SAFDAR SALEEM SHAHID, J. The instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls into question the legality of the judgments and decrees dated 05.07.2011 and 24.11.2011 passed by the learned Judge Family Court and learned Addl. District Judge, Faisalabad.
2. Brief facts necessary for decision of the instant petition are that on 16.06.2010 respondents No.3 and 4 filed a suit for recovery of maintenance allowance and dower amount, alleging therein that respondent No.3 was married with the petitioner on 01.11.2002; that after some time relations between the parties became strained and more than six years ago the petitioner ousted respondent No.3 from his house; that thereafter out of their wedlock respondent No.4 was born through major operation, but the petitioner despite information did not visit; that income of the petitioner being a police constable and a businessman was more than Rs.50,000/-, as such it was prayed that a decree for recovery of gold ornaments weighing three tolas as Haq Mehr, as fixed at the time of Nikah, and for the past as well as future maintenance allowance at the rate of Rs.6000/- per month for each of the respondents be passed. The petitioner contested the suit by filing written statement and raised certain preliminary objections.
3. The learned trial Court, out of divergent pleadings framed issues, recorded evidence of the parties and after having gone through the same, while dismissing the suit to the extent of dower amount, partially decreed the suit in the terms of that respondent No.4 was held entitled to recover Rs.2500/- per month as maintenance allowance from January 2010 till her marriage with 15% annual increase, whereas maintenance allowance of respondent No.3 was fixed as Rs.5000/- for the period of Iddat, through judgment and decree dated 05.07.2011. Feeling aggrieved both the parties filed appeals and the learned Additional District Judge, while dismissing the appeal of the petitioner, allowed the appeal filed by respondents No.3 and 4 in the terms that both of them were held entitled to recover maintenance allowance at the rate of Rs.2500/- per month from the date of institution of suit and also granted decree for recovery of three tolas gold ornaments as Haq Mehr.
4. Arguments heard. Record perused.
5. Respondent No.3 in her plaint claimed that she was ousted by the petitioner from his house six and a half years prior to the institution of the suit whereas the petitioner in his written statement claimed that since the time of marriage as settled between the parties, respondent No.3 was living in the house of her parents in a separate room, but in December 2009 behavior of respondent No.3 was changed and she demanded for divorce, as such he divorced her on 04.01.2010, hence she was not entitled to any maintenance allowance. It was the case of the petitioner that since he issued notice of Talaq on 04.01.2010, the same became effective with the efflux of time i.e. after lapse of 90 days as contemplated in Section 7 of the Muslim Family Laws Ordinance, 1961 (VIII of 1961). For convenience, the afore-noted provision is reproduced as under:- "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 a notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever, contravenes the provisions of subsection (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 subsection (5) talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under Subsection (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about conciliation 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 effective until the period mentioned in Subsection (3) or the pregnancy, whichever 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.
Under Section 7 of the above-noted Ordinance, a person who wishes to divorce his wife shall, as soon as may be, after the pronouncement of Talaq in any form, whatsoever, give a notice in writing of his having done so to the Chairman of the Union Council/Town Committee in which the wife in relation to whom Talaq had been pronounced was residing that stage of time. Simultaneously, a copy of divorce notice, shall be transmitted to the wife. After the receipt of the notice by the Chairman he is obligated to constitute an Arbitration Council consisting of representatives of the parties for effecting reconciliation, if any, between the parties. Unless, a notice as required by Section 7 of the Ordinance is given to the Chairman, mechanism for bringing about the reconciliation between the parties is not set in motion, nor does the divorce become effective.
Obviously, there are two equally important requirements first, notice of divorce must be given to the Chairman, second, a copy of notice must be supplied to the wife. However, Subsection (3) of Section 7 states that Talaq pronounced unless revoked earlier expressly or otherwise does not become effective until the expiry of the period of 90 days; from the day on which the notice of Talaq is delivered to the Chairman, period of ninety days starts from the day notice is received. This period is available to the parties to reconsider and retrace their steps, if they are so minded. Legal effects of non-supply of a divorce notice to the wife are not provided in express terms in Section 7 of the Ordinance qua the effectiveness of divorce.
6. In view of the above, the divorce, notwithstanding the conduct or attitude of any of the parties, shall become effective after the expiry of ninety days unless the same is revoked earlier. In the event, the parties appear before the Chairman and an Arbitration Council is constituted, but reconciliation does not succeed, the only thing the Council or the Chairman may do, is to record in writing that reconciliation has failed. There is no other function, which a Chairman or an Arbitration Council is competent to perform in this behalf. If reconciliation does not succeed or the husband does not revoke Talaq before expiry of ninety days, it becomes automatically operative and effective. There is no provision either in the Ordinance or the Rules requiring the Chairman or the Arbitration Council to give a decision or to issue a certificate to make the divorce effective. If the Chairman issued the certificate, it was not under any provision of law and had no legal effect.
7. In para No.310 of "Principles of Mohamedan Law" by D.F. Mullas, it is provided 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, it is provided as follows:- "Talak-ul-bidaat or talak-i-badai, consists of:
(i) Three pronouncements made during a single tuhr either in one sentence, e.g., "I divorce thee thrice--- or in separate sentence e.g., "I divorce thee, I divorce thee, I divorce thee" (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."
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-badai, that is, irrevocable talak."
In view of above referred paras, it is crystal clear that even oral divorce given thrice becomes irrevocable and become effective the moment same was pronounced. In the instant case, the petitioner claimed to have pronounced divorce thrice through notice dated 04.01.2010, therefore, in view of the above referred provisions when the same was not proved to have been revoked before the expiry of 90 days, it had become effective. In this regard, reliance can be placed upon M. Zikria Khan vs. Aftab Ali Khan and another (PLD 1985 Lahore 319), Mst. Naveeda Kausar and others vs. Mauzzam Khan and others (2016 CLC 180) and Major (R) Abrar Hussain vs. Judge Family Court, Lahore and others (2016 MLD 218).
8. Even otherwise, respondent No.3 neither anywhere in her plaint claimed that she was ready to rehabilitate with the petitioner nor in her evidence made any such offer in order to prove her claim that she was still his legally wedded wife. Such right to maintenance, as per the Islamic Law, however, is subject to the obedience of the wife (first to Allah) and then to her husband. The jurists have not reached consensus as to the accepted legal definition, interpretation and application of "disobedience". Generally it is accepted that when a wife leaves the home without consent or lawful excuse may amount to disobedience. Non Hanafi schools have argued that a healthy wife who denies her bed to her husband is disobedient and therefore loses her right to maintenance. In this situation, the learned appellate Court has erred in holding that respondent No.3 was still legally wedded wife of the petitioner and as such was entitled to receive maintenance allowance.
9. However, if on the one hand a disobedient lady living separate from her husband without any reason should not be paid maintenance allowance for the period she had not performed her matrimonial obligations, but on the other hand in lieu of her breastfeeding to the minor during the said period, she was entitled to receive maintenance allowance/compensation from father of the child. Reference in this regard is made to Verse 233 of Surah Al Baqara in the Holy Quran, whereby the father has been bound down to provide maintenance allowance to the lady who was breastfeeding his child. As per "Sharia? the father is duty bound to maintain his wife who was feeding his child. This principle is established from the traditions of Arabic societies where the children were handed over to the ladies (foster mothers) for feeding and they were paid penny/reward for feeding purpose. It is also a principle that even after separation, the lady can live in the house of her ex-husband for the purpose of feeding in case she had a suckling baby, within the limits prescribed by Almighty Allah. Under the Islamic Rules, the feeding period has been fixed by the Fiqa as 2 /2 years. The learned Courts below, however, did not keep in mind entitlement of the lady for the maintenance allowance for the period she had been feeding the minor and maintaining the suckling baby of the petitioner. In this regard, reliance can also be placed upon the case of Muhammad Aslam vs. Muhammad Usman and others (2004 CLC 473).
9. As regards the quantum of maintenance awarded to the minor respondent No.4, the learned trial Court keeping in view the evidence brought on record by the parties regarding financial status of the petitioner as well as the necessities of the minor, had rightly concluded that she was entitled to recover maintenance allowance at the rate of Rs.2500/- per month. In addition thereto, the learned trial Court had calculated the period of entitlement of the minor taking in view the admission made by the petitioner in his written statement that respondent No.3, who was already living in the house of her parents, had changed her behavior and demanded Talaq in January, 2010 and had rightly granted maintenance from January 2010 till her legal entitlement with 15% annual increase.
10. The other claim of respondent No.3 was for grant of Haq Mehr in the shape of gold ornaments weighing three tolas, as mentioned in column No.16 of the Nikah Nama, which was alleged to have not been given to her. Column No.16 is regarding delivery or agreement for delivery of any property in lieu of Haq Mehr or any part thereof. The said column has been filled in with the words which clearly reveals that the said gold ornaments had been delivered to respondent No.3 at the time of marriage. The only oral evidence brought on record by respondent No.3 to prove that the said gold ornaments were not delivered or that the same were taken back after delivery, was not sufficient to negate the document, admitted by both the parties. When documentary evidence is contradictory to the oral evidence no reliance can be placed on the oral testimony and that it is well-established rule of appreciation of evidence that a person can tell a lie but documents do not so. In this situation, the learned trial Court rightly concluded that respondent N.3 was not entitled to recover dower in the shape of gold ornaments weighing three tolas, but the learned appellate Court erred in holding otherwise.
11. For what has been discussed above, the instant petition is partly allowed, the judgment and decree passed by the learned appellate Court is set aside while that of the trial Court is upheld, however, with the modification that respondent No.3 shall also be entitled to recover maintenance allowance at the rate of Rs.2500/- per month for a period of 2/2 years, in addition to the decree for maintenance allowance of Rs.5000/- as already granted for her Iddat period. There shall be no order as to costs.