Oral Talaq even if proved is invalid since no notice under section 7 of Muslim Family Laws Ordinance, 1961

11. In another case reported as “Mst. Batool Bibi v. Muhammad Hayat and another” (1995 CLC 724) it is held that:-

 “The objection of learned counsel for respondent No.1 that oral Talaq even if proved is invalid since no notice under section 7 of Muslim Family Laws Ordinance, 1961 was given by respondent No.1 to Chairman, Union Council or to the petitioner is not sustainable. It has been held in case titled Allah Dad v. Mukhtar and another (1992 SCMR 1273) that failure to send notice to Chairman, Union Council does not render the divorce ineffective in Shariah. The same has been held in another case titled Mst. Zahida Shaheen and another v. The State and another (1994 SCMR 2098). Respondent No.1 had assailed the genuineness of the Nikahnama, however, he has not been able to lead any evidence to the effect that the Nikahnama is forged. There is a rebuttable presumption regarding the validity of public documents. Since this presumption has gone unrebutted, the Nikahnama stands as a genuine document and it is stated in the Nikahnama that the petitioner has entered into Nikah after being divorced. Respondent No.2 has not properly appraised the evidence regarding pronouncement of oral Talaq nor has he taken into consideration the fact that the genuineness of Nikahnama of the petitioner with Lal has gone unchallenged. Respondent No.2 has also not taken into consideration the fact that the petitioner was pregnant during the proceedings for jactitation of marriage. He passed the impugned order setting aside the judgment of the learned Judge, Family Court and consequence of his order would be that child born to the petitioner would be considered illegitimate. In such a situation, the law leans in favour of validity of marriage and legitimacy of a child who is innocent. This consideration was totally disregarded by respondent No.2. He also failed to take into consideration the fact that in pursuance of his judgment, the petitioner and Lal would be convicted and sentenced in the case pending against them under the Zina Ordinance.” Reliance is also placed upon the cases reported as “Ms. Roheela Yasmin v. Ms. Neelofar Hassan and 6 others” (2014 YLR 2315), “Mst. Zarina Begum v. Major Aziz ul Haq and 3 others.”(2006 CLC 1525) and “Hamid Hameed Waris v. Mst. Tehseen” (PLD 2002 Karachi 518).

Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE

RAWALPINDI BENCH, RAWALPINDI

WP- Family Law
3045-14

2015 LHC 5006