' These two writ petitions (W.P. 13918-94 filed by Nasim Akhtar and 14238-94 filed by Muhammad Aslam) assail the same order of the learned Additional District Judge, Lahore dated 29-9-1994 as such they shall be disposed of by this judgment.
2. Brief facts giving rise to these petitions are that Mst. Nasim Akhtar petitioner was married to Muhammad Aslam, respondent No,2 on 27-10-1981. They lived together in Mauza Bhattan Wala.
After some time respondent No,2 shifted to Lahore and differences developed between the parties and the petitioner was thrown out of the house by respondent No,2 on 1st November, 1983, while she was pregnant and she gave birth to a female child Shabana Kausar about one month thereafter.
On 6-2-1989 the petitioner filed a suit for maintenance before the learned Judge, Family Court, Lahore, claiming maintenance for herself and for her minor daughter Shabana Kausar. She claimed Rs,1,000 p.m. As arrears from 1-11-1983 till the filing of the suit and Rs,2,500 p.m. From the date of filing of the suit onwards. Respondent No,2 resisted the suit. In the written statement he claimed that he had divorced the petitioner in September, 1986 and since she was no longer his spouse she was not entitled to any maintenance. The learned trial Court framed the following issues from the pleadings of the parties:---
(1) Whether the plaintiff has got no cause of action and locus standi to file the suit? OPP
(2) Whether the suit is false and vexatious and the defendant is entitled to get special cost under section 35-A, C.P.C.? OPP
(3) Whether the defendant hat divorced the plaintiff in September, 1986? OPD
(4) In case issue No,3 is not proved, whether the plaintiff is entitled to any maintenance, if so since when and what monthly rate? OPD
(5) Relief.
3. The parties led their evidence in support of their respective contentions and after hearing the arguments of both the sides learned trial Court concluded that the petitioner-plaintiff had not been divorced by the defendent-respondent No,2, since provisions of section 7 of the Muslim Family Laws Ordinance regarding notice of Talaq had not been complied with by him. It was further held that respondent No,2 had not paid any maintenance to the petitioner-plaintiff or her minor daughter and since the petitioner-plaintiff had not kept herself away unjustifiably he was under obligation to pay maintenance to the petitioner as well as to his minor daughter. Accordingly the learned trial Court decreed the suit of maintenance in favour of the petitioner and directed respondent No,2 to pay Rs,1,500 p.m. (Rs,1,000 for the plaintiff and Rs,500 for her minor daughter) from the period commencing 6-2-1986, i,e, three years ahead of filing the suit, and future maintenance also at the same rate, vide judgment dated 19-4-1992.
4. Aggrieved by this judgment respondent No,2 filed an appeal before the learned Additional District Judge, Lahore, who partly accepted the same vide judgment dated 29-9-1994 and disallowed maintenance allowance in respect of minor Shabana Kausar and directed that maintenance be paid to the petitioner-plaintiff at the rate of Rs,1,000 p.m. For the period of three years ahead of filing of the suit up to the filing of written statement by respondent No,2 i,e, 26-7- 1989, wherein respondent No,2 had declared in writing that he had divorced the petitioner.
Aggrieved by this judgment both the petitioner and respondent No,2 have assailed the same through their respective writ petitions.
5. Learned counsel for the petitioner had argued that the judgment of the Appellate Court, respondent No,1, reducing the amount of maintenance is arbitrary and illegal since the grounds for such reduction as laid down in the impugned judgment are that the divorce pronounced by respondent No,2 against the petitioner had become effective when the petitioner received notice of the same through written statement of respondent No,2 filed before the learned trial Court on 26-7-1989; this view was not in accordance with law since mere filing of written statement did not amount to compliance of section 7 of the Muslim Family Laws Ordinance. It was further argued that actual notice of divorce had been sent to the Chairman, Union Council, by respondent No,2 through registered post which was received by the said Chairman on 13-2-1994 and under the law the divorce attained finality on 15-5-1994 i,e, 90 days after the receipt of said notice by the Chairman. It was further argued that respondent No,1 had illegally disallowed maintenance awarded in favour of the minor daughter, Shabana Kausar, on the ground that she was not a plaintiff in the suit for maintenance. It was contended that the learned trial Court while awarding maintenance could take into account that the petitioner was supporting her minor daughter, Shabana Kausar, and thus the learned trial Court could have granted maintenance for her.
6. Learned counsel for respondent No,2- argued that the judgment of the learned Appellate Court is not sustainable since it did not take into account the earning capacity of respondent No,2 while awarding maintenance in the sum of Rs,1,000 p.m. To the petitioner. He further argued that the Court had illegally concluded that divorce had become effective on 26-7-1989, the date of filing of written statement by respondent No,2 since he had originally sent notice of divorce to the petitioner on 22-9-1986, executed on a stamp paper of Rs,15 and that after the completion of Iddat period of 90 days thereafter the petitioner had ceased to be the wife of respondent No,2 and thus he was no more liable to maintain her. It was further argued that the petitioner was estopped from claiming that respondent No,2 had not divorced her since during the pendency of proceedings before respondent No,1, the petitioner had entered into a second marriage and had also given birth to a child out of the second marriage on 1-10-1994, and as such she was not entitled to any maintenance after she had accepted that she was divorced by respondent No,2. Reliance was placed by learned counsel on Mst. Kaniz Fatima v. Wali Muhammad PLD 1993 SC 901 in support of his argument.
7. I have heard the learned counsel for the parties and have also gone through the record with their assistance. Admittedly the petitioner Mst. Nasim Akhtar had not been maintained by respondent No,2 after she had been thrown out of the house by him on 1st November, 1983, nor had he paid any maintenance for his daughter Shabana Kausar who was born about one month thereafter. He had entered into second marriage after throwing out the petitioner and also had children from his second wife. In such circumstances the petitioner is entitled to maintenance till such time as she is effectively divorced by respondent No,2. Shabana Kausar being minor daughter of respondent No,2 is also entitled to be maintained by him. The learned Appellate Court had wrongly held that the minor could not be awarded maintenance, since she was not a plaintiff in the suit. It has been held by the Supreme Court of Pakistan in Ghulam Nabi v. Muhammad Asghar PLD 1991 SC 543 that while granting maintenance to the wife the Court has to take into account her needs vis-a-vis A any minor child whom she might be supporting in the same household. Thus the order of maintenance by the learned trial Court in which the needs of the daughter of the petitioner-plaintiff had also been taken into consideration is unexceptionable in this regard.
8. The question as to when the divorce given to the petitioner by respondent No,2 became effective requires consideration. Admittedly respondent No,2 had not sent any notice of Talaq to the Chairman, Union Council, uptil the time of decision of the learned trial Court. During the pendency of the appeal it appears that he made up this omission by sending photo copy of Talaqnama dated 22-9-1986 to the Chairman, Union Council No,107, Chak No,130/RB, Rattian, Tehsil and District Faisalabad, through registered post which according to the record of the Union Council was received on 13-2-1994 and since no reconciliation was effected it would be deemed to have become effective after 90 days. No certificate of divorce was issued by the Chairman, Union Council, since learned counsel for respondent No,2 served a notice on the Chairman dated 16-4- 1994 that a matter was pending before respondent No,1 and the proceedings should be kept in abeyance till the decision of that Court. It is apparent from the Chairman's record that respondent No,2 was fully aware that notice under section 5 of the Muslim Family Laws Ordinance had been received by the Chairman under registered cover sent by respondent No,2 but he neither repudiated sending the same nor did he explicitly or impliedly revoke the notice. In such circumstances the Talaq became effective 90 days after receipt of notice by the Chairman, under section 7(3) of the Ordinance. The learned Appellate Court after having observed that Talaq given by respondent No,2 on 22-9-1986 was ineffective since respondent No,2 had not complied with the provisions of section 7 of the Ordinance, has erroneously held that the Talaq became effective when the petitioner became aware of the same through written statement filed by respondent No,2 on 26-7-1989. There is no legal or rational basis for arriving at such a conclusion, which if allowed to stand, would provide a device to any husband who wishes to defeat a suit for maintenance filed by a wife. He could merely file a written statement to the effect that he had divorced his wife before the suit was instituted and thus avoid liability.
9. The question as to whether a Talaq becomes effective even if the provisions of section 7 of the Ordinance are not complied with has been addressed by the Supreme Court of Pakistan in several cases. In case cited as Ali Nawaz Gardezi v. Muhammad Yousaf PLD 1963 SC 52, Abdul Mannan v.
Safuran Nessa 1970 SCMR 845, Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqui 1984 SCMR 583, Ghulam Nabi v Farrukh Latif 1986 SCMR 1350 and Malik Javid Ali v. Abdul Kadir 1987 SCMR 518 it was held that requirements of provisions of section 7 of the Ordinance have to be observed in order that a Talaq may become effective. In Allah Dad v. Mukhtar 1992 SCMR 1273 and Mst. Zahida Shaheen v. The State 1994 SCMR 2098 it was held that any divorce pronounced or written by a husband cannot be ineffective or invalid in Shariah because its notice had not been given to the Chairman and noncompliance of the provisions of section 7 of the Ordinance could not affect the validity of a subsequent marriage at least to the extent of criminal liability envisaged under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
' In the case relied upon by the learned counsel for respondent No,2 i,e, Mst. Kaniz Fatima v. Wali Muhammad PLD 1993 SC 901 it was held that applicability and interpretation of section 7 of the Ordinance has to be construed in the light of the facts of each case. Where, with consent of both the parties divorce is effected and confirmed in writing under their undisputed signatures, section 7 should not be strictly construed particularly in cases where penal provisions of section 7(2) are to be enforced for in such cases the parties do not wilfully commit breach and bona fide believe that they have been divorced with the consent of each other and sending of notice to Chairman is merely a formality.
10. It can be concluded that the principle underlying the aforesaid decisions is that if the divorce had taken place with the knowledge, consent and acquiescence of the woman, and having acted on the belief that she was divorced the woman subsequently entered into a second marriage, the provisions of section 7 of the Ordinance would not be strictly construed, in order to protect the woman from criminal liability. However, in cases, where no consent or acquiescence of the woman was shown, mere unilateral notice of Talaq by the husband to the wife would not make Talaq effective without compliance of the requirements of section 7 of the Ordinance and such notice could not be availed of by him in order to escape his matrimonial obligations.
11. In the circumstances of the present case the learned Judge, Family Court, has correctly held that the divorce was not effective, since compliance with the requirements of section 7 had not been made and there was no consent or acquiescence on the part of the petitioner.
' Even otherwise the conduct of the respondent No,2 throughout has been such as disentitles him to any equitable relief. The notice of divorce dated 22-9-1986 had admittedly not been sent to the Chairman, Union Council, by the petitioner but after the decision of the learned Judge, Family Court, to the effect that the Talaq was ineffective, the respondent No,2 made effort to comply with the provisions of section 7 in half-hearted manner by sending copy of the notice to Chairman, Union Council, by registered post. Respondent No,2 tried to keep his "options" open by not revoking the notice but at the same time persuaded the Chairman not to issue the certificate to Talaq till he knew the outcome of the appeal before respondent No,
1. It is to be noted that issuance of certificate of Talaq by the Chairman is not a pre-condition for the effectiveness of Talaq. In Mst.
Fehmida Bibi v. Mukhtar Ahmad PLD 1972 Lah. 594, and M. Zikria Khan v. Aftab Ali Khan PLD 1985 Lah.
319 it has been held that after the expiry of the period of 90 days from service of notice to the Chairman under section 7 of the Ordinance, the divorce becomes effective automatically unless revoked earlier. Relevant part of section 7 of the Ordinance may be reproduced here with advantage:--- "7. * * * * * * * * * *
(3) Save as provided in subsection (5), a Talaq unless revoked earlier expressly or otherwise, shall not be effective until the expiration of ninety days from the day of which notice under subsection (1) is delivered to the Chairman.
I, therefore, hold that Talaq of respondent No,2 with the petitioner became effective on 15-5-1994 after completion of 90 days from receipt of the notice by the Chairman, Union Council which was not revoked by respondent No,2.
12. According to the Nikahnama placed on record by the petitioner it appears that the petitioner entered into second Nikah on 1-6-1994 which is after the Talaq by respondent No,2 became effective and thus the argument of the learned counsel for respondent No,2 that she was estopped from denying the effectiveness of the earlier Talaq notice is of no avail. Respondent No,2 on the last date of hearing placed on record a birth certificate procured from the Municipal Committee, Chiniot, in an attempt to show that the Nikahnama was a fabricated document and the petitioner had married her second husband, namely, Manzoor Ahmad, on some earlier date and had given birth to a child on 1-10-1994. Even though the presentation of the document at this belated stage after the close of arguments is itself irregular I have scrutinised it in the interest of justice and have found that on the face of it there appears to be interpolation made in the document since the original date of birth of the infant Mehwish as entered in this document is 20-1-1995, and the information regarding the birth has been entered in the register on 22-1-1995, which appears to be natural in the normal course of events. However, there is a foot-note on the certificate to the effect that by order of the Administrator the date of birth of the infant has been rectified on payment of Tawan (fine) of Rs,200 and the original date has been scratched out and substituted by 1-10-1994.
Prima facie the original date of birth entered in the certificate appears to be correct and it is not clear at whose initiative the subsequent interpolation had been made. However, this document in itself does not improve the case of respondent No,2 whose earlier conduct as discussed above has not been above board throughout the entire proceedings.
13. The only question which remains to be addressed is as to whether the learned Judge, Family Court, had taken into consideration the means of the respondent No,2 while passing order of maintenance. According to the concurrent finding of both the Courts below the respondent No,2 runs a business of general merchant and he himself had admitted in his statement that his father owns shops and houses which had been attributed to him by the petitioner in her statement. It is also in evidence that the respondent No,2 has been .Maintaining a second wife and children throughout the proceedings. The amount of Rs,1,500 per month awarded by the learned trial Court is not excessive for a man who is running even a modest business of general merchant and whose father is owner of substantial property.
14. In view of the above discussion this petition is accepted with costs, the impugned order of respondent No,1, learned Additional District Judge, Lahore is set aside, being without lawful authority and of no legal effect. The order of the learned trial Court is restored with the qualification that the petitioner is entitled to her share of maintenance till the date her divorce became effective i,e, 15-5-1994 while the minor Shabana Kausar shall receive her share of the maintenance till her entitlement underthe law. The writ petition (W.P. 14238 of 1994) filed by Muhammad Aslam is accordingly dismissed with costs.