' TALAAT QAYUM QURESHI, J.---Mst. Isma t Nigar, the petitioner was married with respondent No, 1 on 29-3-1984. The relations between the spouses became strained, hence the petitioner filed suit for recovery of maintenance at the rate of Rs,1,000 per month with effect from 26-4-1995. It was during the pendency of the said suit that the respondent sent a divorce deed dated 13-6-1995 to petitioner. The learned trial Court however, passed decree for maintenance at the rate of Rs,500 per month in favour of petitioner vide judgment and decree dated 31-5-2000. Feeling aggrieved with the said judgment and decree, respondent No,1 filed Appeal No,177 of 2000 in the Court of learned Additional District Judge, Peshawar, which was allowed vide judgment and decree dated 9-6-2003 and the judgment and decree passed by the learned trial Court was set aside. She was however, held entitled to recover maintenance from respondent No, 1 at the rate of Rs, 500 per month with effect from 26-4-1995 to 13-9-1995. The petitioner through writ petition in hand has called in question the judgment and decree passed by the learned Appellate Court dated 9-6- 2003.
2. Miss Farhana Marwat, Advocate the learned counsel representing the petitioner argued that the parties were Shias and they were governed by the Shia Laws and the divorce deed dated 13-6-1995 sent by respondent No,1 was not in accordance with Shia Law because as per the law governing their sect, it was necessary that the divorce had been pronounced and recited in Arabic words.
Reciting the specific "Khutba-e-Talaq" in presence of two witnesses as well as wife was necessary, which was not done, therefore, the divorce deed sent by respondent was not in accordance with Shia Law, by this fact was not properly appreciated by the learned Appellate Court. The argument of the learned counsel for the petitioner we are Afraid, has no force at all. The requirement of valid Talaq under. Shia Law is that it shall have no effect unless it is pronounced strictly in accordance with Shia Law, in Arabic words in presence of two adult male witnesses and the wife but when the presence/attendance of the wife cannot be procured, then the husband can pronounce the Talaq in specific Arabic words which is known as "Khutba Talaq", but in presence of two male witnesses and the same can be reduced into writing and forwarded to wife or it may be intimated to her otherwise.
3. Amir Ali in his book Muhammadan Law, Vol.II, Seventh Edition has stated Shia Doctrine of Talaq as follows:-- "They do not allow a Talaq to be given in writing nor in any language other than Arabic when there is ability to pronounce the words necessary for a valid repudiation...
' Even an absent husband cannot effect a valid Talaq in writing. He must pronounce the words in the presence of the witnesses, and the fact of his doing so may be recorded in writing, which may be forwarded to the wife or it may be intimated to her otherwise."
' In this regard reference is made to Saksena's "Muslim Law as administered in British India" who has commented as follows:-- "Under Shia Law, a Talaq is of no effect unless it is pronounced:
(1) Strictly in accordance with Sunna.
(2) In Arabic terms.
(.3) In the presence of at least two adult male witnesses. "
4. In the case in hand, statement of Muhammad Askari, D.W. 1 was recorded and it is in his statement (Muhammad Askari D.W.-1) who was 'Imam-e-Masjid'
' A of Imamia Mosque, Wah Cantt., that the Talaq was pronounced by respondent No,1 in accordance with Shia Law. This witness had in fact solemnized Nikah of the parties. Nikahnama was placed on file as Exh.P.W.-1/1. He stated that according to 'Fiqha Jaffaria' the husband could authorise a scholar by appointing him as Wakeel and empower him to divorce his wife in the manner that "Khutba Talaq" be pronounced by the said scholar in the prescribed Arabic words (Sighas).
5. A similar question came up for hearing in Mirza Qamar Raza v. Mst. Tahira Begum etc. PLD 1988 Kar.169 in which it was held:-- "Regarding pronouncement of Talaq in appropriate words, that is the Sighas in set form of Arabic language the rule, according to the extracts quoted above, seems to be that Talaq is to be effected in Arabic language, in the words appointed for the purpose. A Vakil, agent, may also be appointed for the purpose of pronouncing the Sighas in Arabic language. But the said rule does not appear to be inflexible. The husband can pronounce Talaq in any other language known to him, as is done in the case of marriage, under the Shiah Law. After all, the physical and intellectual impediments may also provide an exception to the rule.
' Applying the above tests to the facts of the case before me, admittedly, the wife was not present at the time of pronouncement of Talaq, but in view of the fact that the counsel, ultimately did not stress upon his submission about the presence of the wife as one of the essential conditions to the validity of Talaq under the Shiah law, it need not pursue any further."
6. The respondent No,1 had authorised Muhammad Askari D.W. 1, who had not only read "Khutba Talaq" in specific Arabic words in presence of two witnesses but had put his signature as its marginal witness on' divorce deed Exh.P.A.3. At the time of pronouncement/ recitement of "Khutba Talaq", the respondent No,1 was also present in addition to two witnesses and he had put his signature on the divorce deed Exh.P.A.3, therefore, the requirements of Shia Law were fully complied with. No other point was urged before us. The learned Additional District Judge has rightly appreciated this position and we have not been able to find out any illegality warranting interference in our Constitutional jurisdiction. Resultantly, the writ petition is dismissed in limine.