Section 7 of the Family Laws Ordinance, 1961, observed as follows:-- "8. Even if it is presumed that the Arbitration Council had no jurisdiction to entertain the notice of talaq given by respondent No,1 under the provisions of section 7 of the Muslim Family Laws Ordinance, 1961, the right of talaq vested with a husband under the Sharia has not been taken away from a Muslim irrespective of the country to which he belongs. In view thereof, despite the restrictions contained in the Muslim Family Laws Ordinance, 1961, the husband's right of talaq prevails as given to him under the Quranic Injunctions. In Allah Dad v. Mukhtar (1992 SCMR 1273), it was held by the Supreme Court that the Muslim Family Laws Ordinance, 1961, shall have to be interpreted and construed in accordance with the Injunctions of Islam as laid down under the Holy Quran and Sunnah and in case of any conflict between the existing law, the Injunctions of Islam shall prevail. In a recent judgment (Muhammad Hanif and others v. Mukarram Khan and others (PLD 1996 Lahore 58), a Division Bench of this Court has held that even if no notice of divorce as required under section 7 of the Muslim Family Laws Ordinance, 1961, is given to the Chairman Local Council, it will not make a divorce ineffective under Sharia. 9. In view of the above, divorce pronounced by respondent No,1 on 1-2-1991, had taken effect under the Islamic Injunction even if the notice to the Arbitration Council intimating such talaq or subsequent proceedings taken in this regard and the certificate issued by the Arbitration Council endorsing the effectiveness of talaq are ignored. As stated above, at the time of pronouncement of talaq at least the petitioner was a citizen of Pakistan and the law of the land i,e, the Muslim Family Laws Ordinance, 1961, was applicable to her. She had accepted the notice and took part in the proceedings before the Arbitration Council without raising any objection to the jurisdiction of the Council. The proceedings before Arbitration Council had finalized on the 27th August, 1991, when the aforesaid talaq was declared to have become effective. She came to this Court through the present Constitutional petition only on the 2nd July, 1995, i,e, after four years. The petition, therefore, also suffers from lathes which does not warrant any interference by this Court at this belated stage as the talaq under the Sharia has already become effective, 10. Whereas a Shariat Appellate Bench of Hon'ble Supreme Court, in the case Allah Dad v. Mukhtar and another (1992 SCMR 1273), observed at para-20 of its judgment that:-- "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, therefore, 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." 11. The above quoted case-law was referred and relied upon by learned counsel for the petitioner in support of his contentions. While the learned counsel for respondent No,1 in support of his contentions relied upon the case of Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf (PLD 1963 SC 51). The relevant Paras-31 and 32 read as under:-- 31. There is then no escape from the conclusion, that on her own showing, Christa Renate had not been properly divorced by the complainant, as she was not a Muslim on the relevant date. 32, The alleged talaq could at best be described as talaq bidat, which is not recognized as valid by Shia law. (See Baillie's Digest of Muhammadan Law, Part-II, p. 118, Tyabji's Muhammadan Law, Third
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Edition, Ss. 136-142, Mulla's Muhammad Law, P.662, Fifteen Edition, Amir Ali's Fourth Edition, Vol.II, p.533). These text-books writers, moreover, are unanimous in stating that according to Shia doctors, the talaq must be orally pronounced by the husband, in the presence of two witnesses and the wife in a set form of Arabic words. A written divorce is not recognized, except in certain circumstances which do not exist in the present case. The learned trial Judge took the view that Exh. D.1, even if it was executed by the complainant, was not effective in law to separate the two spouses because of these provisions of the Shia Fiqh. The Appellate Bench of the High Court regarded the provisions of the Shia Fiqh, with regard to the presence of witnesses and the necessity of an oral pronouncement of divorce, as merely rules of evidence which could be disregarded. The law being however, laid down in categorical terms, it is open to question whether the view taken by the Appellate Bench can be sustained. The learned Judges do not appear to have adverted to the point that the alleged talaq was in the heretical form (Talaqul Bidat) which the Shia dispensation of Islamic Law does not sanction." ' Although the facts of the reported case are quite distinguishable, yet the point, in question i,e, pronouncement of talaq according to the Shia doctors, is however relevant to the case in hand. While the Talaq Bidat, as referred twice in the above case, is defined in detail at pages 205 and 206 in the judgment reported as Mirza Qamar Raza v. Mst. Tahira Begum (PLD 1988 Karachi 169). 12. Likewise, in S.B. Case of this court reported as Mst. Maryam Bano v. Hussain Ali and another (1984 CLC 1961), Mr. Justice Saleem Akhtar, J (as he then was), following the above as well as another authority, observed on the same point as under:-- ' On the basis of these authorities it seems that under Shia Law a husband can divorce his wife by pronouncing Talaq in her presence in Arabic in a prescribed manner. Amir Ali in his book Muhammadan Law, Vol. II, Seventh Edition has stated Shia doctrine of Talaq as follows:- "They do not allow a Talaq to be given in writing nor in any language other than Arabic when there is ability to pronounce the words necessary for a valid repudiation. .... Even an absent husband cannot effect a valid Talaq in writing. He must pronounce the words in the presence of the witnesses, and the fact of his doing so may be recorded in writing, which may be forwarded to the wife or it may be intimated to her otherwise." ' In this regard reference is made to a Saksena's "Muslim Law as administered in British India" who has commented as follows:- "Under Shia Law, a Talaq is of no effect unless it is pronounced: (1) Strictly in accordance with Sunna. (2) In Arabic terms. (3) In the presence of at least two adult male witnesses." ' This follows that Talaq pronounced by respondent No,1 was not valid as it did not comply with the legal requirements prescribed by Shia Law. If a Shia is unable to pronounce talaq in presence of his wife in the prescribed manner then it can be pronounced in presence of two male witnesses and communicated to her in writing. There is nothing on record to show that the respondent No,1 was incapable of pronouncement in the prescribed form before his wife, or that Talaq was at all pronounced in the prescribed form and manner before the witnesses." 13. There appears a serious controversy between the parties on the valid Talaq and/or validity of divorce under the Shia Law. But, on a bare reading of the contents of the Certificate of Talaqnama, dated 9-11-2010, issued by Moulana Yakoob Ali Abid, it appears from the very face of it that there is no mention that the petitioner or the said Moulana recited Seegha or pronounced Talaq, orally, in a set form of Arabic words, to respondent No,1 by her name. It is mentioned in such certificate of Talaqnama that it was decided to issue Seegha of Talaq on behalf of the petitioner, but it is not mentioned therein that such decision was acted A upon and followed by pronouncement of oral Talaq or recitation of Seegha/Khutba Talaq. Such certificate of talaqnama does not say about
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pronouncement of Talaq in prescribed form in presence of witnesses though the names of two witnesses are mentioned therein with their signatures like attesting witnesses of talaqnama but for its pronouncement, their evidence is however not recorded in the court. Though Talaqnama dated 9-11-2010 was followed by Divorce Deed dated 10-11-2010 but it also does not fulfil the requirements of earlier document. Accordingly, the contention of learned counsel for respondent No,1 that necessary conditions for a valid Talaq as per requirements of Shia Law were not fulfilled, no doubt carries force, irrespective of the fact that on account of strained relations between the parties the petitioner decided to divorce his wife and he also divorced her and its notice was also delivered in the office of respondent No,2 on 11-11-2010 and then such Talaqnama and Divorce Deed were admittedly received by respondent No,1 on 16-11-2010. But, no authority has been produced or cited by learned counsel for the petitioner to indicate if necessary conditions as required under Shia Law for a valid talaq, can be avoided or ignored as a whole. On the contrary, the learned counsel for respondent No,1 on the point in question, has rightly placed his reliance on the case of Mirza Qamar Raza v. Mst. Tahira Begum and others (PLD 1988 Karachi 169) as the…
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