PLJ 2024 Lahore (Note) 43
Present: Ch. Muhammad Iqbal, J.
DAWOOD
AHMAD--Petitioner
versus
ADDITIONAL
DISTRICT JUDGE, LAHORE etc.--Respondents
W.P. No.
231109 of 2018, heard on 22.12.2023.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII R.
11--Muslim Family Laws Ordinance, (VIII of 1961), S. 7--Divorced--Condition to
payment of specific penalty in lieu of divorce--Unconvenanted right--Validity
of condition--The petitioner had an uncovenanted right to pronounce divorce if
so desire and placing of clog in said right, was against principles of Islamic
Law-- The decisions of Courts below suffered from mis-application of law, as
such, same were not sustainable in eyes of law and were liable to be set-aside
and High Court was well within jurisdiction to reversed illegal and perverse
concurrent findings.
[Para
5 & 7] B & D
2015 SCMR 1708, PLD 2011
SC 260, 2022 CLC 24, UBR (1915) 11, 53, 2021 CLC 1512 ref. 2016 SCMR 24, 2002 SCMR 38.
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 7--Talaq--A husband is authorized or is at liberty to
pronounce Talaq to his wife. [Para 5] A
2022 CLC 729 ref.
Duty of Court--
----It was duty
of Court firstly to decide maintainability of suit as per law and if suit is
not maintainable then proceedings of suit shall be set at rest infinitum as it
is settled law that such like cases should be burried in inception to save precious
time of Courts and public.
[Para
6] C
2002 SCMR 338 & 2016
SCMR 24 ref.
Mr. Shahid Mahmood Minhas, Advocate for Petitioner.
Mr. Muhammad Tariq Malik, Advocate for Respondent No. 2.
Date of hearing: 22.12.2023.
Judgment
Brief facts of the case are that Respondent No. 2 /plaintiff
filed a suit for recovery of 300-tolas gold or in alternate the amount of the
same against the petitioner/defendant contending therein that her marriage was
solemnized with the petitioner on 21.10.2001. Out of this wedlock, minor namely
Ibrahim was born who is in the custody of Respondent No. 2. At the time of
marriage dower was fixed
Rs. 10,00,000/-, out of which Rs. 20,000/-was paid at the time of marriage and
Rs. 9,80,000/-is still payable and the pocket money was also fixed Rs. 30,000/-per
month. Petitioner/ defendant divorced the plaintiff on 30.07.2011 and as per
clause 19 of Nikahnama plaintiff prayed for recovery of 300-tolas gold or in
alternate its price.
Petitioner/defendant contested the suit by filing written
statement and raised many objections and preliminary Objection No. 4 was qua
rejection of the plaint being barred by law, Clause No. 19 of the Nikah Nama is
void condition and suit is not maintainable. Petitioner also filed an
application under Order VII Rule 11, CPC for rejection of the plaint. The said
application was contested by Respondent No. 2/ plaintiff which was dismissed by
the trial Court vide order dated 20.07.2017. Against the said order, the
petitioner filed revision petition which was dismissed by the revisional Court
vide order dated 03.05.2018. Hence, this writ petition.
2. Learned counsel for the petitioner submits that clause 19 of
Nikah Nama is against the injunctions of Islam as no condition can be imposed
in the Nikah Nama regarding pronouncement of divorce. Moreover, Respondent No.
2/plaintiff filed suit for recovery only on the basis of Column No. 19 of Nikah
Nama whereas imposition of condition is illegal thus no proceedings can be
initiated in this regard. Petitioner filed an application for rejection of
plaint as the suit was barred by law and also to save the precious time of the
Court as the further proceedings of the said suit is tantamounted abuse process
of law.
3. Learned counsel for Respondent No. 2 submits that the matter
should be decided after recording of evidence, as such both orders were rightly
passed.
4. I have heard the learned counsels for the parties and gone
through the record.
5. Admittedly, marriage of the parties was solemnized on
21.10.2001. In column No. 19 of the Nikah Nama it is written as under:
19۔ شوھر
طلاق کا حق
استعمال کرنے
سے پہلے (300) تین
سو تولہ سونا
اپنی بیوی کو
ادا کرنے کا
پابند ہو گا۔
The legality and validity of the above
condition is in controversy between the parties. As per contents of the plaint,
Respondent No. 2 demanded 300-tolas gold as mentioned in Clause 19 of the Nikah
Nama in lieu of divorce given by the petitioner. Under Section 7 of The Muslim
Family Laws Ordinance 1961, a husband is authorized or is at liberty to
pronounce Talaq to his wife. In the above provision of law, it is nowhere
mentioned that such power/right of a husband regarding pronouncing of Talaq to
his wife can be stipulated with the condition to pay a specific penalty or
amount in shape of gold. As per Section 7 of the Ordinance ibid the
petitioner has an uncovenanted right to pronounce divorce if so desire and
placing of clog in the said right, is against the principles of Islamic Law.
This question has already been resolved by this Court[1] by
holding that “The respondent/plaintiff has contended that at the time of
registration of Nikah, it was mentioned in the Clause 19 that in case the
petitioner/defendant divorces the respondent/plaintiff, he will pay an amount
of Rs. 500,000/. With regard to imposition of clog on the right of a husband
qua pronouncing divorce, Allah Almighty in Holy Qur’an has delegated
uncovenanted powers to the husband to pronounce Talaq to his wife in order to
avoid any transgression of Islamic bounds. In this regard I seek guidance from
Ayat Nos. 227-228 of Surah Al-Baqarah, which is as under:
|
227. But if their intention is firm
for divorce, Allah heareth-And knoweth all things. 228. Divorced women Shall wait
concerning themselves For three monthly periods. Nor is it lawful for them To
hide what Allah Hath created in their wombs, If they have faith in Allah and
the Last Day. 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 (Of advantage) over them. And Allah is Exalted in Power, Wise. (translation by Abdullah Yusuf Ali) |
اور اگر
ارادہ کر لیں
طلاق کاتو
بیشک اللہ ہر
بات سننے والاسب کچھ
جاننے والا
ہے۔
اور طلاق
یافتہ
عورتیں روکے
رکھیں اپنے
آپ کو تین حیض تک۔
اور نہیں جائز
ہے ان کے لئے
یہ کہ
چھپائیں وہ
اس کو جو کچھ
پیدا کیا ہے
اللہ نے ان کے
رحم میں اگر
وہ ایمان رکھتی ہیں
اللہ پر اور
آخرت کے دن
پر۔ اور ان کے
خاوند زیادہ حقدار
ہیں انہیں
لوٹا لینے کے
(اپنی زوجیت
میں اس (مدت
( میں اگر وہ
چاہیں صلح کرنا۔
اور عورتوں
کے بھی حقوق ہیں
ویسے ہی جسے
ان پرہیں
(مردوں کے)
دستور کے
مطابق البتہ
مردوں کو
عورتوں پر
ایک درجہ
حاصل ہے۔ اور
اللہ غالب ہے
بڑی حکمت
والا ہے۔ اردو
ترجمہ ) مرتبہ :
مولانا سید
شبیر احمد |
Further in 01st Ayat
of Surah At-Talaq, Allah Almighty says as under:
|
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 out Of their
houses, nor shall They (themselves) leave. Except in case they are Guilty of
some open lewdness. Those are limits Set by Allah: and any who trans gresses
the limits Of Allah, does verily Wrong his (own soul: Thou knowest not if
Perchance Allah will Bring about thereafter Some new situation. (translation
by Abdullah Yusuf Ali) |
اے نبی !جب
طلاق دو تم
عورتوں کو تو
طلاق دو تم
انہیں اس طرح کہ
وہ عدت شروع
کر سکیں اور
ٹھیک ٹھیک
شمار کرو عدت
(کےزمانہ ) کا۔
اور ڈرو اللہ
سے جو تمہارا رب
ہے۔ اور نہ
نکالو تم
انہیں انکے
گھروں سے اور
نہ وہ خود
نکلیں الا یہ
کہ ارتکاب
کریں وہ کسی
کھلی بدکاری
کا۔ اور یہ
اللہ کی (مقرر
کر دہ) حدیں
ہیں۔ اور جو
تجاوز کرے گا
اللہ کی مقرر
کردہ حدود سے
تو در حقیقت
وہ ظلم کرے گا
اپنی ہی جان پر۔
نہیں جانتے
تم شاید کہ
اللہ پیدا کر
دے اس کے بعد
بھی (موافقت
کی) کوئی صورت اردو
ترجمہ ) مرتبہ :
مولانا سید
شبیر احمد |
Further guidance in
this regard can be taken from the Sunnah of Holy Prophet from Hadith No. 235 of
Bukhari Sharif, which reads as under:-
اسماعیل
بن عبد اللہ
مالک، نافع،
عبد اللہ بن
عمر سے روایت
کرتے ہیں کہ
انہوں نے اپنی
بیوی کو رسول
اللہ صلی اللہ
علیہ وسلم کے
عہد میں بحالت
حیض طلاق دیدی
حضرت عمررضی
اللہ تعالی
عنہ نے نبی ﷺ سے اس
کے متعلق
پوچھا، تو آپ
نے فرمایا کہ
اس کو رجوع
کرنے کا حکم
دو پھر وہ اس
کو روکے رکھے،
یہاں تک کہ
پاک ہو جائے
پھر حیض آئے
پھر پاک ہو
جائے پھر اگر
چاہے تو اس کے
بعد اپنے پاس
رہنے دے، اور اگر چاہے
تو صحبت کرنے
سے پہلے طلاق
دے یہی وہ عدت ہے
جس کے لئے
عورتوں کو
طلاق دیئے
جانے کا حکم
اللہ تعالیٰ نے
دیا ہے۔
Section 105 Chapter XII of the Code of
Muslim Personal Law (written by Dr. Tanzil-ur-Rahman, Ex-Judge of Sindh High
Court, Volume 1) the Delegation of right of Divorce (Tafwid at-Talaq) is
described which is reproduced as under:
Delegation of the
right of divorce: It is lawful for the husband to delegate to the wife the
right of effecting divorce. In that event, however, his own right of effecting
divorce shall not lapse
Even otherwise, Section 7 (1) of the
Muslim Family Laws Ordinance, 1961 deals with Talaq, which is reproduced as
under:
“S. 7 ‘Talaq.
(1) Any man who wishes to divorce his wife shall, as soon 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.”
5. From the perusal of afore-mentioned glorious references of
Holy Quran and Sunnah as well as provisions of Section 105 of the Code of
Muslim Personal Law written by Dr. Tanzeel-ur-Rehman and Section 7 of the
Muslim Family Laws Ordinance, 1961, a husband has an absolute right to divorce
his wife and in this regard no condition is described in the Sharia as well as
in the codified law. In this regard, the Hon’ble Supreme Court of Pakistan in
the case reported as Muhammad Bashir Ali Siddiqui vs. Mst. Sarwar Jahan Begum
& Another (2008 SCMR 186) has also declared that the condition/restriction
on the right of a husband to divorce his wife, is illegal. The condition if any
imposed in the Nikahnama for the award of damages on account of alleged
unjustified divorce is against the basic principle of Islamic Law. The husband
has a right to divorce his wife from his free will and no condition can be
imposed in this regard Reliance can also be placed on the cases titled as Mst.
Zeenat Bibi vs. Muhammad Hayat & 2 others (2012 CLC 837) & Muhammad
Asif vs. Mst. Nazia Riasat & 2 others (2018 CLC 1844).”
In a similar case, a lady filed suit for recovery of Rs. 10,00,000/-on
the basis of an entry in the Nikah Nama as well as also on the basis of
agreement between the parties that in case of divorce, the husband shall pay
rupees one million (Rs.10,00,000/-) to her. The Family Court decreed the suit
and said judgment was upheld by this Court, however, the Hon’ble Supreme Court
of Pakistan allowed the appeal[2]
and set aside the judgments of the lower fora holding the power of a husband to
pronounce divorce as un-stipulated. This Court has also held in a case[3]
that any condition contained in Nikahnama against the principles of Islam or
Shariah is not binding upon the parties even if it has been made with the
consent of the parties. In Hasan Chanea’s case[4] it
was also held that a husband has an absolute right/power to divorce his wife
and no condition can be imposed on exercising such right. Further reliance is
made to Rukhsana Ambreen’s case.[5] Mr.
Aziz Ahmad in Para No. 238 of his great book “Islamic Law in Theory and
Practice” [foreword by Hon’ble Mr. Justice S.A. Rahman, former Chief
Justice of West Pakistan] has also observed that a Muslim who is a major and
has a sound mind may divorce his wife under the Muslim Law at any time without
assigning any reason.
6. Learned counsel for Respondent No. 2 has raised objection
that the application for rejection of plaint is not maintainable, as the
provisions of, CPC are not applicable in family matters, thus the suit cannot
be dismissed under above provisions rather the proceedings of the Family Courts
are governed by the general principle of equity, justice and fair-play, suffice
it to say that it is the duty of the Court firstly to decide the
maintainability of the suit as per law and if suit is not maintainable then the
proceedings of suit shall be set at rest infinitum as it is settled law that
such like cases should be burried in the inception to save the precious time of
the Courts and public.[6]
As such the objection of learned counsel for Respondent No. 2 is without any
force and same is hereby repelled.
7. As discussed above, the decisions of the Courts below suffer
from mis-application of law, as such, the same are not sustainable in the eyes
of law and are liable to be set-aside and this Court is well within
jurisdiction to reverse the illegal and perverse concurrent findings. [7]
8. In view of above, this writ petition is allowed.
Order dated 20.07.2017 passed by the learned Civil Judge, Lahore and order
dated 03.05.2018 passed by the learned Additional District Judge, Lahore are
hereby set aside and application filed by the petitioner/defendant for
rejection of plaint of respondent/plaintiff is accepted.
Consequently, the plaint filed by the respondent/plaintiff is hereby rejected
under Order VII Rule 11 C.P.C. No order as to costs.
(Y.A.) Petition allowed
[1]. Muhammad Sajjad vs. Additional District
Judge, Jalalpur Pirwala, District Multan 2 Others (2022 CLC 729).
[2]. Syed Mukhtar Hussain Shah vs. Mst. Saba Imtiaz
& Others (PLD 2011 SC 260).
[3]. Mujahid Kamran vs. Mst. Saira Aziz &
2 Others (2022 CLC 24).
[4]. Hasan Chanea vs. Mi Sin (U.B.R (1915), II,
53.
[5]. Rukhsana Ambreen vs. District &
Sessions Judge, Khushab and 2 others (2021 CLC 1512).
[6]. S.M.Shafi Ahmad Zaidi through Legal Heira
V’s. Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCMR 338) and Haji
Farman Ullah v. Latif-ur-Rehman 2015 SCMR 1708).
[7]. Nazim-ud-Din & Others Va. Sheikh
Zia-ul-Qamar & Others (2016 SCMR 24).