MUHAMMAD IJAZ KHAN, J. Through the instant civil revision petition, petitioner namely Mst.
Musarat has challenged the order and judgment of learned Additional District Judge III/Izafi Zila Qazi Swat dated 13.11.2020 whereby the appeal of the present petitioner was dismissed and thereby maintained the order and judgment of the learned Guardian Judge/Senior Civil Judge Swat dated 24.01.2020 who vide the same had accepted the application of respondents No. 1 to 10 for the grant of succession certificate while denying shares of the present petitioner in the legacy of her deceased husband namely Shah Bakht Rawan on the ground of being a divorced widow.
2. Precisely the facts of the case are that the respondents No. 1 to 10 (who are the mother and children of late Shah Bakht Rawan) submitted an application under section 372 of The Succession Act, 1925 for issuance of the succession certificate to the effect that the deceased namely Shah Bakht Rawan was the son of respondent No. 1 and father of rest of the respondents No. 2 to 10 and as such they have approached the learned Guardian Judge/Senior Civil Judge Swat for the issuance of desired succession certificate with respect to their respective shares in the amount lying in the account of their deceased son/father namely Shah Bakht Rawan. It was specifically pleaded in the application that since Mst. Musarat Bibi the second wife of the deceased had divorced by the deceased in his lifetime vide deed dated 27.08.2018, therefore, she is not the legal heir of the deceased. Since the present petitioner namely Mst. Musarat (who is the widow of the deceased Shah Bakht Rawan) was not impleaded as a party in the aforesaid application, therefore, she submitted an application on 15.12.2018 for her impleadment on the ground that at the time of opening of the succession of the deceased namely Shah Bakht Rawan she was her widow, which application was contested by the respondents No. 1 to 10 by filing their written reply whereby they denied the factum of the petitioner being widow of the deceased as days before the death of her husband (Shah Bakht Rawan) had already divorced her, therefore, in view of the controversies between the parties the learned trial Court framed as many as three issues including issue No. 2 which was the epitome of controversy between the parties. Thereafter, respondent No. 1 namely Aziz Ahmad appeared as PW-1, Fazal Mahbood as PW-2, Muhammad Farooq as PW-3, Muhammad Haroon as PW-4 and Shujahat Ali as PW-5, Ubaid Ullah, scribe of divorce deed appeared as PW-5, Haider Ali Notary Public as PW-6 and Gul Nazar, postman as PW-7 and Bismillah Jan, In-charge Record Room as PW 8. In rebuttal, the present petitioner herself appeared as DW-1. Thereafter, the learned Guardian Judge Swat vide one of the impugned order and judgment dated 24.01.2020 has held applicants/respondents No. 2 to 11 along with respondents No. 2 & 3 as entitled for the issuance of succession certificate, however, the present petitioner while discussing issue No. 2 was adjudged as not legally entitled to the legacy of the deceased namely Shah Bakht Rawan in respect of the amount mentioned in the heading of the succession certificate application, whereas applicants/respondents No. 2 to 11 along with respondents No. 2 & 3 were held as legal heirs of Shah Bakht Rawan.
3. The petitioner felt herself aggrieved of the aforesaid order and judgment preferred an appeal to the Court of learned Additional District Judge-IIII/Izafi Zila Qazi Swat, however, the same was also dismissed vide the second impugned order and judgment dated 13.11.2020. Petitioner has now challenged the aforesaid orders and judgments of the two Courts below before this Court through the instant petition.
4. Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.
5. It may be noted that in the present case the alleged 'talaq-e-biddat' was not "oral" but was in a "written form" which was allegedly sent to the petitioner through the process of post office. It is also relevant to mention here that the predecessor of the parties was a patient of paralysis at the time of alleged execution and dispatching of Talaq-Nama and two years before his death. It is also a matter of record and as stated by the respondents in Para No. 3 and 4 of their application for the grant of succession certificate (when by then the petitioner was not even party before the Court) that the petitioner has been divorced by her husband vide deed No. 372 dated 27.08.2018 and that the husband of the petitioner has died on 03.10.2018 i.e. on the 37th day (27.08.2018 to 03.10.2018) of the alleged divorce/ Talaq-Nama, therefore, it is to be seen that as to whether at the time of alleged Talaq the deceased was or not suffering from life threatening disease and as to whether the alleged Talaq was given with the only object just to exclude the petitioner from the legacy after the death of her deceased husband; therefore, in order to answer the aforesaid question we will now refer to the evidence recorded by the parties.
6. It is a matter of record and as transpires from the very contents of the alleged Talaq-Nama that the deceased namely Shah Bakht Rawan was a patient of paralysis for the last two years and this fact has also been disclosed in the alleged Talaq-Nama that the petitioner has been serving the deceased for the last two years, therefore, it can be prima facie established that the disease of the deceased by then has reached to an advance stage and as such he was unable to perform his routine activities and was restricted to home and as such as per the contents of Talaq Nama, most of the times it was nobody else but the petitioner who served him in those days of need, therefore, his disease of paralysis being more than two years old and when most of the times it was the petitioner who served the deceased then it can be established that in-fact he was realizing that he is about to leave this transient world and thus this apprehension of fast approaching death is the sine- qua-none for terming a particular disease as . Such characteristics of has also been recognised under the Islamic Teaching as Dr. Tanzeel-ur-Rehman in his book namely has laid three condition for holding a disease as they are:- Similarly, the deteriorating health of the deceased has also been admitted by PW-1 namely Aziz Ahmad who has stated as under:- Similarly, PW-4 namely Muhamamd Haroon who is one of the marginal witness of the alleged Talaq-Nama has also admitted that:- He has further admitted that:- In view of the above admissions of the witnesses of the respondents it is prima facie established that in-fact due to prolong illness the deceased namely Shah Bakht Rawan was convinced that he is about to leave this transient world and under strong apprehension of a nearer death and it was at this point of time when the alleged Talaq-Nama (which was otherwise denied by the present petitioner) has been shown executed by the deceased, therefore, now this Court will proceed to determine the religious and legal effect of such Talaq-Nama which has allegedly been executed by the deceased during the days of life threatening disease and especially at the last stage of such disease.
7. In order to answer the aforesaid question, it would be relevant to mention here that there are three kinds of Talaq:-
(i) Talaq-e-Ahsan, this consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of Iddat.
(ii) Talaq-e-Hasan, this consists of three pronouncements made during tuhrs, no intercourse taken place during any of the three tuhrs.
(iii) Talaq-e-Biddat or Triple Talaq, this consists 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, divorce thee or,
(ii) a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage, e.g. "I divorce thee irrevocably.
There is no cavil and dispute between the parties that the kinds of Talaq as find mentioned in (i) and (ii) ibid that if the husband dies before the expiration of the Iddat period or if after pronouncement of one Talaq or two and the stage/time of 3rd pronouncement of Talaq has not yet reached then the widow shall be treated as legal heir and will be entitled in the legacy of her husband, however, in the present case the controversy pertains to `talaq-e-biddat' as such Talaq is pronounced at one time and become effective then and there for the purpose of marriage but herein the epitome of the controversy is that in case of `talaq-e-biddar' when the husband is suffering from and he dies before completion of Iddat period then whether the wife would be treated as his her legal heir for the purpose of her entitlement in the legacy of her husband or not? to answer the above controversy multiple factors including view of different schools of thoughts are to be considered which are highlighted as under:-
8. As stated herein above that there is no difference of opinion that in case of Talaq Ahsan, unless the Iddat period has expired and in case of Talaq Hassan, unless the 3rd stage of pronouncement of Talaq has reached, then such Talaq will not be effective unless period of Iddat is not expired, however, the controversy herein is that in case of or widow would be entitled for her share in the legacy of her husband when after the husband dies before the expiration of Iddat period. It may be noted that neither in the Holy Quran there is any Ayat/verse regarding the effect of Talaq which is given by a husband who is on death bed qua the share of widow in the legacy of her husband nor there is any Hadith/ which could be helpful for the instant controversy, however, there are instances of the lives of the companions of the Holy Prophet Hazrat Muhammad peace be upon him and Fatwa(s) which provides answer for the present controversy. Similarly various schools of thoughts have provided a detailed answer to this religious and legal question involved in the present case which are reproduced below.
Some of relevant extracts from authored by the religious scholar Dr. Tanzeel-ur-Rehman are reproduced bellows:- In view of reproduction of the relevant Islamic law on the subject it is established that in case of Talaq Rajia (Talaq Ahsan and Talaq Hassan) given during the days of would have no effect on the right of widow to have share in the legacy of her husband if her husband dies before the completion of Iddat period of the wife. Similarly in case of or which is given on the death bed would also have no effect upon the right of widow in the legacy of her husband if such husband dies before the completion of her Iddat period and as in the present case a written was written on 27.08.2018, therefore, the Iddat period would have completed on 27.11.2018 but much before it, her husband died on 03.10.2018, therefore, in view of the aforesaid exposition of Islamic law on the subject on the date of her husband death (03.10.2018) she was entitled for her Shari share in the legacy of her husband. In the case of "Nazar Muhammad & another v/s Mst. Shahzada Begum & another" reported as PLD 1974 Supreme Court 22, the Hon'ble Apex Court has observed that it is quite clear that Mst. Shahzada Begum was divorced in death-illness. Dr. Zaman has stated in clear terms that the deceased was suffering from paralysis. He examined him on the 5th November 1959, and the deceased died on the 10th November 1959, i.e., to say that the deceased died of his illness before the expiry of iddat of Mst. Shahzada Begum. She is, therefore, entitled to inherit the property of the deceased.
9. It is relevant to mention here that it has been admitted by nobody else but the deceased husband himself in the alleged Talaq-Nama that he has been suffering from paralysis for the last two years and the petitioner has been serving him, which admission on the part of the deceased husband shows that he was quite happy with her, however, even then he allegedly opted to disinherit her for no good reasons which fact is sufficient to establish that the alleged Talaq was aimed just to deprive the petitioner from her share in his legacy. It may be noted that under the teaching of Islam, if the husband is convinced and he is under strong apprehension of leaving this transient world and thus he for no good reason but just to deprive the wife from the legacy give Talaq to her then in case of such Talaq (which is called ) a wife shall be entitled for her share in the legacy of her deceased husband.
10. Another legal aspect of this controversy is that in this case the Talaq was not pronounced face on face as it is the case of respondents that in-fact a Talaq-Nama was written vide deed No. 372 on 27.08.2018 and notice of the same was sent to the Chairman union council as well as to the petitioner, as P.W-I and P.W-2 have admitted in their cross examinations that therefore, it is a case of written Talaq-Nama or oral Talaq reduced into writing, as the case may be, however, such pronouncement of Talaq and its effectiveness and other legal axillary and ancillary consequences are regulated by section 7 of The Muslim Family Laws Ordinance, 1961, the same section being relevant for the present controversy is reproduced below:-
7. Talaq.-- (1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever, contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.
(3) Save as provided in sub-section (5), a talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub- section (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effect until the period mentioned in sub-section [11][(3)] or the pregnancy, whichever be later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.
The aforesaid section of law manifestly speaks that whenever a husband wishes to divorce his wife he shall after pronouncement of such Talaq in any form shall give a notice to the Chairman of the concerned area in writing of his having done so and he shall also supply a copy of such notice to the wife and sub-section (2) of section 7 of the Act stipulates the punishment for violation of the aforesaid requirement, whereas sub-section (3) of section 7 being the most relevant stipulates that such Talaq shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman as it has also been admitted by PW-1 namely Aziz Ahmad that:- Similarly, PW-2 has also stated that:- Additionally, PW- 7 namely Gul Nazar who was a postman was produced and who stated that the registry No. 477 dated 28.08.2018 has been received by the present petitioner on 30.08.2018. In view of the above admissions it can be ascertained that in-fact a notice was given by the deceased namely Shah Bakht Rawan and copy of which was also sent to the petitioner, however, when such written Talaq-cum-notice would be effective for the purpose of Talaq, sub-section (3) of section 7 of The Act of 1961 stipulates that after expiration of ninety days the same will take effect, which in this case would complete on 28.11.2018 or 30.11.2018, as the case may be, and when this fact has also been admitted by nobody else but the respondents themselves that the deceased namely Shah Bakht Rawan died on 03.10.2018 i.e. much before the expiration of ninety days, therefore, the alleged Talaq-Nama even if pronounced has not taken its legal effects by the time when the deceased took his last breath. Under the Islamic Law legacy of a Muslim open the moment when he dies and thus all the legal heirs who are living on the day of his/her death become entitled for their respective shares in his legacy. In view of the above on the day of death of the deceased i.e. on 03.10.2018 the petitioner was the widow of the deceased and as such she could not be deprived of his share in his legacy. In the case of "Mushtaq Ahmad & another v/s Mst. Sat Bharai & 05 others " reported as 1994 SCMR 1720, the Hon'ble Apex Court has held that the case is governed by section 7(3) of the Ordinance, which provides that save as provided in subsection (5) Talak unless revoked earlier expressly or otherwise shall not be effective until the expiration of 90 days from the date on which notice under subsection (1) is delivered to the Chairman. The present case does not fall under subsection (5) which is irrelevant for this controversy. However, in view of subsection (3)
Talak shall not be effective till the expiry of 90 days from the date of service of notice to the Chairman. From the facts narrated above it is clear that Gheba Khan died much before the expiry of 90 days. During this period, if he would have been alive, he would have had the option to revoke the divorce pronounced by him. There is a procedure provided under law under which reconciliation proceedings are initiated and it is only on expiry of 90 days of service of notice that the Talak becomes effective. On the date Gheba Khan died, Talak had not become effective in terms of section 7 of the Ordinance. Therefore, the respondent continued to be his wife. In these circumstances, she was entitled to inherit the property of her husband. Similarly, in the case of "Syed Ali Nawaz Gardezi v/s Lt. Col.Yousaf reported as PLD 1963 Supreme Court 51, the Hon'ble Apex Court has held that we are, therefore, disposed to agree with the learned, trial Judge that on the 2nd of January 1962, when Christa Renate went through a form of marriage with the respondent, she was still the wife of the complainant as the divorce, even if granted by the latter, could not have become effective, without recourse to the provisions of section 7 of the Muslim Family Laws Ordinance, 1961. It is also fairly clear that by the 2nd of January 1962, even the iddat period prescribed by Islamic Law for a divorced wife, had not yet expired. Similarly, in the case of "Sardar & 03 others v/s Muhammad Khan alias Malla & 06 others" reported as 2003 YLR 2623, the Hon'ble Lahore High Court has also held that Talaq pronounced by Sultan Ali, deceased followed by written notice had not become final in accordance with the Injunctions of the Qur'an and Mst.
Dhami continued to remain widow of Sultan Ahmad, deceased, entitled to inherit his estate.
11. Even on merits, respondents have not been able to prove the execution of the alleged Talaq deed No. 372 dated 27.08.2018 as the very purchase of stamp paper by the deceased namely Shah Bakht Rawan and thereafter the execution of the alleged Talaq-Nama has also not been proved above the board. It would be relevant to mention here that the scriber of the alleged Talaq-Nama namely Ubaid Ullah who appeared as PW-5 has admitted in his cross-examination as under:- In view of the above, it could not be established by the respondents that the stamp paper was purchased by the deceased namely Shah Bakht Rawan himself, and this fact gain more significance when it is seen that as he was suffering from paralysis then how he could manage to go to the Court premises and took this exercise with such advance type of disease, therefore, in the given facts and circumstances of the case, the respondents have not been able to prove on record that the stamp paper for the execution of alleged Talaq Nama was purchased by the deceased namely Shah Bakht Rawan himself.
12. Another aspect of this case which was noted with great concern that neither the scriber (P.W-5) nor the notary public (P.W-6) knew the deceased namely Shah Bakht Rawan, as both have candidly, fairly and categorically admitted that they did not know the deceased namely Bakht Shah Rawan earlier and PW-5 the scriber of the alleged Talaq Nama has stated that the deceased was identified by his son namely Jamal Ahmad who happened to be a Patwari and as such a direct beneficiary of the alleged Talaq Nama remained on the front foot without associating any independent person with the process of execution of the alleged Talaq Nama, therefore, the very identity of the deceased namely Shah Bakht Rawan has not been established before the scriber of the deed through an independent, trustworthy and confidence inspiring evidence.
13. In view of the above exposition of religious, legal and factual aspect of the case the impugned order/Judgment of learned Guardian Judge Swat dated 24.01.2020 and that of Additional District Judge/ Izafi Zilla Qazi Swat dated 13.11.2020 are set-aside and the petitioner is held as entitled for her Shari share in the legacy of her deceased husband namely Shah Bakht Rawan and consequently the learned Guardian Judge Swat is directed to revoke the earlier succession certificate and issue a second succession certificate duly reflecting the share of the petitioner along with all other legal heirs of the deceased namely Shah Bakht Rawan. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.