MUHAMMAD SALAHUDDIN KHAN vs MUHAMMAD NAZIR SIDDIQI AND OTHERS

ORDER

1. ' NASIM HASAN SHAH, J.-The petitioner was married to Mst. Tahira Siddiqui and started living with her in Libya, where she was working as an Assistant Matron in the Central Hospital, Tripoli.

2. ' On 30th March, 1975, the petitioner sent to her a deed of divorce which reads as follows :- "As my first wife (who is also my first cousin) and you, Tahira Siddiqi, could not pull on together, I am left with no choice but to divorce you and do hereby pronounce upon you - TALAQ - TALAQTALAQ.

3. ' In view of your getting me a good job in Libya and other financial assistance, I should not have done this, but as I have to choose one of the two wives, I cannot leave my first cousin (i. e. My first wife).

4. ' Anyhow, be sure, that I will fulfil all my financial commitments with you regarding dower, etc. (Sd.) M. Salahuddin Khan."

5. ' Shortly, thereafter, Mst. Tahira was taken ill and hospitalised on 2nd April, 1975. Mere she was given an overdose of some sleeping pills on 5th April, 1975 ;whereafter she fell into a coma and lost consciousness. Since the petitioner had severed all relations with her he took absolutely no interest in her ailment or in her fate. Her family was notified about her condition at Lahore and a brother of the petitioner reached Libya to see her. While she was still in a state of coma he managed to bring her back to Lahore with great difficulty. She did not, however, recover despite being admitted to the United Christian Hospital. She ultimately died in Lahore sometimes in October, 1975. The father, mother, brother' and sisters of the deceased Tahira Siddiqi, respondents here in, applied for issuance of a succession certificate in their favour. The petitioner intervened in these proceedings claiming that he was entitled to one-half share of her estate, as he was her husband and that she had died childless.

6. ' Although the petitioner denied that the signatures on the deed of divorce, produced before the Court by the respondents, were his signatures but the Courts below have found that the said deed was, indeed, a genuine document. However, it is an admitted position that a copy of the divorce deed was avert sent to the Chairman of the relevant Union Committee under section 7 of the Muslim Family Laws Ordinance, 1961. The learned Additional District Judge, therefore, held "that under section 7 of the said Ordinance, the divorce would have been effective only after expiry of 90 days from the date of its notice to the Chairman. Unless and until the Talaq was sent to the Chairman concerned, it has not to take effect and by the mere fact of not sending the Talaq to the Chairman the necessary inplication would be that the husband did not want to divorce the wife and did not want the Talaq to be effective. Therefore, in spite of the fact that the Talaq has been proved to be genuine and under the signatures of the appellant, it having not been sent to the Chairman, section 7 of the Muslims Family Laws Ordinance operates with full force and this Talaq would not be effective with the result that the appellant continued to be the husband of the deceased and under these circumstances he is entitled to get his share in the estate left by the deceased".

7. ' The High Court, however, on the revision petition filed by the respondents was of the view that "once execution of the divorce deed has been proved `Talaq' became effective after the expiry of ninety days even if the notice under section 7 of the Muslim Family Laws Ordinance VIII of 1961 was not served upon the Chairman concerned". Reliance for this view was placed on Muhammad .?

8. Afique v. Ahmad Yar (1). In this case, it was, inter alia, observed that "it is, thus, clear that the absence of notice would obviously be a violation of section 7 of Family Laws Ordinance only, the crime punishable under the Ordinance and that by no stretch of imagination Talaq, if pronounced, can be claimed to be ineffective".

9. ' This view taken by the High Court is assailed by this petition for leave to appeal.

10. We observe that in the judgment relied upon by the High Court, namely, Muhammad Rafiq v.

11. Ahmed Yar the High Court unfortunately overlooked two pronouncements of this Court, dealing with the same question, namely, Ali Nawaz Garaezi v. Muhammad Yusuf (2) and Abdul Mannan v.

12. Safuran Nessa (3). In the first mentioned case it was observed that in view of the provisions of section 7(3) of the Ordinance a Talaq would become effective only after notice of Talaq is given to the Chairman and the period of three months provided for bringing out a reconciliation between the parties has expired. Where the husband does not give a notice of Talaq to the Chairman, it can be deemed that he has revoked the Talaq. While in the second case, namely, Abdul Mannan v.

13. Safuran Nessa the view taken by this Court appears with great clarity from the following extract therefrom:- "The learned counsel for the petitioner concedes that no notice of the alleged divorce was given to the Chairman as required by section 7(1) of the Muslim Family Laws Ordinance. That being so the alleged divorce, in view of the express provision of subsection (3) of section 7 of the said Ordinance, is yet to become effective."

14. ' It is manifest, therefore, that the view expressed by the Lahore High Court in Rafiq's case, which view was relied upon in his impugned judgment by the learned Judge while accepting the revision petition filed by the respondents, cannot be supported and is, in fact, erroneous.

15. ' Be that as it may we are not inclined to exercise our discretionary {{FOOT NOTE}}

(1) PLD 1982 Lab. 825 (2) PLD 1963 SC 51

(3) 1970 SCMR 845 {{FOOT NOTE}} ' jurisdiction of granting leave to appeal to this Court to the petitioner in view of the peculiar facts and circumstances of this case.