Case laws on TALAQ
1996 MLD 1689. Zubaida Khatoon V/S Administrator Union Council Uch Gillani (Lah.)
S.7. 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 Quran and Sunnah,
relating to divorce and its revocation and to that extent provisions of
S.7 Muslim Family Laws Ordinance, 1961, would give its way to those
injunctions as enshrined in the constitution.
1998 MLD 486. Mst. Rehmat Ara V/S Mehmoodul Hassan & another (Lah.)
S.7. Husband asserted that period of “Iddat” of 90 days must be counted
from date of issuance of notice to Arbitration Council and not from the
date of pronouncement of Talaq. Commencement of period “Iddat”… Talaq
was validly given by husband on 9-6-1996 when the same was pronounced
and period of “Iddat” of three months had expired on 9-9-1996 and talaq
became final on said date. Withdrawal of talaq by husband on 21-10-1996
(after it had become final) was inconsequential and ineffective.
1998 MLD 85. Farah Khan V/S Tahir Hamid Khan & another (Lah.)
Marriage between petitioner and respondent was solemnized in accordance
with provisions of Muslim Family Law Ordinance, 1961 in Pakistan.
Respondent divorced petitioner which was endorsed by Arbitration
Council. Validity. Originally both petitioner and respondent were
Pakistani citizens and after three years of marriage only respondent had
acquired citizenship of USA. Muslim Family Laws Ordinance, 1961, would
extend to whole of Pakistan and applied to all muslim citizens of
Pakistan wherever they might be in terms of S.(2) of the Ordinance.
Provisions of Muslim Family Laws Ordinance, 1961, could be invoked where
one of the party to marriage was Muslim citizen of Pakistan. Even if it
was presumed that Arbitration council had no jurisdiction to entertain
notice of talaq given by respondent under provisions of S.7 Muslim
Family Law Ordinance, 1961, right of talaq vested in husband under
Sharia had not been taken away from any Muslim, irrespective of the
country to which he belonged. Despite restrictions contained in Muslim
Family Laws Ordinance, 1961, husband’s right of talaq would prevail as
given to him under Quranic injunctions. Divorce pronounced by respondent
had, thus, taken effect under Islamic injunctions even if notice to
Arbitration council intimating such talaq or subsequent proceedings
taken in that regard and certificate issued by Arbitration council
endorsing effectiveness of talaq, were ignored. Constitutional petition
also suffered from laches which would not warrant interference by High
court at such belated stage when talaq under Sharia had already become
effective.
1998 MLD 1216. Abdullah V/S Mst. Shaheen & 2 Others (Pesh.DB)
S.2(v). Proviso ©. Dissolution of marriage on ground of impotency of
husband. Decree for dissolution of marriage was granted to wife by
Family Court on ground of impotency of husband on only evidence
furnished by Lady Doctor to the effect that hymen of the wife being
intact, she was a virgin. According to settled medical and scientific
phenomenon, factum of hymen being intact, was not a conclusive proof of
virginity because hymen in certain cases is so flexible that it is not
repertured by incideence of first delivery. Evidence on record indicated
that husband and wife had tried to produce their own medical
certificates by consulting Doctors themselves, but court had not
referred same for examination which had shown touch of personal
involvement of court. Better approach would have been to get the parties
medically examined through court. Application filed by husband under
proviso © of S.2(v) of Dissolution of Muslim Marriages Act, 1939, was
also not considered by Family Court before passing decree for
dissolution of marriage on ground of impotency of husband. Family Court
had acted without jursidiction and also had exercised jurisdiction not
vested in it as Family Court could not pass decree for dissolution of
marriage on the ground of impotency of husband, unless on application of
husband, he was required to satisfy the court within one year from the
date of such order that he had ceased to be impotent. If husband so
satisfies the court within such period qua the same woman involved, no
decree for dissolution of marriage would be passed on ground of
impotency. Judgement of Family Court was set aside and case was remanded
to be decided afresh after complying with provisions of proviso © of
S.2(v) of Dissolution of Muslim Marriages Act, 1939.
NLR 2002 SD 161. Mst. Ambreen Shah V/S Chairman Union Council etc. (Lahore)
Pronouncement of triple talaq by husband. According to verse 230 of
Surah Baqra of the Holy Quran, talaq becomes irrevocable. Husband cannot
subsequently revoke such talaq.
PLD 2002 Lahore 518. Hamid Hameed Waris V/S Mrs. Tehseen
Divorce. If a husband announces divorce thrice to his wife, same
becomes operative according to Hanafi Sect. (2) S.2(ix). Suit for
dissolution of marriage. Oral pronouncement of divorce by husband to his
wife. Husband not reducing such divorce in writing. Remedy of wife to
get confirmed such oral divorce. Wife in such circumstances had no other
option, but to approach the Court.
PLD 2003 Peshawar 169.Fazli-e-Subhan V/S Sabereen & 3 Others (DB)
S.7 & 8. Muslim Family Laws Ordinance 1961. Muslim Family Laws
Ordinance, 1961 had abolished the practice of disapproved form of
:Talaq" and mode prescribed in the ordinance was that of a
"Talaq-e-Ahsan" and by the ordinance it had been made mandatory that the
notice of "Talaq" would be effected only if efforts of reconciliation
would fail. Law prevailing previous to the enforcement of Muslim Family
Laws Ordinance, 1961 had made it obligatory for the couples divorced by
any mode of "Talaq" other than "Talaq-e-Ahsan" not to re-marry each
other again, unless wife married another man who died or divorced her
after actual consummation and she married her first husband after period
of "Iddat". Before re-marriage parties had to prove that bar to their
marriage was removed by intermediate marriage, consummation and
dissolution, otherwise their marriage was not considered valid. Mode of
"Talaq" effected under provisions of the 1961 Ordinance being almost
that of "Talaq-e-Ahsan, the couples could re-marry without any
intervening marriage except where they had been divorced thrice and the
third divorce had become effective and in that case they could not
re-marry without an intervening marriage. Plain reading of S.7 of the
1961 Ordinance, though had implied that all kinds of "Talaq" had been
made revocable without an intervening marriage and could be that its
repugnancy to such extent could validly be agitated on the touchstone of
Quranic behest and the traditions of Holy Prophet (p.b..u.h.) but
neither vires of said S.7 had been challenged nor matter raised in case
pertained to all kinds of "Talaqs"-- Matter, in the present case,
pertained to "Talaq" obtained by wife through Court decree in shape of
Khula".
NLR 2004 SD 190. Shoukat Ali & another V/S The State (FSC).
S.10 Zina Ord. S.7(I) Muslim F.L.Ord.1961, Talaq pronounced by husband
in accordance with requirements of Shariah without following the
procedure laid down in S.7 would be valid pronouncement of Talaq.
Failure to follow procedure laid down in S.7 may entail punishment but
would not invalidate Talaq which is conscious and willful pronouncement
of Talaq with intention to release wife from marriage bond. CONVICTION
SET-ASIDE.
PLD 2004 Lahore 77.Mst. Nazir Fatima Nazim Union Council
S.5 & Schedule Family Courts Act 1964. One of the conditions of the
marriage between parties was that husband had delegated the right do
divorce wife and try to that effect was made in column No.18 of
Nikahnama. Wife in exercise of said right pronounced divorce upon
herslef for her husband and a notice was sent to Nazim Union Council
concerned. Nazim had intimated wife that husband being not ready to
pronounce divorce, wife could approach the court as he could not grant
Khula and Nazim sent the case to the Family Court. Nazim was oblivious
of legal position as right of divorce could be lawfully delegated by
husband to wife and that had happened in the present case and notice was
sent by wife in compliance with the terms of S. 7 & 8 of Muslim
Family Laws Ordinance, 1961. Ninety days prescribed period having
expired after receipt of notice issued by wife and reconciliation being
not possible between the parties, law as prescribed in S.7(3) & 8 of
Muslim Family Laws Ordinance, 1961 would have in course. Nazim would
issue requisite document regarding receipt of notice and failure of
reconciliation within prescribed time.
PLD 2004 Lahore 316. Mian Arif Mehmood V/S Mst. Tanvir Fatima & another
S.7(3) & (5) Muslim Family Laws Ordinance 1961. Divorce pronounced
by the husband upon the wife having not been revoked, had become
effective after the expiry of ninety days from the date of receipt of
notice by the Nazim/Chairman Arbitration Council in view of S.7(3).
PETITION PARTLY ALLOWED.
PLD 2004 Lahore 588.Nasrullah V/S District Judge Mianwali
S.5 West Pakistan Family Courts Act 1964 & Schedule. Suit for
recovery of value of dowry articles and compensation for divorce. Suit
for recovery of compensation for divorce filed by wife was resisted by
husband on ground that Family Court had no jurisdiction to grant that
relief. Husband had claimed that he had divorced the lady because of her
bad character. Evidence on record had shown that husband had made false
accusation against the lady as he had no evidence to offer for the
same. No particulars were given as to how he had accused the lady to be
of a bad character. Divorce, in circumstances was pronounced by husband
wtihout giving any reason against the lady. Schedule appended to West
Pakistan Family Courts Act was amended and item No.9 was added to the
effect "Personal property and belonging of a wife" which by all means
vested the lady with a right to bring an action against the husband to
claim compensation for divorce pronounced upon her without any
justification. Husband became indebted to the lady in the said amount
and moment said condition became operative. Even if such debt was
conditional or contingent, would fall within the meaning of actionable
claim. Claim of the lady to said amount accruing to her upon an
unjustified divorce, by all means was a property and fell within item 9
of Schedule read with S.5 of West Pakistan Family Act, 1964. Appellate
court, in circumstances had not acted without lawful authority while
decreeing said claim of respondent. PETITION DISMISSED.
PLD 2006 SC 457.Mst. Farah Naz V/S Judge Family Court Sahiwal
S.5 Family Courts Act, 1964. Plea of oral divorce. Validity. Husband
was required to send notice of divorce to Arbitration Council under
Muslim Family Laws Ordinance, 1961 and also to send copy of such notice
to wife by registered post. No such proceedings having been ever
conducted, oral allegation of Talaq would neither be effective nor valid
and binding on wife, who was legally entitled to past maintenance.
PLJ 2008 Sh.C.(AJK) 55. Bilal Hamza Abbasi V/S Wazir Muhammad & another
Specific mode for dissolution of marriage --- Divorce pronounced on
telephonic call. Islam does not prescribe any specific mode for
dissolution of marriage. It is an overt act on the part of husband which
could indicate a clear intention to annul the marriage to operate as a
divorce. No particular form of words is prescribed for affecting a
talaq. If the words of Talaq are clear express and very well understood
as implying divorce, no proof of intention is required. It is also not
necessary that divorce should be pronounced in the presence of wife or
even addressed to her. Witness for the respondent told him that
appellant tried to hand over the divorce deed to him but he refused to
receive the same. Held: Appellant had pronounced talaq through
telephonic call by producing cogent, sufficient and reliable evidence.
No any non-reading or misreading of the evidence on the part of Family
Court. APPEAL DISMISSED.
2009 MLD 1478. Ambreen Afshan V/S Mrs. Idrees Qazu (Lahore)
S.7 Muslim Family Laws Ord. 1961. Divorce--Effectiveness---Husband
administered the divorce and notified the same to Chairman of
Arbitration/Union Council whereupon certain proceedings were taken and
ultimately a certificate for the effectiveness of divorce was issued
through the impugned order. Wife was well aware of the fact that husband
had pronounced divorce to her for which consequential proceedings
before the Arbitration/Union Council had also been taken. Father of the
wife had been pursuing the matter before Arbitration Council. Case of
the wife who had challenged effectiveness of the divorce was that the
submission of divorce deed with a notice before the Arbitration Council
could not ipso facto, operate and result into the dissolution of
marriage. In the present case it could not be disputed that the period
much beyond 90 days had expired from the date of notice of the divorce
when impugned certificate of its effectiveness was issued, in the
circumstances, especially keeping in view all the relevant facts of
service of notice on the Chairman Union Council, the initiation of the
proceedings by the Arbitration Council, the repeated appearance of
father of the wife who was holding a power of attorney on her behalf in
those proceedings and actual knowledge of the wife about the pendency
and fact of those proceedings, divorce and its pronouncement had become
effective. Failure to send a notice to the Chairman of the Arbitration
Council would not render the divorce in-effective in Shariah. Effect of
pronouncement of divorce in Shariah would not justify interference with
impugned order nor would warrant exercise of discretion in favor of the
petitioner/wife under Art.199 of the Constitution.
