' SHAIIID MUBEEN, J.--- Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged the vires of judgment and decree dated 01.07.2014 passed by the learned Additional District Judge, Rawalpindi and judgment and decree dated 22.03.2014 passed by the learned Judge Family Court, Kahuta and prayed that the said impugned judgments and decrees be set aside.
2. Briefly stated the facts of the case are that petitioner No.1, Mst. Naveeda Kausar (wife) instituted a suit for the recovery of maintenance, dowry articles of Rs.23,000/- as well as Rs.100,000/-. In her suit, she asserted that on 12.03.2013, respondent No.1, Muazzam Khan, orally pronounced divorce thrice at the spot, which has become effective. Petitioner No.2, Abdul Hadi, instituted a suit through his real mother/petitioner No.1 for recovery of maintenance as well as delivery expenses. On the other hand, defendant filed written statement with the contention that on 25.9.2013 he in angry mood pronounced divorce orally but revoked later on and the marriage is still intact. Out of the divergent pleadings of the parties following issues were framed:- ' ISSUES
1. Whether the plaintiffs are entitled for recovery of maintenance, if so, at what rate and for what period? OPP
2. Whether the plaintiff is entitled for recovery of dowry articles as per list annexed with the plaint?
OPP
3. Whether the plaintiff is entitled for recovery of Rs.23,000/- which were barrowed by the defendant? OPP
4. Whether the plaintiff is entitled for recovery of Rs.100,000/- as per column No.16 of Nikah Nama?
OPP
5. Relief.
3. The learned Judge Family Court, Kahuta vide judgment and decree dated 22.03.2014 partially accepted the suit of petitioner No.1 whereas suit to the extent of recovery of Rs.23,000/- as well as Rs.100,000/- was dismissed. Feeling aggrieved, the petitioners have assailed the judgment and decree dated 22.03.2014 passed by the learned Judge Family Court, Kahuta by filing appeal before learned Additional District Judge, Rawalpindi/respondent No.2. Learned Additional District Judge Rawalpindi/Respondent No.2 vide its judgment and decree dated 01.07.2014 enhanced the quantum of maintenance to the extent of petitioner No.2 from Rs.2000/- to Rs 2500/- per month and claim of petitioner No.1 for the recovery of Rs.23,000/- and Rs.100,000/- was not accepted.
Feeling aggrieved from the said judgments and decrees passed by the learned courts below, the petitioners have instituted the instant writ petition.
4. The petitioner No.1 asserted in her plaint that she was verbally divorced by respondent No.1 on 12.03.2013. In the written statement, the respondent No.1 asserted that on 12.07.2013 he divorced the petitioner No.1 when he was ailing and in a condition of an irritated/ annoyed mood and in this regard he executed an affidavit. The petitioner No.1 asserted the fact of oral divorce dated 12.03.2013 by the respondent No.1 in her affidavit which is produced as Ex-P-1. The respondent No.1 also admitted the factum of oral divorce to the petitioner. He has produced a document dated 20.04.2013 whereby he sought a Fatwa from Quran Academy. From bare perusal of said document, it is established that he divorced the petitioner No.1 in an irritated/annoyed mood for three times.
When the fact of oral divorce has been admitted by the respondent No.1 as stated above then under the law, it is a valid divorce. In para No.310 of "Principles of Mohamedan Law" by D.F. Mullas which is reproduced as under:- "A talak may be effected (1) orally (by spoken words) or (2) by written document called a Talaknama".
' In sub-para (3) of para 311 of said book which is reproduced as under:- "Talak-ul-bidaat or talak-i-badai --- This consist of: (i). Three pronouncements made during a single tuhr either in one sentence, e.g., "I divorce thee thrice --- or in separate sentences e.g., "I divorce thee, I divorce thee, I divorce three" (x) or, (ii). a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage (y), e.g., "I divorce thee irrevocably."
5. In sub-para No.3 of para No.312, of said book which is as under:- "A talak in the badai mode becomes irrevocable immediately it is pronounced, irrespective of the iddat. As the talak becomes irrevocable at once, it is called talak-i-bain, that is, irrevocable talak.
6. From the bare perusal of above referred paras, it is crystal clear that oral divorce given thrice becomes irrevocable and become effective the moment same was pronounced. It is argued by the learned counsel for respondent No.1 that oral Talak is not effective as no notice was given by him and the concerned Union Council has not issued a certificate of effectiveness of Talak. This argument is fully answered by august Supreme Court of Pakistan in a case reported as "Ghulam Shabir Shah v. The State" (1983 SCMR 942) held as under:- "We notice that the learned counsel for the petitioner has taken it as a ground for the first time that the divorce pronounced orally in October 1979 or in writing in January, 1980 was such as to fall outside the provisions of sections 7 and 8 of the Family Laws Ordinance. Not even the divorce document has been placed on record to make out this ground. What we find is that the two courts dealing with the question have recorded a finding that the divorce was pronounced by the petitioner on 17th of January, 1980, that it was a divorce as envisaged under section 7 of the Muslim Family Laws Ordinance and it required notice and did not become effective till 90 days expired after such notice. Reading sections 7 and 8 together we find no such distinction as is sought to be made out by the learned counsel for the petitioner."
8. In case reported as 'Muhammad Sarwar and another v. The State" (PLD 1988 Federal Shariat Court 42) it was held as under:- "We have gone through the judgment in Mirza Qamar Raza and appreciate that the effectiveness of the Talaq' cannot be subjected to the service of notice on the Chairman. The observations of the learned Judge that the reconciliation efforts ordained in Quran pertain to a period before the pronouncement of 'Talaq' or that an official or other person cannot be designated in a man-made law to enforce and oversee the reconciliation proceedings in obedience to the dictates of Allah, are mere abiter dicta as these questions never fell to be decided."
9. In a case reported as "Allah Dad v. Mukhtar and another" (1992 SCMR 1273) it was held as under:- "The question of the notice of Talaq to the Chairman under section 7 of the Family Laws Ordinance was also decided by all these Courts in favour of the respondents and it was held that even in the absence of such a notice, the Talaq has become effective. Reliance, in this respect, was placed on Article 2-A of the Constitution, as interpreted in the case of Mirza Qamar Raza v. Mst. Tahira Begum and others PLD 1988 Kar. 169."
10. In a case reported as "Fida Hussain v. Mst. Najma and another" (PLD 2000 Quetta 46) relying upon "Mirza Qamar Raza v. Mst. Tahira Begum and others", (PLD 1988 Kar. 169) and (PLD 1988 FSC 42), it was held that:- "In view of above position oral Talaq would be effective and binding in spite of its non-compliance with mandatory requirement of section 7 of the Muslim Family Laws Ordinance, 1961."
11. In another case reported as "Mst. Batool Bibi v. Muhammad Hayat and another" (1995 CLC 724) it is held that:- "The objection of learned counsel for respondent No.1 that oral Talaq even if proved is invalid since no notice under section 7 of Muslim Family Laws Ordinance, 1961 was given by respondent No.1 to Chairman, Union Council or to the petitioner is not sustainable. It has been held in case titled Allah Dad v. Mukhtar and another (1992, SCMR 1273) that failure to send notice to Chairman, Union Council does not render the divorce ineffective in Shariah. The same has been held in another case titled Mst. Zahida Shaheen and another v. The State and another (1994 SCMR 2098).
Respondent No.1 had assailed the genuineness of the Nikahnama, however, he has not been able to lead any evidence to the effect that the Nikahnama is forged. There is a rebuttable presumption regarding the validity of public documents. Since this presumption has gone unrebutted, the Nikahnama stands as a genuine document and it is stated in the Nikahnama that the petitioner has entered into Nikah after being divorced. Respondent No.2 has not properly appraised the evidence regarding pronouncement of oral Talaq nor has he taken into consideration the fact that the genuineness of Nikahnama of the petitioner with Lal has gone unchallenged. Respondent No.2 has also not taken into consideration the fact that the petitioner was pregnant during the proceedings for jactitation of marriage. He passed the impugned order setting aside the judgment of the learned Judge, Family Court and consequence of his order would be that child born to the petitioner would be considered illegitimate. In such a situation, the law leans in favour of validity of marriage and legitimacy of a child who is innocent. This consideration was totally disregarded by respondent No.2. He also failed to take into consideration the fact that in pursuance of his judgment, the petitioner and Lal would be convicted and sentenced in the case pending against them under the Zina Ordinance.
' Reliance is also placed upon the cases reported as "Ms. Roheela Yasmin v. Ms. Neelofar Hassan and 6 others" (2014 YLR 2315), "Mst. Zarina Begum v. Major Aziz ul Haq and 3 others. "(2006 CLC 1525) and "Hamid Hameed Waris v. Mst. Tehseen" (PLD 2002 Karachi 518).
12. Relying upon above judgments, it can safely be concluded that oral talak is as good as Talaq in writing and it was duty of the husband to send notice to Chairman, Union Council concerned relating to divorce.
13. Although no issue was framed in this regard by the learned Judge Family Court, Kahuta whether the petitioner No.1 was orally divorced by the respondent No.1, however, the parties were conscious about the issue which was asserted by the petitioner No.1 in her plaint and admitted in written statement by respondent No.1. The parties C adduced evidence, therefore, the non framing of issue on said point is not fatal. Consequently, it is held that the petitioner No.1 was divorced by respondent No.
1. The findings qua the divorce by the learned courts below are contrary to the record. It is established law that this Court can grant relief flowing from pleadings and evidence of parties, therefore, this suit is also treated a suit for dissolution of marriage.
13. As far as the claim of petitioner No.1 with regard to recovery of Rs.100,000/- on the basis of condition No.16 in the nikahnama is concerned. Reliance is placed on a celebrated judgment of Hon'ble Supreme Court of Pakistan reported as "Syed Mukhtar Hussain Shah v. Mst. Saba Iintiaz and others" (PLD 2011 Supreme Court, 260), the relevant portion is reproduced as under:- "The definition of "actionable claim" in the TPA is strictly and exclusively relatable to the operative provisions of Chapter VIII of that Act, which by virtue of Sections 130 to 137 thereof inter alia, prescribes the requirements and the broad mechanism for the transfer and the assignment of the "actionable claims" so defined in section 3. It has no application beyond the Act even if any general concept emerges on account of the expression, it is restricted to the law it forms part and cannot be stretched to apply to any other law of the land, including the Family Courts Act, 1964, thus the interpretation of entry No.9 ibid as provided by Muhammad Akram v. Mst. Hajra Bibi and 2 others (supra) is the correct explication of law, which is hereby approved. However, adding thereto, it may be held that if the ratio of Nasrullah dictum (supra) which is entirely and solely founded on the noted concept/definition is taken to be correct, than a suit for Specific Performance, declaratory suits of any nature, or any other civil legislation between a wife and husband shall be amenable to the special jurisdiction of the family Court, which is not intent of the law. Because according to the literal approach of reading a statute, the statue has to be read literally by giving the words used therein, ordinary, natural and grammatical meaning. Besides, the addition and subtraction of a word in a statute is reading in and reading down may be pressed into service in certain cases; thus when in Entry No.9 'actionable claim' has not been provided by the legislature intent and the rules of interpretation to add this express to the clause/entry."
15. The judgment of Apex Court approves the judgment of High Court in case title "Muhammad Akram v. Mst. Hajra Bibi and 2 others" (PLD 2007 Lahore 515), relevant portion of which is reproduced as under: - "Heard. As regards the question, whether the suit is competent before the Family Court, it is the case of respondent No.1, and also held by the learned Additional District Judge that the matter falls within the Entry No.9 of the Schedule to section 5, i.e. "personal property and belonging of the wife". I feel amazed to note as to how the amount of Rs.100,000/- allegedly payable by the petitioner on account of the divorce or bad relations between the parties, is the personal property or belonging of respondent No.1, so as to bring the case within the jurisdiction of the Family Court.
Such personal property or belonging referred to it Entry No.9, in my considered view, is a residuary provision, which enables the wife to recover through the process of the Family Courts Act, 1964, whatever property she has acquired during the subsistence of the marriage, which is not the part of her dowry, through her own independent means or even through the means provided by the husband, such as her clothes, ornaments and items of personal use and nature, this may also include anything which has been gifted to the wife by the husband or any of his or her relatives or the friends; such property and belonging may be the one acquired by the wife out of the money given to her by the husband, her saving from household allowance, or pocket money, from the money provided by her parents and relatives. But definitely the aforesaid entry does not cover any amount which is not yet the property of the wife and she only has a claim to recover from the husband on the basis of any special condition incorporated in the Nikahnama. I am not convinced by the argument that the amount in question is covered under the rules of actionable claims as envisaged by section 130 of the Transfer of Property Act, 1882. The term "actionable claim" in general means, a claim for which an action will lie, furnishing a legal ground for an action and according to section 3 of the Transfer of Property Act, a claim towards a debt. On account of both the means such claim cannot be equated as a "personal property and belonging of the wife."
Resultantly, in my considered view, the family Court has no jurisdiction in the matter and the suit in this behalf before the said Court was not competent."
16. The other judgments on the point includes "Ghulam Muhammad v. Parveen Akhtar and others"
(2012 CLC 321), "Shahida Parveen v. D Nijabat Ali and 2 others" (2009 MLD 671) and Mushtaq Ahmad v. District Judge, Vehari and 2 others" (2013 CLC 928).
17. The claim of the petitioner No.1 on the basis of column No.16 qua recovery of Rs.100,000/- in case of divorce cannot be granted to her by a learned Judge Family Court on the strength of the above noted judgment, however, she may file appropriate remedy before court of competent jurisdiction.
18. As far as decree of restitution of conjugal rights is concerned, it has become redundant as this Court has already held that petitioner No.1 has been divorced by the respondent No.1 on 12.03.2013.
Even otherwise, it has been held in "Shamshoo v. Mst. Tahira and another" (1983 CLC 133) that "a wife cannot be compelled to live with her husband even if he obtains decree for restitution of conjugal rights". It has also been held in a case reported as "Rukhsana Tabassm v. Judge, Family Court and 2 others" (1999 CLC 878) that "a decree, for E restitution of conjugal rights is not absolute decree and cannot be enforced by Courts of justice." The said decree is a good answer to a suit for maintenance filed by wife.
19. In the above facts and circumstances of case, the decree of restitution of conjugal rights of respondent No.1 has become ineffective. However, the impugned judgments and decrees are in accordance with the evidence available on the record with regard to rest of the issues decided by the courts below.
20. For what has been discussed above, this writ petition is partially accepted leaving the parties to bear their own cost.