Only husband can pronounce Talaq

PLJ 2012 Lahore 183
[Multan Bench Multan]

Present: Kh. Imtiaz Ahmad, J.

Mst. RUQIA BANO--Petitioner

versus

JUDGE FAMILY COURT KAROR PAKKA, LODHRAN and 2 others--Respondents

W.P. No. 5108 of 2004, decided on 26.10.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Concurrent findings cannot be interfered with in writ petition--Pronouncement of talaq was necessary--Dismissal suit for jactitation of marriage and decreed the suit for restitution of conjugal rights--Consolidated judgment--Question of--Whether previous husband had ever divorced plaintiff and if it was proved that he had not divorced plaintiff then even if plaintiff had contracted marriage with defendant even then she could not be said to be legal wedded wife--If talaq nama had been obtained then why the talaq nama had not been produced in evidence--In fact no talaq nama was ever executed--Statement of petitioner does in no way establish that her husband had divorced her--If it is left to discretion of the wife that whenever she would say that she had been divorced by her husband then talaq would be presumed then it would lead to indefinite litigation and even otherwise it is against principle of law, since talaq is to be pronounced by husband and mere statement of wife is not enough to prove that she had been divorced--Courts below had infact misread evidence and had dealt with the case from different angle that since the plaintiff had alleged that she had been divorced, so divorce stands established and thus committed material irregularity while declaring plaintiff to be legally wedded wife of defendant--Normally Courts in a writ petition do not interfere with concurrent findings but when there was clear cut misreading of evidence and material irregularity in impugned judgments High Court has jurisdiction to interfere even if findings are concurrent--Suit was filed by plaintiff for jactitation of marriage stands decreed while suit for restitution of conjugal rights stands dismissed.          [Pp. 189 & 190] A, B, C, D & E

Mr. Muhammad Ramzan Khalid Joya, Advocate for Petitioner.

Malik Muhammad Latif Khokhar, Advocate for Respondents.

Date of hearing: 25.10.2011.

Judgment

Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, consolidated judgment and decree dated 10.12.2003 passed by the learned Judge Family Court, Kahroor Pakka whereby the suit filed by the present petitioner for jactitation of marriage was dismissed while the suit filed by the Respondent No. 3 herein namely Mureed Hussain for restitution of conjugal rights was decreed and consolidated judgment of learned Additional District Judge, Kahroor Pakka dated 14.5.2004 whereby both the appeals filed by the present petitioner were dismissed, have been challenged.

2.  The relevant facts for the disposal of this writ petition are that Mst. Ruqia Bano the present petitioner filed a suit on 19.6.2003 for jactitation of marriage against Mureed Hussain-Respondent No. 3 herein. The claim of the plaintiff was that on 19.5.2003 she was abducted by the defendant along with his companions and during this period the defendant committed Zina with her and thereafter the police recovered her on the order of learned Sessions Judge, Lodhran but during the period of abduction the defendant forcibly obtained her thumb impression on different papers and her husband Qurban Hussain also got the criminal case registered against the defendant and his companions Bearing FIR No. 190-2003 under Sections 10(3) and 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 at Police Station Saddar Kahroor Pakka. It was further alleged that the accused of said criminal case in their bail petition took the plea that the plaintiff was legally wedded wife of defendant and defendant also claimed the plaintiff to be his legally wedded wife, though, the plaintiff never entered into marriage with the defendant nor she was wife of defendant Mureed Hussain nor she ever signed any Nika Nama, though, during the period of her abduction the accused forcibly obtained her thumb marks and signatures. Thus, it was prayed that the plaintiff was not legally wedded wife of Mureed Hussain and decree for jactitation of marriage was sought for by the plaintiff. The suit was resisted by the defendant who filed the written statement wherein it was alleged that Qurban Hussain had divorced the plaintiff with his free consent and after the period of iddat the plaintiff contracted Nikah with the defendant but after the marriage the ex-husband of the plaintiff namely Qurban Hussain who had divorced the plaintiff, enticed away the plaintiff and took her to his home and while leaving the plaintiff also took jewelry and cash of the defendant and thereafter the false case registered against the defendant and with due planning the plaintiff and her husband Qurban Hussain filed a petition under Section 491 Cr.P.C. in the Court of learned Sessions Judge, Lodhran. It was further alleged that the marriage of plaintiff with the defendant took place on 19.3.2002. The defendant also filed a suit for restitution of conjugal rights and both the suits were consolidated and out of the pleadings of the parties, the following consolidated issues were framed :--

1.         Whether the plaintiff has no cause of action to file this suit? OPD

2.         Whether the suit is based on mala fide intention? OPD

3.         Whether the plaintiff is legally wedded wife of the defendant? OPD

4.         Whether the plaintiff is entitled to the decree for jactitation of marriage? OPP

5.         Whether the defendant is entitled to the decree for restitution of conjugal rights? OPD

5-A.     Whether Qurban Hussain has divorced the plaintiff? OPD

6.         Relief.

3.  The parties produced their evidence and after hearing them the learned trial Court decided Issues No. 1 & 2 against the defendant. Issues No. 3 & 5-A were decided in favour of defendant Mureed Hussain. Issue No. 4 was decided against the plaintiff. Issue No. 5 was decided in favour of the defendant and resultantly vide impugned judgment and decree dated 10.12.2003 dismissed the suit for jactitation of marriage and decreed the suit for restitution of conjugal rights. Feeling aggrieved the present petitioner filed two separate appeals, one against the dismissal of her suit for jactitation of marriage and the other against the decree for restitution of conjugal rights passed in favour of the defendant and both the appeals through consolidated judgment were dismissed by the learned Additional District Judge, Kahroor Pakka vide judgment and decree dated 14.5.2004. Hence this writ petition.

4.  Learned counsel for the petitioner contended that it is an admitted fact that both the parties belong to Shia sect and according to Shia Law, the pronouncement of Talaq is necessary but both the Courts below had ignored this fact and from the evidence it is not established that Qurban Hussain husband of the plaintiff had ever pronounced the Talaq. He further contended that according to the defendant Qurban Hussain has executed a written Talaq Nama but strangely enough the said Talaq Nama was not produced in the evidence nor there is any evidence to show that in whose presence Qurban Hussain had ever pronounced the Talaq. He further contended that even if for argument sake it be presumed that the plaintiff had entered into a marriage with Mureed Hussain even then it does not imply that she was divorced by her husband Qurban Hussain and both the Courts below had misread the evidence and had decided the case merely on presumptions and conjectures while ignoring this important aspect of the case that from the evidence it is not established that Qurban Hussain has ever divorced the plaintiff. He further contended that the plaintiff is now residing with Qurban Hussain and has one child out of the wedlock and she is 9 months pregnant and at this stage even the paternity of said child is at stake.

5.  On the other hand, learned counsel for the respondent supported the impugned judgments and decrees of both the Courts below and contended that the evidence produced by the plaintiff clearly shows that plaintiff was divorced by Qurban Hussain and documentary evidence also established this fact. He contended that concurrent findings of both the Court below can not be interfered with in writ petition. He placed reliance upon "Peter John and others Vs. Syed Ali Imam and others" (1986 MLD 1008), "Liaquat Hussain and others vs. Abdul Majid and others" (1986 SCMR 1906), "Shahid Raza Vs. Dr. Fauzia Shaheen etc" (NLR 2005 Civil 235), "Muhammad Nawaz and another Vs. Inayat Muhammad and another" (1990 SCMR 1027) and "Abdul Rahim Vs. Maqbool Ahmad" (NLR 1988 SCJ-126).

6.  Arguments heard. Record perused.

7.  Infact Issues No. 3 & 5-A are the material issues on the basis of which the fate of present controversy rests. As has been mentioned above that in the written statement the defendant alleged that Qurban Hussain had divorced the plaintiff and thereafter she contracted marriage with the defendant. Now the moot point is that whether Qurban Hussain had divorced the plaintiff and if it is proved that she was never divorced by the Qurban Hussain then even if the plaintiff had contracted marriage with Mureed Hussain, even then the said marriage is absolutely void so the determining factor in this case is that whether Qurban Hussain had ever divorced the plaintiff. In this respect Mst. Ruqia Bano herself appeared as PW-1. She deposed that she was married with Qurban Hussain on 22.2.2002 and she was never divorced by Qurban Hussain nor she contracted marriage with Mureed Hussain but she was abducted by Mureed Hussain and her thumb marks were obtained on papers forcibly. In the cross-examination she deposed that she had filed a suit for maintenance against Qurban Hussain but thereafter the compromise was affected. She was questioned by the Court that whether she appeared before the Family Court, Mailsi and made the statement to which she replied that she was forcibly taken away to the Court and her statement was got recorded. She denied that she was ever divorced by Qurban Hussain. She admitted her picture Ex.D-I with Mureed Hussain but deposed that it was forcibly taken in order to blackmail Qurban Hussain. Now from the statement of PW.1 at least it is established that she had denied that she had ever been divorced by Qurban Hussain. Bilal Hussain appeared as PW-2. This witness was brother-in-law of Qurban Hussain and he also deposed that Qurban Hussain had never divorced the plaintiff. Zameer Hussain who was also brother-in-law of Qurban Hussain appeared as PW-3 and he also denied that plaintiff was ever divorced by Qurban Hussain. Qurban Hussain PW-4 deposed that plaintiff was married with him on 22.2.2002 and he had never divorced the plaintiff. The statement of PW-2 also reveals that he admitted that the plaintiff after the alleged marriage with Mureed Hussain remained at the house of father of plaintiff but he denied the suggestion that on 20.12.2002 Qurban Hussain had divorced her. Now this statement at the most suggest that plaintiff married with Mureed Hussain but in no way it proves that she was divorced by Qurban Hussain.

8.  As has been mentioned above that PW-4 Qurban Hussain himself denied that he ever divorced the plaintiff. In the cross-examination he denied that on 12.2.2002 he had purchased the stamp paper and handed over it to Irshad Hussain father of plaintiff. He also denied that on 12.12.2002 he had divorced Mst. Ruqia Bano. He also admitted that the plaintiff had filed a suit against him at Mailsi and appeared before the said Court and made the statement. He denied that Mst. Ruqia Bano before the said Family Court at Mailsi had made the statement that Qurban Hussain had divorced her. Besides this oral evidence a copy of FIR Ex.P-1 and copy of Nikah Nama mark "A" was produced by the plaintiff in evidence. On the other hand Shamshad Ahmad appeared as DW.1. This witness is very much material since on the basis of statement of this witness and other DWs both the Courts below had come to the conclusion that Qurban Hussain had divorced the plaintiff. This witness deposed that on 12.12.2002 Qurban Hussain, Niaz Shah, Zafar Abbas, Bashir Shah, Irshad Shah and Mushtaq Shah after Maghrab came to him and Mureed Hussain got executed Talaq Nama on the stamp paper of value of Rs.85. Qurban Hussain got it written with his consent and he thumb marked the same and that Qurban Hussain was previously known to him and after writing the said Talaq Nama he handed it over to Qurban Hussain and also made entry in the register of stamp paper and Qurban Hussain also thumb marked and signed his register and this stamp paper was entered at Serial No. 1126 of the said register dated 12.12.2002. He further deposed that Qurban Hussain got executed another Iqrar Nama which was executed between Irshad Hussain father of plaintiff and Qurban Hussain and this stamp paper was also signed by Qurban Hussain and 4 others. Iqrar Nama was entered at Sr.No. 1127 dated 12.12.2002 and this Iqrar Nama is Ex.D-2. Now if we go through the statement of this witness, this clearly shows that allegedly on 12.12.2002 two stamp papers were executed by Qurban Hussain, one was Talaq Nama which was handed over to Qurban Hussain and other was Iqrar nama. Iqrar Nama has been produced as Ex.D-2 but strangely enough the said written Talaq Nama has not been produced in evidence. At the most it implies that Talaq Nama was got executed by Qurban Hussain but no where statement of this witness shows that Qurban Hussain had pronounced the Talaq. Until and unless the Talaq is pronounced, it cannot be presumed that Qurban Hussain had divorced the plaintiff.

9.  There is yet another aspect which must be kept in mind that as to when allegedly Qurban Hussain had divorced the plaintiff. When PW-4 Qurban Hussain himself appeared as a witness the suggestion was put to him that he had divorced Mst. Ruqia Bano on 12.12.2002. However, when PW-2 appeared as witness a suggestion was put to him that Qurban Hussain had divorced Mst. Ruqia Bano on 20.12.2002 but when the plaintiff herself appeared as PW. 1 no date was put to her that on the said date i.e. on 12.12.2002 or 20.12.2002 Qurban had divorced her. It may also be mentioned here that Ex.D-2 stamp paper of Iqrar Nama was not issued in the name of Qurban Hussain but in the name of Irshad Hussain and entry is available on the back of Ex.D-2. Niaz Hussain appeared as DW.2. He narrated entirely different story. He submitted that Qurban had filed a suit for restitution of conjugal rights on 23.11.2002 and notice was received at the house of Irshad Hussain and both the parties on 12.12.2003 (and not on 12.12.2002) assembled at his house and he asked Irshad Hussain not to get the criminal case registered but they would get executed the Talaq Nama from Qurban Hussain and on the same day Qurban Hussain executed the Talaq Nama. Now according to this witness the Talaq nama was executed on 12.12.2003. This also negates the version of defendant that on 12.12.2002 Qurban Hussain had executed Talaq Nama. At the cost of repetition it may be mentioned here that said Talaq Nama has never been produced in the Court. Now this witness is also silent that Qurban Hussain had ever pronounced the Talaq orally as is the case of DW.1. The third witness is Mushtaq Hussain, who is DW-3 and he is father of Mureed Hussain defendant. He deposed that father of plaintiff had obtained Talaq from Qurban Hussain through Punchayat and Qurban had divorced the plaintiff with his free consent. He has not uttered even a single word that Qurban Hussain had pronounced the Talaq or had ever executed any Talaq Nama so his statement also does in no way imply that Qurban had ever pronounced the Talaq. In the cross-examination also he admitted that at the time of Talaq he was not present. He also admitted that even in the Punchayat he was not present. In the cross-examination he further deposed that Seghaz (           ) of Talaq were recited by Zulfiqar Shah at the house of Irshad Hussain but strangely enough the said Zulfiqar Shah has not been produced as a witness. He admitted that it was his uncle who informed him that plaintiff had been divorced. Mureed Hussain himself appeared as DW-5. He deposed that plaintiff was divorced by Qurban Hussain. He admitted that Qurban Hussain got criminal case registered against him for abduction of plaintiff and he remained in jail. He has not uttered even a single word that in whose presence Qurban Hussain had ever pronounced the Talaq.

10.  As far as documentary evidence is concerned, Ex.P-1 is the copy of FIR No. 190 dated 4.6.2003 wherein Qurban Hussain had got the criminal case registered against Mureed Hussain for the abduction of his wife Mst. Ruqia Bano. Ex.D-1 is the photograph of Mureed Hussain and plaintiff but as has been mentioned above that the main controversy is that whether Qurban Hussain had ever divorced the plaintiff and if it is proved that he had not divorced the plaintiff then even if the plaintiff had contracted marriage with Mureed Hussain even then she could not be said to be legal wedded wife of Mureed Hussain. Ex.D-2 is the Iqrar nama allegedly executed between Irshad Hussain and Qurban Hussain. In this Iqrar nama it is mentioned that Irshad Hussain through Punchayat had obtained the Talaq nama dated 12.12.2002. Even in this Iqrar Nama it is nowhere mentioned that Qurban Hussain had pronounced  the  Talaq.  If  the Talaq Nama had been obtained by Irshad Hussain as is mentioned in Ex.D-2, then why the said Talaq Nama has not been produced in evidence. This apparently also shows that infact no Talaq Nama was ever executed. Had it been so executed, this would have been the most material document. Ex.D-3 is the copy of plaint which shows that on 17.2.2003 the plaintiff had filed a suit for maintenance against Qurban Hussain. The order sheet shows that on 25.4.2003 the defendant Qurban Hussain made the statement that he was ready to pay Rs.500/- per month as maintenance provided the plaintiff resides with him. On this statement the plaintiff was summoned by the Family Court, Mailsi. The plaintiff appeared before the Court on 3.6.2003. It may be mentioned here that this was not the date fixed in the main suit and file was requisitioned on the written application of Mst. Ruqia Bano wherein she made the statement that Qurban Hussain had divorced her and she had not filed the suit and she had contracted marriage with Mureed Hussain and that the suit be dismissed. Now strangely enough on the same statement the case was adjourned for the fixed date wherein only order was passed that since the plaintiff had refused that she had filed the suit so it be dismissed. The said Court had not summoned Qurban Hussain to verify this fact that whether he had divorced the plaintiff or not in this way this statement of Mst. Ruqia Bano does in no way establish that Qurban Hussain had divorced her. If it is left to the discretion of the wife that whenever she would say that she had been divorced by her husband then the Talaq would be presumed then it would lead to indefinite litigation and even otherwise it is against the principle of law, since Talaq is to be pronounced by the husband and mere statement of wife is not enough to prove that she had been divorced. Ex. D-5 is a petition moved by Irshad Hussain against Qurban Hussain for harassment and this document is as no help for reaching at the conclusion that Qurban Hussain had divorced the plaintiff. Thus, after going through the entire evidence, it stands established that no where from the evidence it is proved that Qurban Hussain had ever divorced the plaintiff Both the Courts below had infact misread the evidence and has dealt with the case from different angle that since the plaintiff had alleged that she had been divorced, so the divorce stands established and thus, committed material irregularity while declaring the plaintiff to be the legally wedded wife of Mureed Hussain.

11.  As far as the contention of learned counsel for the respondent with regard to concurrent findings of both the Courts below are concerned, suffice it would be to say that normally the Courts in a writ petition do not interfere with the concurrent findings but when there is clear cut misreading of evidence and material irregularity in the impugned judgments, this Court has the jurisdiction to interfere even if the findings are concurrent. On this principle the case law cited by the learned  counsel  for  the  respondent  is distinguishable. Resultantly, the findings of learned Trial Court and learned appellate Court on Issues No. 3, 4, 5 & 5-A are set aside. Issue No. 3 stands decided against the defendant. Issue No. 4 stands decided in favour of the plaintiff. Issues No. 5 and 5-A stands decided against the defendant. Resultantly, the judgments and decrees of both the Courts below are set aside and the suit filed by the plaintiff for jactitation of marriage stands decreed while the suit filed by Mureed Hussain for restitution of conjugal rights stands dismissed. Since the complicated questions of fact and law were involved, so the parties are left to bear their own costs.

(R.A.)  Petition allowed