PLJ 2014 Lahore 340
Present: Muhammad Khalid Mehmood Khan, J.
versus
W.P. No. 16219 of 2011, decided on 24.1.2014.
----Ss. 6 & 7--Constitution of pakistan
----It is an admitted fact that both the parties are Muslim by faith and also citizens of Pakistan , their marriage was solemnized in Pakistan
Date of hearing: 18.12.2012.
Judgment
Through this constitutional petition, the petitioner has prayed that Respondent No. 1 be directed to issue certificate of Talaq in terms of notice of Talaq dated 14.6.2011 issued by the son of the petitioner.
2. With the consent of the parties this case is decided as pacca case.
3. Briefly stated the facts of this case are that the petitioner's only son Malik Sajjad Khalid was married with Respondent No. 2. Out of the wedlock four daughters borne. Malik Sajjad Khalid died on 20.6.2011 due to Cardio Pulmonary arrest in Sheikh Zayed Hospital , Lahore
4. Learned counsel for petitioner submits that the relations between the Respondent No. 2 and deceased were not cordial, they were leading their life in a severe tension. Respondent No. 2 earlier left the house of deceased alongwith four minor daughters and filed a suit for payment of maintenance allowance of herself as well as maintenance of four minor daughters. Malik SajjadKhalid filed his written statement before his death and also issued a notice of Talaq to Respondent No. 2. The deceased Malik Sajjad Khalid divorced thrice to Respondent No. 2 and as such the moment notice was served upon Respondent No. 2 Talaq become effective and Respondent No. 2 is no more the widow of deceased. Under Section 6 of the Muslim Family Law Ordinance, 1961 Respondent No. 1 is duty bound to issue a certificate of Talaq as 90 days have expired. Learned counsel for petitioner has relied on Mst. Zarina Begum v. Major Aziz-ul-Haq and 3 others (2006 CLC 1525) and Allah Dad vs. Mukhtar and another (1992 SCMR 1273) and submits that notice of Talaq is not mandatory under the injunction of Islam and no divorce announced or written by the husband cannot be ineffective or invalid in Shariah only for the reason that notice has not been given to Chairman Union Council. He has also relied on Mst. Zohra Jan vs. The State, etc (2005 P.L.R 926) and Ahmad Nadeem vs. Chairman, Arbitration Council and others (1991 MLD 1198).
5. Learned counsel for Respondent No. 2 submits that the Talaq between the deceased and Respondent No. 2 was not finalized as after 6 days of issuance of notice of Talaq the husband of Respondent No. 2 died, after the death of husband of Respondent No. 2 and before expiry of 90 days the Talaq automatically become ineffective and Respondent No. 2 is the widow of deceased Malik Sajjad Khalid, Learned counsel submits that Respondent No. 2 was married on 19.4.1998 with deceased Malik Sajjad Malik according to Shariat-e-Muhammadi, the parents of Respondent No. 2 gifted 80 tollas gold ornaments to her daughter. The deceased sold that gold ornaments and purchased 6 acres of land, four daughters borne out of the wedlock who are studying in different classes. The differences arose between the husband and wife and Respondent No. 2 came to her parent’s house, Respondent No. 2 filed a suit for the payment of her maintenance allowance and maintenance allowance of four minor daughters. The deceased husband filed written statement in that suit and specifically stated that for the last several years his only need is the personal attention and medical care as he is suffering from hepatitis-B. Learned counsel further submits that it is the father of deceased who managed the divorce notice anti dated with the connivance of Respondent No. 1, further submits that right to revoke the Talaq remains with the deceased husband up to 90 days under Section 7 of Muslim Family Law Ordinance, 1961. Learned counsel for Respondent No. 2 has relied on Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi and others (1984 SCMR 583), Sardar and 3 others vs. Malik Khan alias Malla and 6 others (2003 YLR 2623), Mushtaq Ahmad and another vs. Mst. Sat Bharai and 5 others (1994 SCMR 1720) and AbbasKhan and 3 others vs. Mst. Sat Bherai and 2 others (1993 CLC 2181).
6. Heard. Record perused.
7. The only dispute between the parties requires resolution is whether Talaq between the deceased son of petitioner and Respondent No. 2 become effective or not? The deceased allegedly pronounced Talaq as per contents of notice of Talaq on 14.6.2011 and the notice of Talaq was sent to Respondent No. 2. No doubt the contents of notice provides that deceased mentioned or uttered the words but surprisingly the said notice was shown to be sent on 18th August. If the husband of Respondent No. 2 signed the Talaq Nama on 18th August, admittedly on 18th August he was not alive as admittedly he died on 20.6.2011 no doubt on notice date of 14.6.2011 is also mentioned but no explanation is available on record why the date of 18th August is mentioned on the notice, this alone fact is sufficient to establish that deceased has not sent the Notice of Talaq to Respondent No. 2. The wording used in the notice of Talaq is as under:-
8. The deceased has written in the notice of Talaq as under:-
9. But it is not established from the document that notice was sent to Chairman Union Council as well as Respondent No. 2 specially when the date of dictation of this notice is shown as 18 August, if it is written on 18 August then it is a proven fact without any other evidence that the Notice was written by a person other than the deceased as the deceased had died on 20.6.2011 but for the sake of arguments if we accept that the deceased husband of Respondent No. 2 has written notice of Talaq on 14.6.2011 and sent the same to Respondent No. 2 as well as Respondent No. 1, the Respondent No. 2's husband died on 20.6.2011, and 90 days in terms of Section 7 of Muslim Family Law Ordinance, 1961 were not expired. It is a settled principle of law that the husband can withdraw the notice of Talaq before expiry of 90 days. This issue was dilated upon by the Hon'bleSupreme Court of Pakistan in a case reported as Mushtaq Ahmad and another vs. Mst. Sat Bharaiand 5 others (1994 SCMR 1720) and it was held as under:-
"From the facts narrated above it is clear that Gheba Khan died much before the expiry of 90 days. During this period, if he would have been alive, he would have had the option to revoke the divorce pronounced by him. There is a procedure provided under law under which reconciliation proceedings are initiated and it is only on expiry of 90 days of service of notice that the Talaqbecomes effective. On the date Gheba Khan died, Talaq had not become effective in terms of Section 7 of the Ordinance. Therefore, the respondent continued to be his wife. In these circumstances, she was entitled to inherit the property of her husband."
10. It is an admitted fact that both the parties are Muslim by faith and also citizens of Pakistan , their marriage was solemnized in Pakistan
11. There is another aspect of this case, the deceased in his written statement himself in reply to suit for maintenance allowance filed by Respondent No. 2 and 4 minor daughters has mentioned as under:-
"The contents of plaintiff on violence or beatings is incorrect as the Defendant himself is seriously ill. For the last several years the Defendant's only need was attention and medical care. Defendant has been suffering from Hepatitis "B". Such allegations are not only concocted but also extremely painful. Defendant had no ability nor the moral courage to commit any act of violence against the plaintiff No. 1 in a house which is also occupied by the defendant’s parents and minor girls and when the house of in-laws is also in the neighborhood."
12. In the entire written statement the deceased has not shown his intention that he intends to divorce his wife. Hence it is not understandable suddenly before 06 days of his death what forced him to divorce his wife. It seems that the petitioner who is the father of deceased has managed this notice of Talaq only to usurp the immovable property of the deceased. From the facts stated above it is thus clear that the deceased has not divorced his wife and if presumed that he divorced his wife on 14.6.2011 even then before expiry of 90 days he died and the petitioner is no one to say that the divorce was finalized, it was the deceased who may withdraw the notice of Talaq before expiry of 90 days. Hence, in the absence of the deceased husband it cannot be said or presumed that the deceased has divorced his wife and he has no intention to revoke the notice of Talaqspecially when he has four minor daughters from Respondent No. 2.
13. In view of the above, it is established beyond any shadow of doubt on record that Respondent No. 2 is the widow of deceased Malik Sajjad Khalid. This petition thus is merit less and is dismissed accordingly.
(R.A.) Petition dismissed
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