Talaq

2019-10-10

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Talaq-e-Tafweez ” and Haq Mehar 

Citation Name : 2016 CLCN 117 LAHORE-HIGH-COURT-LAHORE
Side Appellant : UMER NASEEM
Side Opponent : ADDITIONAL DISTRICT AND SESSIONS JUDGE LAHORE

S. 5, Sched.—Muslim Family Laws Ordinance (VIII of 1961), S. 8—Constitution of Pakistan, Art. 199—Constitutional petition—Suit for recovery of gold ornaments and dower—Financial background of family of wife—Effect—Alternate price of gold ornaments, determination of—Scope—“Talaq-e-Tafweez ” and “khula”—Effect—Contention of wife was that alternate price of gold ornaments was to be assessed according to the market value at the time of execution of decree but not at the time of institution of suit—Validity—Plaintiff-wife and her witnesses had corroborated the stance as stated in the plaint who were cross-examined but they remained consistent on all the material points—Scribe of receipt of gold ornaments had supported the version of wife and identified his signatures thereupon—Defendant-husband had denied the possession of gold ornaments but he had not stated that said ornaments were not given to the wife by her parents—Wife belonged to a well-to-do family having high social status and sound financial background—Wife was sole daughter of her parents and giving of seventy tola gold ornaments to her at the time of marriage was not an extraordinary matter—Gold ornaments enumerated in the plaint were given to the wife at the time of her marriage—Husband was bound to prove that gold ornaments were not in his possession—No independent witness was produced by the husband to prove that wife had taken gold ornaments with her—Gold ornaments which were given to the wife at the time of her marriage were in the possession of husband—Alternate price of gold ornaments in case of decree was to be determined at the time of execution of the same—Both the courts below had committed illegality and irregularity while determining alternate price of gold ornaments prevalent at the time of institution of suit—Wife was held to be entitled for recovery of gold ornaments as prayed for or in the alternate their market value prevailing at the time of execution/satisfaction of decree—Findings recorded by the courts below to such extent were modified—Rupees 1,00,000 was fixed as deferred dower at the time of Nikah of the parties—Once a person to whom the power of divorce was delegated had pronounced divorce the said power so delegated would become irrevocable and same would operate as Talaq of wife by husband—Said delegated power could not be equated with khula depriving the wife from claiming her dower—Both the courts below had erred in law while declining the prayer of wife for recovery of deferred dower—Husband could not prove that he had paid dower during the existence of marriage and wife was entitled for recovery of the same—Constitutional petition was accepted in circumstances.

 

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Citation Name : 2013 CLC 1625 PESHAWAR-HIGH-COURT
Side Appellant : SAJID HUSSAIN TANOLI
Side Opponent : NADIA KHATTAK


S. 5, Sched.—Muslim Family Laws Ordinance (VIII of 1961), Ss.7 & 8—Constitution of Pakistan, Art.199—Constitutional petition—Talaq-e-Tafweez—Scope—Suit for recovery of maintenance allowance and dower—Contention of the wife was that due to cruel and humiliating attitude of the husband she was compelled to exercise her right of delegation of divorce—Validity—Wife was entitled to exercise her right of Talaq-e-Tafweez and to be separated from her husband—Same could not be termed as Khula—Talaq once pronounced would be effective after expiry of 90 days—Nikah Nama with all its contents had been admitted by the husband—Right of divorce had been delegated to the wife by the husband—No condition or contingency existed in the Nikah Nama—Wife had exercised delegated power of divorce and had repudiated herself through notice duly served upon the husband and copy of which was sent to Union Council in view of Ss.7 & 8 of Muslim Family Laws Ordinance, 1961 stating therein that by virtue of Talaq-Tafweez it was not possible for her to live with the husband as wife—Notice was exhibited without any objection on the part of husband—Once a person pronounced divorce, the power so delegated became irrevocable and such would operate as Talaq of the wife by the husband—Dissolution of marriage in the present case could not be considered as divorce by khula—Husband admitted that the dower was rightly fixed but failed to prove the payment of the same—Both Courts, in circumstances, had rightly decreed the amount of dower in favour of wife—Constitutional petition was dismissed.

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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—Talaq-e-Tafveez served as a check on a man who might be cruel to his wife, who might not maintain her in an appropriate manner, who might neglect his children/wife, or, one who was missing and his whereabouts were completely unknown or was far away for very long periods of time without providing his wife with finances required for her maintenance but still does not agree to give his wife the right to khula (separation) or refused to divorce her at any cost—Under Islamic law, power to give divorce, though belonged to the husband, but he could delegate such power to his wife or to a third. person, either absolutely or conditionally and either for a particular period or permanently—Section 8 of Muslim Family Laws Ordinance, 1961 specifically provided for such kind of talaq, known as Talaq-e-Tafveez—Person to whom such power was so delegated, could then pronounce it accordingly—Except scholars belonging to the Fiqh-e-Jaafaria, all other Muslim jurists of various schools of thought were unanimous on permissibility of Talaq-e-Tafveez, though with slight variations in its procedure—Shariat petition was dismissed accordingly.

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Citation Name : 2013 CLC 1625 PESHAWAR-HIGH-COURT
Side Appellant : SAJID HUSSAIN TANOLI
Side Opponent : NADIA KHATTAK


Ss. 7 & 8—Talaq-e-Tafweez—Scope—Kinds—Power to give divorce vested with the husband who might delegate the same to the wife or to a third person—Person to whom such power was delegated might then pronounce the divorce accordingly—Such divorce was known as “Talaq-e-Tafweez”—Delegation of power called “Tafweez” by the husband to his wife, conferred on her the power to divorce herself—Tafweez was of three kinds; Ikhtiar; Amr-ba-yed and Mashiat—Wife could not sue to enforce the authority to have been given to her but she could sue after she had given effect to it to make the husband liable for her dower or to restrain from seeking conjugal relations.