Mst. MARYAM BANO vs HUSSAIN ALI AND ANOTHER

1. ' The petitioner has challenged the order passed by the Civil Judge, Karachi under section 7 of the Muslim Family Laws Ordinance, 1961. The petitioner and 'respondent No, 1 are Muslims belonging to Shias Asna Ashri Sect and had married at Karachi on 22-9-1971. From the wedlock a daughter was born in the year 1973. The petitioner developed some spinal disorder in 1975 and the respondent No, I sent her to her parents who incurred all expenses for the treatment. Since then the petitioner remained with her parents but the respondent No, 1 kept the daughter with him. By a divorce deed dated 17-8-1980 the respondent No, 1 divorced the petitioner. This deed also contained a clause that photo copy of the divorce deed with a notice of divorce has been sent to the concerned Union Committee for its confirmation. It seems that on the basis of this notice the respondent No, 2 started confirmation proceeding under section 7 of the Muslim Family Laws Ordinance. The petitioner filed objections that the divorce was not valid mainly on the ground that it was not pronounced in the manner as provided and recognized by Shia Law, therefore, the above divorce was of no legal effect and the respondent No, 2 had no jurisdiction in the matter. The respondent No, 2 by the impugned order observed that under the Muslim Personal Law or the Muslim Family Law Ordinance no mode of pronouncing Talaq has been prescribed and a Muslim can divorce orally or in writing. It was further observed that Talaq should be in accordance with the Ordinance which applies to all Muslim citizens whether Sunni or Shia. The respondent No, 2 further held that as the Chairman is only to bring reconciliation between the parties and as it has failed and period of 90 days has expired the divorce has become effective. It is an admitted position that the petitioner and respondent No, 1 belong to Asna Ashri Shias Sect. It has also not been denied that the divorce was pronounced by respondent No, 1 through a divorce deed witnessed by two witnesses. Mr. Hamza Ali, the learned counsel has contended that such pronouncement of divorce by a Shia vluslim is not valid. The learned counsel has referred to Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yousuf (1) and relied on the following observation :- ' The alleged Talaq could at best be described at Talaq Bidat, which is not recognised as valid by Shia Law. (See Baillie's Digest of Muhammadan Law, Part II, p. 118, Tyabji's Muhammadan Law, Third Edn., Ss. 136142, Mulla's Muhammadan Law, p. 662, Fifteenth Edition, Amir Ali's Muhammadan Law, Fourth Edition, Vol. II. p. 533). These text-books writers, moreover, are unanimous in stating that according to Shia Doctors, the Talaq must be orally pronounced by the husband, in the presence of two witnesses and the wife, in a set form of Arabic words. A written divorce is not recognized, except in certain circumstances which do not exist in the present case. The learned trial Judge took the view that Exh. D 1, even if it was executed by the complainant, was not effective in law to separate the two spouses because of these provisions of the Shia Fiqh. The Appellate Bench of the High Court regarded the provisions of the Shia Fiqh with regard to the presence of witnesses and the necessity of an oral pronouncement of divorce, as merely rules of evidence which could be disregarded. The law being, however, laid down in categorical terms, it is open to question whether the view taken by the Appellate Bench can be sustained. The learned Judges do not appear to have adverted to the point that the alleged Talaq was in the heretical form (Talaqul Bidat) which the Shia dispensation of Islamic Law does not sanction."

2. ' Further reference has been made by the learned counsel, to The State v. Syedah Salma Begum and another (2), where on a reference whether under Shia Law Talaq which was not communicated in a prescribed from and manner was valid it was held that such Talaq was not valid. On the basis of these authorities it seems that under Shia Law a husband can divorce his wife by pronouncing Talaq in her presence in Arabic in a prescribed manner. Amir Ali in his book Muhammadan Law, Vol. II, Seventh Edition has stated Shia doctrine of Talaq as follows :- "They do not allow a Talaq to be given in writing nor in any language other than Arabic when there is ability to pronounce the word necessary for a valid repudiation . . . . Even an absent husband cannot effect a valid Talaq in writing. He must pronounce the words in the presence of the witnesses, and the fact of his doing so may be recorded in writing, which may be forwarded to the wife or it may be intimated to her otherwise."

3. ' In this regard reference is made to a Saksena's "Muslim Law as administered in British India" who has commented as follows :- "Under Shia Law, a Talaq is of no effect unless it is pronounced :

(1) Stictly in accordance with Sunna.

(1) PLD 1963 SC 51 (2) PLD 1965 Kar. 185

(2) in Arabic terms.

(3) in the presence of at least two adult male witnesses."

4. This follows that Talaq pronounced by respondent No, 1 was not valid as it did not comply with the legal requirements prescribed by Shia Law. If a Shia is unable to pronounce Talaq in presence of his wife in the prescribed manner then it can be pronounced in presence of two male witnesses and communicated to her in writing. There is nothing on record to show that the respondent No, 1 was incapable of pronouncement in the prescribed form before his wife, or that Talaq was at all pronounced in the prescribed form and manner before the witnesses.

5. Mr. Aftab Ahmed Shaikh, the learned counsel for the respondent has contended that the respondent No, 1 as ex officio Chairman has confirmed the divorce under section 7 (1) of expiry of 90 days after service of notice a the parties had failed to conciliate. The learned counsel has contended that the respondent No, 2 had nothing to do and it is merely a mechanical process after service of notice which takes its course automatically. Section 7 contemplates that after divorce has been pronounced a notice shall be given to the wife with a copy to the Chairman Union Committee and such Talaq shall be effective after expiry of 90 days of the service of notice under section 7 (1) of the Ordinance. The pre-condition for the applicability of section 7 is that there should be a pronouncement of Talaq. It is only after a Talaq has, been pronounced that machinery under section can be put in motion. The Talaq should not be an invalid Talaq. The respondent No, 2 has taken the view that since notice of Talaq has been given, section 7 becomes operative. The learned counsel for the respondent No, 1 further argued that it is not within the jurisdiction of the respondent No, 2 to determine the validity of the Talaq. A valid Talaq is a pre-condition for exercise of jurisdiction under section 7(1) or initiating proceedings under it. Before passing any order it has to be prima facie ascertained whether Talaq is valid or not. If on the face of it, it is invalid, then in that event the Chairman should not issue a certificate. Reference has been made to PLD 1976 Kar.

416. The observations made in that case will not apply to the present case as it is not clear that the parties were Shia Muslims. As Talaq was not validly pronounced by the respondent No, 1 the entire proceedings under section 7 and the D order passed by respondent No, 2 are without lawful authority and without jurisdiction. In the result the order passed by respondent No, 2 is declared to be without lawful authority and of no binding effect. In the circumstances of the case there will be no order as to costs.