' SARDAR MUHAMMAD RAZA KHAN, J.---The aforesaid petitions and appeal have arisen in the background that Lieutenant Iffat Kazmi was married to Shuja Akbar Shah on 7-5-1996, admittedly, according to `ShiaFiqh'. After marriage the lady joined the husband in U.K. On 18-12-1996 where they lived together for more or less 19 months when the wife returned to Pakistan on 16-7-1998. The husband allegedly on 10-7-2000 sent a written divorce which was received by the wife on 10-8- 2000. The divorce was declared effective by Chairman Arbitration Council with effect from 6-2- 2001, considering the period of 'We. The lady on 11-3-2004 filed a writ petition against such order of the Arbitration Council, which was dismissed by a learned Single Judge of Lahore High Court vide judgment dated 28-10-2004. Civil Petition No,2950 of 2004 is for seeking leave to appeal against such order.
2. Lieutenant Iffat Kazmi also filed a suit for recovery of maintenance allowance before Chairman Arbitration Council on the ground that the divorce deed was bogus and so she was entitled to maintenance from 16-7-1998 onwards , at the rate of Rs,25,000 per month. This suit was decreed on 11-7-2002 for maintenance at the rate of Rs,25,000 per month from July, 1998 to 19th June, 2001. The decree, in appeal was modified by the District Officer Revenue, Sialkot from Rs,25,000 to Rs,15,00Q per month as maintenance, vide judgment dated 31-3-2003. Shuja Akbar Shah, the husband filed a writ petition before the High Court whereby the amount of maintenance was reduced to Rs,10,000 per month. This judgment dated 24-2-2004 is challenged by Shuja Akbar Shah in Civil Appeal No,402 of 2004 and also by Lieutenant Iffat Kazmi in Civil Petition No,1397 of 2004. All the matters between the spouses, involving common question of law and fact, shall be decided together.
3. All the forums below, in the'light of evidence produced by the parties, have concluded that Ms. Iffat Kazmi stands divorced by her husband and the same divorce is declared to have become effective from 19-6-2001. The factual side cannot be disputed but Ms. Iffat Kazmi while arguing her own case has come up with the plea that the disputed divorce having been sent in writing from U.K., was not valid because under Shia Law a divorce must be pronounced orally, using specific words, in the presence of the wife as well as two witnesses. She placed reliance on a judgment of this Court in Ali Nawaz Gardezi's case (PLD 1963 SC 51).
4. No doubt, in the precedent case, this Court had held that under Shia Law `Talaq' must be orally pronounced in the presence of two witnesses and the wife in the set form of Arabic words yet it was observed at citation T page 72 that a written divorce can be recognized in certain circumstances.
In the instant`, case, the strong circumstance was that the husband resided in U.K. And thus could not be present in Pakistan for pronouncement of 'Talaq'. An elaborate discussion is made on the subject by Sindh High Court in case of Mirza Qamar Raza (PLD 1988 Kar. 169). Besides reference to numerous scholars of 'Shia Fiqh' reliance was placed on Taudi al Masail by Roohullah Khumani.
Similar view was taken in Mst. Maryam Bano's case (1984 CLC 1961) where the exceptional conditions in pronouncing `Talaq' in absence of wife as mentioned in Ali Nawaz Gardezi's case (supra) at page 72 were recognized. The net conclusion is that under exceptional circumstances that might prevail differently in different cases, a `Talaq' pronounced in the absence of wife and conveyed to her in writing is a valid `Talaq' under Shia Law. That exceptional circumstance, in the instant case, is reasonably proved.
5. Coming to the question of maintenance, it is important to notice as to what is the financial status of the husband as well as the wife. In the instant case, the wife is a gazetted officer in the Armed Forces while the husband is a doctor serving abroad in the U.K. Their status is obvious.
6. In such background the original forum had decreed a sum of Rs,25,000 per month as maintenance but the same was altered to Rs,15,000 per month by the appellate forum. We could not be satisfied as to how the learned High Court while exercising Constitutional jurisdiction came to a different conclusion and, under what circumstances the said amount was further reduced to Rs,10,000 per month. In the circumstances, we believe that the amount fixed by the appellate forum was in accordance with the status of the parties and the High Court had no reason, nor was it given, to reduce such amount.
7. Consequently, while partially accepting C.P.L.A. No,1397 of 2004, after conversion into appeal and while dismissing Civil Appeal No,402 of 2004, a sum of Rs,15,000 per month, as allowed by the appellate forum is maintained and that fixed by the High Court is set aside. Ms. Iffat Kazmi shall be entitled to the aforesaid amount with effect from 28-7-1998 till 19-6-2001.
8. So far as C.P.L.A. No,2950 of 2004 is concerned, leave to appeal is refused on the ground that her writ petition was rightly dismissed by the High Court on ground of laches.