' Applicant Dr. Ashique Hussain has invoked Constitutional Jurisdiction of this Court, for challenging the judgment and the decree dated 24-5-1987, passed by a Family Court in Family Suit No.709/85 and the judgment and the decree dated 10-12-1988 passed in Family Appeal No.43/87 by Ist Additional District Judge, Karachi (East).
2. Admittedly the applicant was married to respondent No.2 Mst.Nazir Bano on 31-5-1979 at Karachi and thereafter they lived together as husband and wife at Tando Adam, District Sanghar. During the wedlock a son namely Adnan Urooj was born. Subsequently the parties started living separate from each other, the applicant living at Tando Adam and the respondent No.2 living at Karachi and having in her custody Adnan Urooj.
' In May 1985 Mst. Nazir Bano respondent No.2, and her son Adnan Urooj filed Family Suit No. 1068/85 (which subsequently was re-numbered as Suit No.709/85) against the applicant for maintenance allowance for them, at the rate of Rs.1,500 per month for each of them. Mst. Nazir Bano alleged that on 5-4-1985 she was told by the applicant to leave his house which she left on 11-4-1985 and went to house ofher mother at Karachi. On 13-4-1985 Mst. Nazir Bano sent a message to the applicant to come to her personally and take her back after making certain assurances. However on 15-4-1985 Mst. Nazir Bano received a legal notice through an advocate, to the effect that she was divorced by her husband. She replied the legal notice on 6-5-1985.
3. The suit was contested by the applicant, who in his written statement denied the allegations that he had shown disrespect to respondent No.2 or to have treated her otherwise than with love and affection. Applicant contended that the respondent No.2 used to leave his house without his permission for staying in house of her mother, where the atmosphere was injurious to human life.
The applicant further stated that the respondent No.2 had assumed the position of a divorced wife by accepting the legal notice dated 15-4-1985. He claimed to have offered several times the maintenance allowance to the respondent No.2 through money orders but the same were refused.
It was alleged that the respondent No.2 was illiterate, ill-tempered and cunning with no permanent place of abode and she was influenced by the environment and atmosphere in house of her parents. It was added that the respondent No.2 had no cause of action to file the suit at Karachi where her stay was temporary.
4. After recording the evidence of the parties learned Family Judge under the impugned judgment dated 24-5-1987 allowed the application and ordered the applicant to pay maintenance allowance to the respondent No.2 at rate of Rs.700 per month for her maintenance and at rate of Rs.700 per month for maintenance of Adnan Urooj, with effect from 11-4-1985. Maintenance allowance for the respondent No.2 was to continue till the applicant sent notice of "Talaq" to the Union Council and till the "Talaq" became effective. Said judgment and the decree were challenged in Family Appeal No. 43/87, which was decided on 10-12-1988 under the impugned judgment by learned 1st Additional District Judge Karachi (East), who maintained the decree about maintenance with modification. Under modified decree Respondent No.2 was to be paid Rs.500 per month till her "Iddat" period after she was divorced and master Adnan Urooj was to be paid Rs.500 per month upto his primary education and Rs.700 per month from the date of admission in VI Class till the age of majority. Hence this Constitution Petition.
5. Under an order dated 10-5-1989 this Court admitted this petition only in respect of the order of maintenance passed in favour of the respondent No.2, while the petition against the order of maintenance passed in favour of Adnan Urooj was dismissed in limine.
6. Mr. Hakim Ali Siddiqui, learned counsel for the applicant argued that the respondent No.2 stood divorced by the applicant, who in his cross-examination stated that he had divorced the respondent No.2 in April 1985 and had sent to her written divorce through his lawyer and had alsb sent a notice to the Chairman Municipal Committee Tando Adam. It was next argued that even if the evidence to prove the divorce was not sufficient, the statement on oath by the applicant in Court that he had divorced the respondent No.2 by itself dissolved the marriage between the applicant and the respondent No.2. It was further argued that for pronouncing "Talaq" it was not necessary that the same should be in presence of the witnesses. In support learned counsel for the applicant relied on the observations made at pages 383 and 384 of the Code of Islamic Laws in Urdu by Dr. Tanzilur Rehman (as he then was). In respect of the provisions contained by Section 7 of the Muslim Family Laws Ordinance, it was contended that the same were declared null and void by Federal Shariat Court in the case of Mohammad Sarwar and another V. State (PLD 1988 FSC 42) and by this Court in the case of Mirza Qamar Raza v. Mst. Tahira Begum and others (PLD 1988 Kar.169). Lastly it was argued that the applicant was liable to maintain the respondent No.2 only till her period of "Iddat" and not beyond that.
7. Unfortunately none appeared for the respondent No.2 to address the arguments. Even the respondent No.2 was called absent throughout the day.
8. In his deposition Ex.6 in the trial Court, applicant Ashiq Hussain deposed that he had divorced the respondent No.2 on 13th April 1985. In his cross-examination the applicant admitted that he and the respondent No.2 had the same grand-father and that his sister Yasmin was married to Altaf Hussain brother of the respondent No.2 and they were living at Karachi with their three children.
Applicant admitted that he had sent his brother Khalid to ask the respondent No.2 to come back to him but she declined. In reply to a question from the opposing counsel the applicant stated in unequivocal terms that he had divorced the respondent No.2 in April 1985 and had sent to her a written divorce through his lawyer and had also given notice to the Chairman Municipality Tando Adam. He added that the notice of divorce sent to the respondent No.2 was signed by his advocate under his instructions. In reply to yet another question the applicant stated that he had divorced respondent No.2 and therefore she was not entitled to the maintenance. Applicant examined in his support DWs. Qamaruddin Ex.7 and Mohammad Asif Ex.8. They deposed that respondent No.2 was demanding divorce from the applicant, who divorced her in their presence. In his deposition Ex.6 the applicant did not state if he divorced his wife in presence of Qamaruddin and Mohammad Asif.
Respondent No.2 Mst. Nazir Bano in her deposition Ex.5 deposed that on 15-4-1985 she received a notice from an advocate containing false allegations against her. She alleged that the applicant had not sent to her maintenance since she came to Karachi. Mst. Nazir Bano showed her ignorance if she was divorced under the notice received by her.
9. It has been mentioned at page 383 of Code of Islamic Laws (Vol.II) by Dr. Tanzilur Rehinan that every adult Muslim was competent to divorce his wife, directly or through any other adult person whom he had appointed as his Vakil. In the same book at page 384 it was mentioned that for proving Talaq no evidence was necessary. Learned counsel for the applicant cited the case of Asmatullah and others v. Mst. Khatoon Nisa and others (AIR 1939 All 592) where it was observed that if an acknowledgment of Talaq is made by the husband, the divorce will be held to take effect at least from the date upon which the acknowledgment is made. In the cited case a lady claimed share in certain property which belonged to her husband and the defence taken was that the lady had been divorced by her husband and that in certain criminal proceedings initiated by the lady for maintenance against her husband, the latter had stated that he had divorced her according to Mohammadan Law. In presence of such facts it was contended in the cited case that it must be held that husband of the lady had in fact divorced her on the date upon which he made the statement in Court that he had divorced her. Allahabad High Court agreed with such contention which was supported by page 296 of Macnaghten's Principles and Precedents of Mohammadan Law (1890 Edition). In case 42 of said book it was decided that where a husband states that he has divorced his wife and the wife denies that she has been divorced, the divorce should be held to take effect from the date upon which the statement was made. In view of this legal position, I hold that for the purposes of maintenance allowance, the respondent No.2 shall be deemed to have been divorced by the applicant on 10-2-1987, when the applicant made statement before the Judge of Family Court on oath in cross-examination in reply to the questions from counsel for the respondent No.2 that "he had divorced the respondent No.2 in April 1985" and had sent a written divorce to her through his lawyer and had also given a notice to the Chairman Municipal Committee Tando Adam.
10. The last hurdle in the way of the applicant is existence of the provisions contained by Section 7 of the Muslim Family Laws Ordinance. Inconsistency of said provisions with the Holy Ouran and Sunnah was highlighted in the case of Mirza Qamar Raza v. Mst. Tahira Begum and others (PLD 1988 Kar. 169), by Mr. Justice Dr. Tanzilur Rahman (as he then was). In said case it was observed that the keeping of effectiveness of divorce in abeyance for ninety days to begin from the date of the receipt of its notice by the Chairman, seems to be against the Injunctions of Islam. Said case was followed by the Federal Shariat Court in the case of Muhammad Sarwar and another v. State (PLD 1988 FSC 42) where it was held that effectiveness of the Talaq cannot be subjected to the service of notice on the Chairman. In view of these authorities I am of the opinion that omission by the applicant to send notice of Talaq under Section 7 of the Muslim Laws Ordinance would not operate to make the Talaq inoperative if the applicant had pronounced Talaq with an intention to dissolve the marriage between him and the respondent No.2.
11. Even if the notice dated 15-4-1985 did not constitute Talaq by the applicant the fact remains that on 10-2-1987 the applicant stated on oath in presence of the Judge Family Court that he had divorced the respondent No. 2 in April 1985 and had sent to her a written divorce through his lawyer and had also given a notice to the Chairman Municipality of Tando Adam. In the circumstances I agree with learned counsel for the respondent that categorical statement by the applicant in Court on 10-2-1987 about having divorced the respondent No.2 by itself dissolved the marriage between him and the respondent No.2, for the purposes of maintenance allowance and that right of the respondent No.2 to be maintained by the applicant continued only till 10-5-1985.
12. Consequently the impugned judgments and the decrees in respect of grant of maintenance allowance to the respondent No.2 are modified to the extent of Respondent No.2 getting maintenance allowance from the applicant till 10-5-1985. The Constitution Petition stands disposed of in the aforesaid terms.