The judgments and decrees dated 19-9-1995 and 15-5-1999 passed respectively by the learned trial Court and the learned First Appellate Court have been assailed in this revision petition, whereby the suit for declaration filed by Mst. Dhami, the predecessor-in-interest of the respondents has concurrently been decreed.
2. The dispute in this case relates to the inheritance of the estate of one Sultan Ahmad who died issueless. The petitioners are the legal heirs of the deceased while the respondents are the legal heirs of Mst. Dhami. Widow of Sultan Ahmad. The facts which are not disputed, are that notice of divorce was given by aforesaid Sultan Ahmad to Mst. Dhami on 22-3-1994, while he died on 25-3- 1994. The suit was filed by Mst. Dhami claiming share in the estate of Sultan Ahmad with the averment that a forged and fictitious document was prepared by the petitioners. The deceased was not in possession of his senses and that she was never informed of the so-called divorce.
Better statement of the parties were recorded to ascertain the date of divorce and the date of death of Sultan Ahmad and relying on Mushtaq Ahmed and another v. Mst. Sat Bharai and 5 others 1994 SCMR 1720, the respondents, successors-in-interest of Mst. Dhami, were found entitled to 1/4th share in the estate of aforesaid Sultan Ahmad. The suit was, accordingly, decreed. The petitioners filed an appeal which was dismissed vide judgment and decree dated 15-5-1999.
3. The learned counsel for the petitioners contends that a written divorce becomes instantly operative and, therefore, on 22-3-1994, Mst. Dhami ceased to be the were of Sultan Ahmad and was, therefore, not entitled to inherit the estate of the deceased. Reliance was placed on Rasul Bakhsh v. Mst. Bholan and others ILR 13 Lahore 780, Mst. Zahida Shaheen and another v. The State and another 1994 SCMR 2098, Allah Dad v. Mukhtar and another 1992 SCMR 1273, Federation of Pakistan v. Mst. Tahira Begum 1994 SCMR 1740, 'Muhammad Hanif and others v. Mukarram Khan and others PLD 1996 Lahore 58. Mst. Batool Bibi v. Muhammad Hayat and another 1995 CLC 724, Farah Khan v. Tahir Hamid Khan and another 1998 MLD 85, Zubaida Khatoon v. Administrator, Union Council Uch Gillani, Tehsil and District Bahawalpur and another 1996 MLD 1689, Saiyid Rashid Ahmad and another v. Mst. Anisa Khatun and others AIR 1932 PC 25 and Mirza Qamar Raza v. Mst.
Tahir Begum, etc. PLD 1988 Kar. 169.
4. On the other hand the learned counsel for the respondents relied on Mushtaq Ahmad and another v. Mst. Sat Bharai and 5 others 1994 SCMR 1720. He also relied on Verses Nos.226 and 231 of Sura-Al-Baqarah and Verse 49 of Surat-Al-Ahzab to contend that in accordance with the Qur' anic Injunctions, even a triple divorce announced in one sitting operates as a single divorce and the husband-could retract it till expiry of the period of Iddat'. Therefore, Mst. Dhami continued to remain the widow of Sultan Ahmad.
5. The submissions made by the learned counsel have been considered. This case is fully covered by the judgment in the case of Mushtaq Ahmad and another, supra. The view taken by this Court in the case of Abbas Khan and 3 others v. Mst. Sat Bherai and 2 others 1993 CLC 2181 was affirmed. In the said case the husband had divorced his were on 19-5-1969 and died on 14-6-1969. The Chairman of the Union Council declared that the Talaq did not become effective during the lifetime of the husband. The Honourable Supreme Court, relying on their previous judgment in the case of Muhammad Sallah--ud-Din Khan v. Muhammad Nazir Saddiqui and others 1984 SCMR 583, found that the 'Talaq had not become effective in terms of section 7 of the Muslim Family Laws Ordinance, 1961 because the husband had died within the period of 90 days.
6. The judgments cited by the learned counsel for the petitioners have been considered. In the case of Rasul Bukhsh, supra, it was held that when it was found that the husband had no intention to divorce, it was not effective. Reference in this case was also made to Saiyid Rashid Ahmad, supra, in which it was observed that where there is a divorce by words showing a clear intention that the divorce shall immediately become irrevocable it is binding. The case of Mst. Zahida Shaheen, arose out of criminal prosecution of a married couple. The case of the appellants before the Honourable Supreme Court was that after the divorce, they had married after the period of 'Iddat' of the lady.
The case of Allah Dad, supra also arose out of criminal prosecution. It was observed that a divorce becomes effective even in the absence of a notice to the Chairman under section 7 of the Muslim Family Laws Ordinance. It was observed that the accused in the criminal case had contracted marriage after the completion of the period of ' Iddat' after the first husband had divorced the lady.
In the case of Federation of Pakistan, the parties belonged to Fiqah Jaffaria and according to the said Fiqah a triple divorce in one sitting is not recognized as valid. The case of Muhammad Hanif, supra also arose out of a criminal prosecution. The said case also involved remarriage after divorce from the first husband. It was observed that notice of divorce under section 7 was not mandatory. In the said case, after the were had orally been divorced, she had contracted second marriage. In the case of Farah Khan, supra, the view taken by this Court was that even in the absence of notice to the Chairman under section 7 'Talaq' would become operative in accordance with Qur'anic Injunctions. In the case of Zubaida Khatoon, the view taken by this Court was that a triple divorce becomes binding and husband has no right to revoke it in accordance with the principles enshrined in the Holy Qur'an and Sunnah and, therefore, the provisions of section 7 of the Muslim Family Laws Ordinance, 1961 would give in. The case of Mirza Qamar Raza related to divorce under Fiqah Jaffaria.
7. In view of the importance of the question and the difference of opinion even amongst the Sunni Schools of thought as to the binding nature of triple divorce in one sitting, I am recording my views hereunder.
8. The Holy Qur'an never intended a divorce to act as a device of instant magic whereby a woman taken by a man to share his life with all its pleasures, sorrows, sufferings and happiness is made to disappear for all times to come from his home and heart. The difference of opinion on the validity of instant divorce through triple Talaq and the ensuing escalating vice evoked "Legislative compassion" which expressed itself in the form of section 7(3) of the West Pakistan Muslim Family Laws Ordinance, 1961, providing for revocation of Talaq within a period of ninety days. The question is whether it is permissible in accordance with the Injunctions of Qur'an, even if the said provision was not there.
9. The said provision is not in conflict with the Injunctions of the Qur'an. The contrary view is only a blurred conception of the commandments of the Almighty Allah. This is primarily due to the reason that moral principles originally adopted and system found thereon by the passage of time became so rigid that it lost all flexibility.
10. Divorce has been disdained by the Holy Qur'an to a very high degree. A divorcee, pushed into the male dominated society, is woven into multiple vices, social and economic, including an indelible stigma to haunt her for whole of her life and instances are not wanting when a woman, driven to a state of penury, with none to look after, may have to barter away her soul for her body.
11. The word 'Talaq' is an Arabic word which means 'undoing of or a release from a knot'. The commandments of Almighty Allah regarding Talaq are found in Verses Nos.226 to 232 of Surat-al- Baqarah, and Verse No.1 of Surat-al-Talaq which are clear and unequivocal. Verse No.233 of Surat- al---Baqarah and Verse No.49 of Surat-al-Ahzab also relate to Talaq, while Verse No.35 of Sura- an-Nisa is also relevant.
12. The original text of the Holy Qur'an on the subject and sayings and doings of the Prophet (p.b.u.h) are refreshingly "modern and rational", but unfortunately rigid approach and individual disbelief has shut the door of reason. Syed Amir Ali in the "Spirit of Islam" says "The Islam of Muhammad contains nothing which itself bars progress or the intellectual development of humanity" (p.435-1953). He goes on to say:-- "The Prophet inculcated the use of reason, his followers have made its exercise a sin. He impressed on them to go in quest of knowledge to the land of heathens. They do not take it even when it is offered to them in their own homes. "
13. Badar-ud-Din Taybji in "The Self in Secularisim" (p.104-105-1971) noted the following words of the Holy Prophet (p.b.u.h):-- "When Muaz was being sent as a Judge to Yemen, the Prophet asked him: According to what shalt thou judge- Muaz replied: According to the scriptures of God's Book.
And if thou findest nought therein?
According to the traditions of the Massanger of God.
And if thou findest nought therein?
Then I shall interpret with my reason, Muaz replied.
Thereupon, the Prophet said Praise to God who has favoured the messenger of His Messenger, with what His Messenger is willing to approve."
14. Unfortunately despite clear Commandments on the subject, substantial reforms through judicial activism is an unexploited field in our country because of inflexible approach of different schools of thought. They do not believe in rationalizing and modernizing the system (within the limits set out by Almighty Allah). And, therefore, the text of the Holy Qur'an has been understood and interpreted out of context.
15. With this prelude English translation of the relevant Verses from Surat-al-Baqarah, Surat-an- Nisa and Surat-al-Talaq from the Holy Qur'an, published by King Fahd Holy Qur'an Printing Complex, Al-Madinah, Al-- Munawarah are reproduced hereunder:-- SURAT-AL-BAGARAH 2.226 "For those who take An oath for abstention From their wives, A waiting for four months Is ordained, If then they return, Allah is Oft-forgiving, Most Merciful"
2.227 "But if their intention Is firm for divorce, Allah heareth And knoweth all things."
2.228. "Divorced women shall wait concerning themselves For three monthly periods And it is not lawful for them To hide what Allah Hath created in ,their wombs, If they have faith And their husbands Have the better right To take them back In that period, if They wish for reconciliation And women shall have rights, Similar to the rights Against them, according To what is equitable; But men have a degree Over them And Allah is Exalted in Power, Wise."
(Underlining is mine)
2.229 "A divorce is only Premissible twice; after that, The parties should either hold Together on equitable terms, Or separate with kindness, It is not lawful for you,
(Men) to take back Any of your gifts (from your wives), Except when both parties Fear that they would be Unable to keep the limits Ordained by Allah If ye (judges) do indeed Fear that they, would be Unable to keep the limits Ordained by Allah, There is no blame on either Of them if she give Something for her freedom These are the limits Ordained by Allah; So do not transgress them If any do transgress The limits ordained by Allah, Such persons wrong (Themselves as well as others)."
(Underlining is mine)
2.230. "So if a husband Divorces his were (irrevocably), He cannot after that, Remarry her until After she has married Another husband and He has divorced her, No blame on either of them If they reunite, provided They feel that they Can keep the limits Ordained by Allah, Such are the limits, Ordained by Allah, Which He make splain To those who know."
2.231. "When ye divorce Women, and they (are abut to) fulfil The term of their 'Iddat')
Either take them back On equitable terms Or set them free On equitable terms; But do not take them back To injure them, (or) to take Undue advantage; If any one does that, He wrongs his own soul, Do not treat Allah's Signs As a jest, But solemnly rehearse Allah's favours on you, And the fact that He Sent down to you The Book And Wisdom, For your Instruction, And fear Allah."
And know that Allah Is well acquainted With all things."
(Underlining is mine)
2.232. When ye divorce Women, and they fulfil The term of their ('Iddat), Do not prevent them From marrying Their (former) husbands, If they mutually agree On equitable terms.
This instruction Is for all amongst you, Who believe in Allah And the Last Day.
That is (the curse Making for) most virtue And purity amongst you.
And Allah knows, And ye know not.
Surat-An-Nisa 4.35. "If ye fear a breach Between them twain, Appoint (two) arbiters, One from his family, And the other from hers; If they seek to set things right, Allah will cause Their reconciliation; For Allah hath full knowledge, And is acquainted With all things."
Surat-Al-Talaq 65.1. "O Prophet When ye Do divorce women, Divorce them at their Prescribed periods, And count(accurately)
Their prescribed periods; And fear Allah your Lord; And turn them not but Of their houses, nor shall They (themselves) leaves Except in case they are Guilty of some open lewdness; Those are limits Set by Allah and any Who transgresses the limits Of Allah, does verily Wrong his (own) soul; Thous knowest not if Per chance Allah will Bring about thereafter Some new situation."
(Underlining is mine).
16. In the commentary of Holy Qur'an published by King Fahd Holy Qur'an Printing Complex, Al- Madina Al-- Munawarah, the following views have been recorded:-- "Verses 225-27 should be read together with verse 224. The latter, though it is perfectly general.
Leads up to the other three.
The Pagan Arabas had a custom very unfair to women in wed-lock, and this was suppressed by Islam. Sometimes, in a fit of anger or caprice, a husband would take an, oath by Allah not to approach his were. This deprived her of conjugal rights, but at the same time kept her tied to him indefinitely, so that she could not marry again. If the husband was remonstrated with, he would say that his oath by Allah bound him. Islam in the first place disapproved of the thoughtless oaths, but insisted on proper solemn intentional oaths being scrupulously observed. In a serious manner like that affecting a were, if the oath was put forward as an excuse, the man is told that it is no excuse at all. Allah looks to intention, not mere thoughtless words. The parties are allowed a period of four months to make up their minds and see if an adjustment is possible. Reconciliation is recommended, but if they are really determined against reconciliation, it is unfair to keep them tied indefinitely." (Emphasis supplied).
As to Verse No.229 "Where divorce for mutual incompatibility is allowed, there is danger that the parties might not act hastily, then repent, and again wish to separate. To prevent such capricious action repeatedly, a limit is prescribed. Two divorces (with a reconciliation between) are allowed. After that the parties must definitely make up their minds, either to dissolve their union permanently, or to live honourable lives together in mutual love and forbearance to "hold together on equitable terms", neither party worrying the other nor grumbling nor evading the duties and responsibilities of marriage.
As to Verse No. 231: "The termination of a marriage bond is a most serious matter for family and social life. And every lawful device is approved which can equitably bring back those who have lived together, provided only there is mutual love and they can live on honourable terms with each other. If these conditions are fulfilled, it is not right for outsiders to prevent or hinder re-union. They may be swayed by property or other considerations. This verse was occasioned by an actual case that was referred to the Holy Prophet in his lifetime. "
17. Verse No.229 contemplates the third divorce and in that case it will be irrevocable. Verses Nos.228-229 and 231 also provide for a reunion during the period of Iddat. Verse No. 1 of Surat-al- Talaq, mandates that a divorcee is not to be turned out of the house during the period of Iddat. This clearly contemplates scope for reconciliation. Proceedings of reconciliation are also provided in Verse No.35 of Surat-An-Nisa. Maulana Muhammad Ali has explained this verse as follows:-- "This verse lays down the procedure to be adopted when a case for divorce arises. It is not for the husband to put away his were; it is the business of the Judge to decide the case. Nor should divorce cases be made too public. The Judge is required to appoint two arbiters, one belonging to the were's family and the other to the husband's. These two arbiters will find out the facts, but their objective must be to effect a reconciliation between the parties. If all hopes of reconciliation fail, a divorce is allowed, but the final decision for divorce rests with the Judge who is legally entitled to pronounce a divorce. Cases were decided in accordance with the directions contained in this verse in the early days of Islam."
18. The views of various Schools of Thought on triple 'Talaq' are as under:-- (i)Fiqah Jaffaria does not recognize it valid.
(ii)Malikies also share the same view.
(Mohmodan Law by Amir Ali, Vol.II 7th Edition)
(i.e)Shafies also share the same view; (iv)Hanblies recognize triple divorce as one if marriage is consummated and it pronounced in a particular form.
(P/91 Muslim Law of Divorce by K.N. Ahmed (1984).
19. Chapter 4 of the Muslim Law of Divorce by K.N. Ahmad (1984) provides an instructive reading on the subject of divorce. At page 86, it is noted as follows:-- "Ibn 'Abbas has reported that the pronouncement of three divorces at one and the same time was treated as one divorce during the time of the Prophet (peace be on him), the first Caliph and during the first two or three years of regime of the Second Caliph. But the Second Caliph found that people used to pronounce divorces wantonly many times and in order to discourage this undesirable practice he introduced the rule that pronouncement of three divorces at one and the same time shall be treated as three divorces or a final or Mughallazah divorce."
And, at page 89 the following views have been expressed:-- "Islam has permitted the dissolution of marriage in case of necessity, but dissolution has been strongly disapproved of and discouraged. A divorce in the proper form, laid down in the Qur'an, becomes final and absolute only after the observance of Iddah and so ample time is given to a husband to think over the matter coolly and to retrieve his action if he so decides. The main idea in the procedure for divorce, as laid down by Islam, is to give the parties an opportunity for reconciliation. If the three pronouncements are treated as a Mughallazah divorce, then no opportunity is given to the spouses or the husband to retrieve a hasty divorce. This rule was introduced long after the time of the Prophet (peace be on him) and it renders ineffective the measures provided in the Qur'an against hasty action thereby depriving people of 2 chance to change their minds, retrieve their mistakes and retain their wives. The object of Caliph Umar in treating it as a Mughallazah divorce was clearly to stop people from wanton repetitions of divorce and from treating the matter of divorce in a light and non-serious way. It must have suited the needs of his own time, but the practice in the modern times has resulted in a great d6al of harm."
20. I am, therefore, of the view 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.
21. For what has been stated away, find no merit in this revision petition which is, accordingly, dismissed.