2019-10-10

Tags:

Citation Name : 2016 YLR 15 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Syed MUHAMMAD ALI RAZA
Side Opponent : PROVINCE OF PUNJAB, through DCO Lahore

Ss. 7 & 8—West Pakistan Rules made under Muslim Family Laws Ordinance, 1961, R.3(b)—Constitution of Pakistan, Art. 199—Constitutional petition—Divorce—Shia law—Issuance of certificate for effectiveness of divorce—Scope—Shia personal law of divorce was not so strict so as to make a woman slave of the man who would always remain unable to get divorce without his permission—Wife who had been delegated the right of divorce by the husband could pronounce divorce by sending a notice in writing to the Chairman Union Council—Such notice had to be sent to the Union Council of the union where wife to whom Talaq had been pronounced was residing at the time of the pronouncement of Talaq—Notice had to be sent to the Union Council where Nikah was registered in case of divorce by the wife with delegated powers by the husband—No illegality had been committed while issuing certificate of effectiveness of divorce—Constitutional petition was dismissed in circumstances.

——————————————————————————————————————

Citation Name : 2015 MLD 73 PESHAWAR-HIGH-COURT
Side Appellant : SHAH DARAZ KHAN
Side Opponent : Mst. NAILA

Dower—“Prompt” and “deferred dower”—Object and scope—“Sunni” and “Shia ” Fiqah—Dower was divisible into two parts i.e. prompt dower and deferred dower—Prompt dower was realizable by the wife at any time before or after consummation on her demand while deferred dower was payable on divorce or death of the husband—Husband should pay immediately the entire amount of dower whether prompt or deferred if he had contracted second marriage without prior permission of wife and if same was not paid, then such would be recoverable as arrears of land revenue—Classification of dower as prompt and deferred had been made for convenience of the parties—Normally women did not demand payment of full dower at the time of Nikah and only a portion of dower was paid before consummation of marriage and remaining dower was deferred to be paid later which did not mean that either same was waived or was to be treated as deferred till dissolution of marriage—Deferred dower was a sort of guarantee of a woman against ill-treatment, non-maintenance, desertion or any other abnormality in the matrimonial life including rash and arbitrary divorce —When at the time of marriage it was not settled whether dower was to be prompt or deferred then according to Shia Law whole dower would be treated as prompt and according to Sunni Law part of dower would be prompt and part as deferred—Prompt dower was payable during subsistence of marriage but where no time was stipulated deferred dower did not become prompt merely because wife had demanded the same rather same would be payable in the eventuality of dissolution of marriage either by death or divorce .

——————————————————————————————————————

Citation Name : 2013 MLD 1711 FEDERAL-SHARIAT-COURT
Side Appellant : KHAWAR IQBAL
Side Opponent : FEDERATION OF PAKISTAN through Secretary M/o Law and Justice, Islamabad


S. 8—Constitution of Pakistan, Art. 203-D—“Talaq-e-Tafveez—Husband delegating his power of talaq to his wife—Repugnancy to Injunctions of Islam—Fiqh-e-Jaafaria—According to Fiqh-e-Jaafaria, Talaq-e-Tafveez was not allowed—Such type of delegation of power by a husband to his wife, in view of Fiqh-e-Jaafaria, was not permissible—Divorce, according to Fiqh-e-Jaafaria, became effective only when it was uttered by a husband in presence of witnesses by using specific “seeghas “—Shariat petition was dismissed accordingly.


Citation Name : 2014 PLD 60 PESHAWAR-HIGH-COURT
Side Appellant : Mst. SALMA BIBI
Side Opponent : MUHAMMAD IQBAL

Dower—“Prompt” and “Deferred”,—Distinction—Amount of dower was usually split into two parts, one was “prompt” which was payable on demand and other was “deferred” which was payable on dissolution of marriage by death or divorce —Where it was not settled at the time of marriage whether dower was prompt or deferred, then according to Shia law the whole dower was prompt but according to Sunni law part was prompt and part was deferred and same would be regulated by custom and in absence of the same, by the status of the parties and the amount of dower settled—Distinction between prompt and deferred dower would disappear and wife would be entitled to the remaining dower whether prompt or deferred in case of dissolution of marriage—Muajjal dower was prompt, immediately and exigible whereas muwajjal was deferred—Wife was entitled to demand so much of her dower as was exigible but she was not entitled during the continuance of marriage to demand the deferred portion of the dower.

————————————————————————————————————-
Citation Name : 2014 MLD 254 KARACHI-HIGH-COURT-SINDH
Side Appellant : Syed ASAD RAZA NAQVI
Side Opponent : Mst. SAIMA FATIMA


S.7—Constitution of Pakistan, Art. 199—Constitutional petition— divorce, pronouncement—Fiqah Jafria—Parties were husband and wife inter se and dispute between them was regarding pronouncing of divorce —Grievance of husband was that divorce was not properly pronounced and executed hence was invalid—Validity—In divorce deed there was no mention that husband or authorized person recited Seegha or pronounced Talaq, orally in a set form of Arabic words to wife by her name—It was mentioned in certificate of Talaqnama that it was decided to issue Seegha of Talaq on behalf of husband but it was not mentioned therein that such decision was acted upon and followed by pronouncement of oral Talaq or recitation of Seegha/Khutba Talaq—Such certificate of Talaqnama did not say about pronouncement of Talaq in prescribed form in presence of witnesses, though names of two witnesses were mentioned therein with their signatures like attesting witnesses of Talaqnama but for its pronouncement, their evidence was not recorded in court—Though Talaqnama was followed by divorce deed but it also did not fulfil requirements of earlier document—divorce pronounced by husband to wife was not valid Talaq or valid repudiation in accordance with requirement of Fiqah Jafria and, therefore, the same was not effective under Shia doctrine of Talaq—As valid Talaq was precondition for exercise of jurisdiction under S.7(1) of Mulsim Family Laws Ordinance, 1961, or initiating proceedings under it and as Talaq in question was invalid, therefore, wife was not liable to act upon such invalid Talaq and as such any proceedings, if initiated, on the basis of invalid Talaq would be illegal and without lawful authority and of no binding effect—Husband was at liberty to pronounce fresh Talaq to his wife keeping in view the requirements prescribed under Shia law and thereafter, wife would act in accordance with without any delay—Petition was disposed of accordingly.

—————————————————————————————————————–