Eidat Shah respondent was married to Mst. Shahid Farhat daughter of Aman Ullah petitioner on the 18th November, 1976. Unfortunately the relationship was far from cordial and according to the petitioner the respondent on the 4th September, 1979, executed a written divorce deed (the genuineness of this document is challenged by the respondent), and thereafter on the 18th January, 1980 Mst. Shahid Farhat was remarried to Imtiaz Khan with the blessings of the petitioner and other members of the family. On the 14th of April, 1980 Eidat Shah respondent filed a complaint against the petitioner, his daughter and his son-in-law for alleged offences under sections 494 and 114, P. P. C. Read with Articles 13, 14 and 15 of the Zina (Enforcement of Hudood) Ordinance, 1979.
Initially Mst. Shahid Farhat alone was summoned but the complainant filed a revision and the case was remanded to the learned trial Court for further consideration, who thereafter summoned as accused the petitioner as well as Mst. Shahid Farhat alongwith the witnesses, etc. Who were party to the 'nikah'.
2. It will not be out of place to mention that Mst. Shahid Farhat has filed a declaratory suit in the form of jactitation of marriage. She has also filed a suit for dower and dowry.
3. On the 3rd August, 1980 the petitioner filed an application under section 249-A of the Code of Criminal Procedure, which was dismissed on 18th of August, 1980. Hence the present application for quashment which was filed on the 14th September, 1980.
4. Learned counsel for the complainant concedes that the learned Additional Sessions Judge is wrong in assuming that section 494, P. P. C. No longer exists on the statute, and it is also conceded by the learned counsel for the complainant that either of the spouses to the former marriage could file a suit for jactitation of marriage, and therefore, he does not support the observation recorded by the learned Additional Sessions Judge, Multan in his order dated the 22nd May, 1980 remanding the case to the learned trial Court.
5. It is also admitted that the marriage between Eidat Shah respondent and Mst. Shahid Farhat took place between the parties with the blessings of the family members of the two spouses, and from the record it is obvious that the second marriage of Mst. Shahid Farhat has been solemnized with the blessings of the parents of the spouses, and not in any clandestine manner, but by way of a public ceremony, in accordance with the Muslim rites and the customs of the prevalent society, and therefore, I am quite satisfied that the parents would have married their daughter only on obtaining the divorce deed, i.e. The divorce, and on the expiry of the Iddat period (the execution of the divorce deed is not accepted by the complainant). Taking the broad facts into consideration and the normal pattern of our society, I am of the view that the parents, howsoever low or high in social standing, would not marry their daughter during the subsistence of the first marriage and the girl is always remarried after obtaining a divorce through the intervention of the elders and the respectable who enjoy esteem and respect with both the families.
6. On the legal plane it has been argued by the learned counsel for the complainant that a divorce could be effective only in accordance with section 7 of the Muslim Family Laws Ordinance, 1961 and in this regard( he has taken me through the leading case reported as Syed Ali Nawaz Gardezi v. Lt.- Col. Muhammad Yusuf and Inamul Islam's case .
7. The complainant has specifically referred to the following observations made in Ali Nawaz Gardezi's case at page 75 of the judgment :--- "If the husband himself thinks better of the pronouncement of talaq and abstains from giving a notice to the Chairman, he should perhaps be deemed, in view of section 7, to have revoked the pronouncement and that would be to the advantage of the wife. Subsection (3) of this section precludes the talaq from being effective as such for a certain period and within that period, consequently, it could not be said that the matital status of the parties had in any way been changed. They would still in law continue to be husband and wife."
And then to the below quoted portion of paragraph 43 at page 76 :- " We are, therefore, disposed to agree with the learned trial Judge than 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.'
Ali Nawaz Gardezi's case was clearly distinguishable on facts as it involved matters of her religion and conversion, her social background, her conduct before and after the alleged divorce deed, the expiry of the period of iddat, etc. Etc. And the above-quoted findings of the Supreme Court follow the findings on the facts of the case recorded in paragraphs 22, 23 and 24 and summing up in paragraph 25 of the judgment, and it is on that factual premises that the learned Court referring ,also to the provisions of section 7 of the Muslim Family Laws Ordinance, 1961, concluded as quoted above, and it is not the ratio decidendi of the judgment that a mere failure on the part of the husband, to give notice to the Chairman would make the divorce ineffective, or that on that account alone the possibility of divorce becoming effective has been ruled out, and very respectfully I will draw support from the usage of the words even if granted by the latter, which I have underlined* in the quotation from page 76.
The effect of the violation of sections 5 and 6 of the above-referred Ordinance was examined by their Lordships in paragraphs 35 and 36 of the judgment and their Lordships concluded as follows :- "The Ordinance course only penalises the person in respect of a marriage celebrated in contravention of the provisions of the Ordinance by making him liable to imprisonment or fine or both but does not invalidate the marriage itself."1 2 I would draw the same analogy in respect of the pronouncement of a talaq and the non- conformity with the provisions of subsection (I) of section 7 of the Muslim Family Laws Ordinance, 1961, and, therefore, take a view that subsequent to the pronouncement of the talaq on the expiry of the period of 90 days and in the absence of any act or conduct on the part of the husband indicating the revocation of his intention )or taking her back, failure alone on the part of the husband to give notice of the same to the Chairman as enjoined upon the husband by subsection
(1) of section 7 of the Muslim Family Ordinance, 1961, would not render the divorce as ineffective but it would only make the husband liable to a penalty as provided in section 7, and in support of taking this view I wouLl refer to section 7 itself, subsection (1) of which reads as follows :- "7. Talaq : (1) Any man who wishes to divorce his wife shall, 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."
[The underlining is mine] The words 'after the pronouncement of talaq in any form whatsoever' necessarily imply and pre- suppose the pronouncement of talaq in any manner whatsoever permissible under the Muhammadan Law, and, the step of issuing notice to the Chairman is a step subsequent and not a step preceding to or a qualification necessary for the pronouncement of talaq, and the object of the provision in the words of the Supreme Court is (para. 39 page 75) :- "But here it is obvious that the object of section 7 is to prevent hasty dissolution of marriage by talaq, pronounced by the husband unilaterally, without an attempt being made to prevent disruption of the matrimonial status."
And the observations following the above-quoted portion, are in the background of the facts of Christa Renate's case, as an observation on facts had already been recorded to the effect that Christa Ranate by her conduct even subsequent to the deed of execution of the divorce document (Exh. D/1) had continued to conduct herself in a manner :- "The complainant and this lady had behaved very much as normal spouses at parties arranged at their house in December, 1961."
And, therefore, it could well be possible in Christa Renate's case for the husband to have revoked the pronouncement of talaq and taken her back as his wife before the third pronouncement, rendering the divorce in effective, and in support thereof I would draw support from the underlined" words in the observations recorded in paragraph 43 of the judgment :- 46 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."
The words, "even if granted by the latter", recorded by their Lordships in the above-quoted observation foresee possibility of the talaq having become effective in certain situations, such as where the husband misconducts himself or tries to be clever, for mala fide objectives, by sending a written divorce to the wife and not performing the duty enjoined upon him by subsection (1) of section 7 of the Muslim Family Laws Ordinance, 1961, to give a notice to the Chairman. In my humble view on the expiry of the period of 90 days of the receipt of divorce by the wife, and in the absence of a proof of the fact that he has revoked the talaq and taken her back as a wife, the talaq will become effective as the law enjoins upon the husband to give notice to the Chairman.
In the case in hand the petitioner has married his daughter after the expiry of 90 days of the execution of the divorce deed and the complaint had been instituted 3 months thereafter, i.e. To say with a delay of 3 months of (he alleged commission of offence. This delay itself is a big pointer against the conduct of the complainant.*
8. The failure of the husband to send notice under section 7(1) makes him punishable with simple imprisonment for a term which may extend to three months or with tine unto one thousand rupees, or with both, and this section does not enjoin upon the wife to issue any such notice to the Chairman or any such information to the Chairman, regarding the receipt of divorce, and therefore, if the proposition canvassed by the learned counsel for the complainant was to be accepted it could lead to many mischiefs, i.e. To say that husband by handing over a written divorce deed could make his wife believe that she had been divorced and then kept quiet about the matter and when the other spouse remarries, he i.e. The husband could blackmail the new couple. Could it be possible to say that a wife will have to wait for the rest of the life for her husband who sends her a written divorce and thereafter does not contact her or she does not hear from the Chairman for a reasonable period ? Could it be possible to challenge the legal and social status of the children of the couple whose marriage was duly solemnized under the Muslim rites and who married honestly believing and having been led to believe that they were legally free and competent to contract a marriage or in a case where the `nikahkhawan or the person who solemnized an otherwise valid marriage but failed to have the marriage registered in accordance with the provisions of Muslim Family Laws Ordinance, 1961, would the offspring's be treated as illegitimate ?
Therefore, a careful analysis of the above-quoted observations in paragraphs 36, 39 and 43 recorded in Ali Nawaz Gardezi's case do leave a room open for a conclusion that mere failure to give notice to the Chairman would not render ineffective a talaq which has been pronounced in accordance with the tenets of Islam and which has otherwise become effective, or that non- compliance with the provisions regarding the registration of marriage, etc. Would not invalidate the marriage itself. The failure to comply with the provision of section 7 in the case of talaq and the contravention of the provisions of the above-referred Ordinance in the case of marriage would render the offender, i.e. The husband in the former case liable to imprisonment or fine or both.
9. Similarly in Inamul Islam's case the observation recorded in paragraph 5 has to be read in the light of the factual observation recorded in the same paragraph, which observation is reproduced for the sake of clarity "In this case, there is no proof from the petitioner side either of the "pronouncement" on a particular day or of service on the respondent of copy of the notice."
In the case in hand, the version of the petitioner and his family member is that the respondent gave a divorce in writing and they have already filed a suit for jactitation of marriage ; a suit for dower and dowry ; the second marriage took place after the expiry of 90 days and the private complaint )has been filed yet another 3 months later.
In the circumstances stated above, for the present, and in the absence of a declaration by the civil Court that the written divorce deed, dated the 4th September, 1979 is not a genuine document, the continuation of the criminal complaint entitled Eidat Shah v. Mst. Shah ida Farhat, etc. Pending in the Court of Raja Muhammad Tasneem, Magistrate section 30, Khanewal, would be a clear abuse of the process of law, and the proceedings are hereby quashed. PLD 1963 SC 51 PLD 1976 Lab. 1466 [Here in italics] 1 2 *