‑ Talaq pronounced by husband to wife thrice would become "Bain" and husband would 'have no right of its revocation as per Injunctions laid down in Holy Qur'an and Sunnah, relating to divorce and .its revocation, and to that extent provision of S.7, Muslim Family Laws Ordinance, 1961, would give its way to those Injunctions as enshrined in the Constitution‑

1996 M L D 1689

Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S.7‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Talaq pronounced by husband to wife thrice‑‑‑Right of revocation by husband‑‑‑Legality‑‑‑Withdrawal of notice of Talaq by husband from Administrator, Union Council ‑‑‑Validity‑‑ Talaq pronounced by husband to wife thrice would become "Bain" and husband would 'have no right of its revocation as per Injunctions laid down in Holy Qur'an and Sunnah, relating to divorce and .its revocation, and to that extent provision of S.7, Muslim Family Laws Ordinance, 1961, would give its way to those Injunctions as enshrined in the Constitution‑‑‑Contents of Talaqnama in writing, clearly indicated that same was irrevocable and that respondent had no mind to revoke the same‑‑‑Respondent was wrong in claiming. in the alleged application for revoking of Talaq that his, wife was also agreeable to have reconciliation with him‑‑‑Talaq pronounced by respondent being irrevocable, Administrator, Union Council was bound to issue certificate regarding its effectiveness‑‑‑High Court declared that Talaq pronounced by respondent had become effective and irrevocable; respondent could not claim petitioner to be his wife; and Administrator, Union Council was directed to issue certificate confirming effectiveness of Talaq.

Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi and others 1984 SCMR 583 and Allah Dad v. Mukhtar and another 1992 SCMR 1273 ref.

Shaukat Hussain v. Mst. Rubina and others PLD 1989 Kar. 513 rel

Ch. Abdul Subhan for Petitioner.

Nemo for Respondent No. 1.

Malik Ghulam Farid for Respondent No.2

Date of hearing: 29th November 1995.

 SALAM DIN VS STATE
1996 M L D 1689
[Lahore]
Before Muhammad Islam, Bhatti, J
ZUBAIDA KHATOON‑‑‑Petitioner
Versus
ADMINISTRATOR UNION COUNCIL UCH GILLANI, TEHSIL AND DISTRICT BAHAWALPUR and another‑‑‑Respondents
Writ Petition No. 1988 of 1995/BWP; heard on 29/11/1995.

JUDGMENT

Mst. Zubaida Khatoon daughter of, Khuda Bakhsh brought this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, filed on 24‑8‑1995, claiming therein that she was married with Mushtaq Ahmad, respondent No.2, on 11‑1‑1989 in village Noorpur, Tehsil and District Bahawalpur. The marriage was duly registered in accordance with the rules prescribed by the Muslim Family Laws 'Ordinance, 1961. A son and a daughter were born out of the wedlock. The petitioner was, however, turned out of his house by respondent No.2 about 10/11 months ago.: On 24‑1‑1995, the respondent pronounced Talaq against the petitioner and communicated the same to. the petitioner by means of a Talaqnama in writing An intimation was also sent to the Administrator, Union. Council Uch Gillani. The petitioner thus claimed that Talaq Bidat pronounced by respondent No.2 thrice became effective immediately and was irrevocable and as such the petitioner was no longer the wife of respondent No.2. The petitioner approached the respondent No.1 with a request that since respondent No.2 had pronounced Talaq Bain and a notice thereof had also been received by him (respondent No.1), a certificate of effectiveness of Talaq should be issued. Respondent No.1 hesitated to issue a certificate in this regard in league with respondent No.2 and remained lingering on the matter on one pretext or the other. She claimed that respondent No.1 finally refused to issue the divorce certificate where after respondent No.2 again started claiming that the petitioner continued to be his lawfully wedded wife. Finding no other efficacious remedy, the petitioner had to file this writ petition for a declaration:‑‑‑ .

(i) That Talaq pronounced .and communicated by respondent No. 1 on 24‑1‑1995 became effective immediately and was irrevocable;

(ii) that respondent No.2 be restrained from claiming the petitioner as his legally‑wedded wife; and .

(iii) that respondent No. l be directed to issue a certificate regarding the effectiveness of Talaq in favour of the petitioner.

2. A copy of this petition was sent to respondent No.1 for filing his parawise comments and also to appear in person before this Court. This order passed on 3‑9‑1995 was not complied with. OnA4‑9‑1995, therefore, it was directed that a notice be issued to respondent. No.1 to show cause as to why contempt proceedings be not initiated against him. On 21‑9‑1995 respondent No.1 put in appearance and requested for an adjournment as, according to him the record was not available. His request was acceded to and the case was adjourned to 27‑9‑1995. On that date, respondent No.1 submitted his parawise comments and claimed that he could not finalize the matter as the Secretary, Union Council was not available. He undertook to decide the matter within a week. The case was, therefore, adjourned to 4‑10‑1995. He was directed to bring all the relevant record. The Secretary, Union Council concerned was also directed to put in appearance in person. On 4‑10‑1995 it was observed that respondent No. 1 had, while putting in appearance on 27‑9‑1995, submitted that record was not available and that he could not finalize the matter. He, however, made no reference to any application supposed to have been submitted or tendered by respondent No.2 for withdrawal of his Talaq which was pronounced through a written agreement dated 24‑1‑1995. The Administrator, however, took a very different stand in saying that respondent No.2 did make an application for withdrawal of the Talaq within time, pursuant to which he issued a certificate on 4‑3‑1995 declaring that Nikah of Mst. Zubaida with Mushtaq had been restored. When asked to produce the original application of respondent No.2 on the basis of which the afore‑referred certificate was issued, the Administrator expressed his inability by saying that the same was not traceable and perhaps it was with the Secretary, Union Council. The Secretary, Union Council who was also present in Court on that date, too expressed his inability to produce the record and said that the record had been lost. Mr. Justice Tassaduq Hussain Jilani before whom the parties had put in: appearance on that date, made the following observations:‑‑‑

"3. The conducts respondent No.1 was evasive. On 21‑9‑1995 and on 27‑9‑1995 he made no reference to the afore‑referred certificate. Today, he has produced a certificate declaring that the Nikah has been restored but expressed his inability to produce the original record or any despatch register.

4. In this view of the above, prima facie the sanctity of the certificate issued by him stands eroded."

This writ petition was, therefore, admitted to regular hearing

3. I have given a patient hearing to the learned counsel for the parties and have also gone through the record. The learned counsel for the respondent is of the view that Talaq would have become effective only after notice of Talaq had been given to the Chairman and a period of three months provided for bringing out a reconciliation between the parties had expired. Relying on Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi and others 1984 SCMR 583 and Mushtaq Ahmed and another v. Mst. Sat Bharai and 5 others 1.994 SCMR 1720, he has urged that during a period of 90 days the husband had the option to revoke the divorce and the divorce was to become effective only on the expiry of this period after service of notice. According to him, since Mushtaq Ahmad; respondent No.2, revoked the Talaq pronounced by him; the Administrator of the Union Council issued a certificate regarding restoration of their marriage and it; therefore, cannot be said that the Talaq had become effective and irrevocable. The learned counsel for the petitioner has, on the other hand, urged that Talaq, pronounced by a Muslim husband thrice instantaneously becomes effective and irrevocable dissolves marital tie as was held in Mst. Amira Bokhari v. Faqir Syed Jamiluddin Bokhari and others PLD 1994 Lah. 236 and the proceedings thereafter taken under section 7 of the Muslim Family Laws Ordinance, 1961 would be a mere exercise in futility and nullity in the eye of law. He has supported his contention by what has been given in section 312 of Muhammadan Law, also referred to in Muhammad Rafique v. Ahmad Yar and another PLD 1982 Lah. 825. The Shariat Appellate Bench Supreme Court of Pakistan also held in Allah Dad v. Mukhtar and another 1992 SCMR 1273 that divorce would become effective even in the absence of notice to the Chairman under section 7 of the Muslim Family Laws Ordinance, 1961. In fact, as I observed by Tanzil‑ur‑Rehman, J. in Shaukat Hussain v. Mst. Rubina and others PLD 1989 Kar. 513 the Talaq pronounced by a husband to a wife thrice becomes Bain and the husband has no right of its revocation according to the interpretation of the relevant Injunctions laid down in the Holy Qur'an and Sunnah, relating to the divorce and its revocation, and to that extent the provisions of section 7 of the Muslim Family Laws Ordinance will give its way to those Injunctions as enshrined in the Constitution of Islamic Republic of Pakistan, 1973.

4. Considering the facts of the case in hand, in the light of these pronouncements of the superior Courts of Pakistan, I am left with no doubt m my mind that the Talaq pronounced by Mushtaq Ahmad, respondent No.2 was irrevocable. I have gone through the contents of Talaqnama in writing dated 24‑1‑1995 and I feel convinced that he also had no mind to revoke it. The words Hara'm, Hara'm Hara'm, clearly indicate the state of his mind and he had enumerated the circumstances in which he had to pronounce Talaq and also the terms on which both the children had been given to him. He was, therefore, obviously wrong in claiming in the so‑called application dated 27‑2‑1995 for revoking the Talaq, that his wife was also agreeable to have reconciliation with him.

5. I also cannot ignore the contention of the learned counsel for the petitioner that the period of 90 days has also nothing to do with the Islamic Injunctions. He has drawn. my attention again to Allah Dad v. Mukhtar and another 1992 SCMR 1273 in which it has been laid down that the minimum period of Iddat may be 39 days because this is the period in which it is possible for a woman to have three menstruation with two intervening periods of purity. It is thus established on the record that the Talaq pronounced by Mushtaq Ahmad in the present case is irrevocable and the Adminitrator Union Council respondent No.1, was bound to issue a certificate regarding its effectiveness.

6. This writ, petition is accordingly accepted with costs in the following terms:‑‑‑

(i) Talaq pronounced on 24‑1‑1995 has‑become effective and irrevocable;

(ii) respondent No. 2 cannot claim the petitioner to be his wife;

(iii) respondent No.1 shall issue a certificate confirming the effectiveness of Talaq.

A.A./Z‑1/LPetition accepted.