The New Nation - Internet Edition

High Court Division

(Civil Revisional Jurisdiction)

Md Abdul Matin J

ATM Fazle Kabir J

Judgment

June 28th, 2006

Nur Nabi (Md) tttt ttt. Petitioner

vs

Salima Akhter Doly ttt.

tttt Opposite Party*

Muslim Family Laws Ordinance (VIII of 1961)

Section 7

Consistent view of the superior Court is that non-compliance of provision of Section 7 will render divorce ineffective. Unless there was compliance of section 7, which is a mandatory provision of law, no divorce can be effective as per section 7 of the Muslim Family Laws Ordinance.

A careful scrutiny of section 7 of the Family Laws Ordinance shows the 90 days reconciliation period is to start from the date of the receipt of the notice by the Chairman and not from the date when it was written.

The finding of the appellate Court that the talak is not effective because section 7 has not been complied with is a correct proposition of law and is in conformity with consistent view of the superior court though seemingly in conflict with the case, reported in 48 DLR 48.

Initiation of proceeding by the chairman is equally mandatory so as to give finality to the process of divorce as per section 7. The Chairman of the Union Parishad shall constitute arbitration for the, purpose of reconciliation and the arbitration shall try to bring about such reconciliation.

In the instant case, the very notice has been disbelieved by the appellate Court and also that notice was not served in accordance with section 7 of the Ordinance, inasmuch as no copy of the notice was served upon the wife nor upon the chairman as claimed by the defendant and therefore, in the present case the question of constitution of an arbitration by the chairman never arose and therefore, the High Court Division is not called upon to decide the question as to what shall happen if the conciliation fails.

Since the petitioner deposited Taka 40,000 in the court below the petitioner-judgment debtor is not required to deposit the entire decretal amount nor decree is executable against the entire amount and, in any event, Taka 40,000 should be omitted from calculation and such amount is no longer recoverable from the defendant-petitioner and the plaintiff is entitled to withdraw the money from the court if not already with-drawn. t.. (14,15,20 and 22-23)

Azad Alam (Md) vs Jainab Khatun 1 BLC(AD) 24; Sirajuddin vs Helana Begum 48 DLR 48; Syed Ali Nawaz Gardezi vs Lt Col Muhammad Yusuf 15 DLR (SC) 9; Shafiqul Islam vs State 46 DLR 700; Abdul Aziz vs Rezia Khatlm 21 DLR 733; Abdus Sobhan Sarkar vs Md Abdul Ghani 25 DLR 227; Sirajul Islam vs Helana Begum 48 DLR 48; Allah Dad vs Mukhtar Ahmad 1992 (SCMR) 1273; Mirza Qamar Raza vs Tahira Begum PLD 1988 (Kar) 169; Bashiran vs Muhammad Hussain PLDJ988 SC 186; Syed Ali Nawaz Gardezi. vs Lt. Col, Md Yousuf 1963 PLD (SC) 51 = 14 DLR (SC) 264; Abdul Mannan vs Saturun Nessa 1970 SCMR 845; Md Salahuddin vs Md Nazir Siddiqui 1984 SCMR 853 and Junaid Ali vs Abdul Qadir 1987 SCMR 518 ref.

Abdul Quayum, Advocate-.For the Petitioner.

Md Ozair Farooq with Sk Md Morshed and Md Shakhawat Hossain, Advocates-For the Opposite Party.

Judgment

Md Abdul Malin J: This Rule was issued calling upon the opposite party to show cause as to why the judgment and decree of modification dated 17-7-2001 passed by District Judge, Noakhali in Family Appeal No. 19 of 1999 should not be set aside and or pass such other or further order or orders as to this court may seem fit and proper.

2. At the time of issuance of the Rule, this court directed the appellant to pay Taka 40,000 towards the decretal amount and it appears that the appellant has deposited 40,000 by cheque. In support of such payment, the petitioner has filed affidavit of compliance, including Annexure-E series, showing payment.

3. The opposite party as plaintiff filed Title Suit No. 18 of 1998 in the court of learned Assistant Judge and Family Court, Chatkhil for realisation of dower money and for maintenance. The suit was filed on the allegation that the marriage between the plaintiff opposite party and defendant-petitioner was solemnized on 24-1-94 at a dower fixed at Taka 2,50,000 and on the said day a Nikahnama was registered and out of the sum Taka 50,000 was shown to have been paid but the defendant petitioner did not make presentation worth Taka 50,000.

4. The case of the plaintiff is that after marriage plaintiff was not taken to the house of the defendant and the marriage was consummated in the house of the plaintiff and the plaintiff was taken to the house of defendant on 2-2-98 and during this period the defendant did not maintain the plaintiff for four years and as the defendant-petitioner got a new job in the Police Department and his father took a big amount from the plaintiff at different times being dowry and also took Taka 1,00,000 by selling the ornaments of the plaintiff-opposite party. The marriage was not a happy one and it was alleged that the plaintiff was driven out of the house of the defendant on 1-5-1998 and was physically assaulted and the plaintiff, under the circumstances, filed the above suit for realisation of Taka 3,15,000, Taka 2,00,000 as dower and Taka 75,000 as maintenance for 50 months and Taka 40,000 being the price of her ornaments and Taka l,500 as maintenance per month till she is taken back.

5. The suit was contested by the defendant petitioner by filing written statement alleging, inter alia, that the suit is not maintainable, the marriage was not held on 24-1-94 nor the dower was fixed at Taka 2,50,000, misappropriation of ornaments and other allegations were denied, it was specifically stated that the marriage was held on 4-12-1997 and the dower was fixed at Taka 16,001 and Kabinnama was registered on 3-4-98 and the petitioner divorced her on 30-4-98 and it was alleged that the Nikanama filed by the plaintiff is false and forged and fabricated and the plaintiff is not entitled to any decree.

6. The trial Court examined 5 PWs and 4 DWs and found that the marriage was solemnised on 24-1-94 but found that the Kabinnama dated 4-1-94 fabricated and also found that the amount of dower in the Exhibit 1 is not correct and he fixed the dower as per Exhibit 'Ka' at Taka 16,001 and decreed the suit in part for Taka 32,500 for maintenance and Taka 9,701 for dower was found to be the dower due and also passed a decree for maintenance for Taka 500 for sixty-five months and the Court did not decide anything about the divorce.

7. The defendant-petitioner filed Family Appeal No. 19 of 1999 before the learned District Judge, Noakhali and it appears that plaintiff- respondent filed a cross objection and the appellate Court found that the marriage was solemnised on 4-1-94 and the Court below also found that the plaintiff is entitled to decree for maintenance from 1-5-98 to 1-7-98 only and fixed the dower at Taka 1,00,000 and maintenance at the rate of Taka 1000 per month and allowed the appeal in part and allowed the cross-objection in part and decreed the suit for Taka 1,20,000 and also found that the divorce has not been affected, inasmuch as section 7 of the Muslim Family Laws Ordinance was not complied with. Being aggrieved by the judgment and decree of the appellate Court, the defendant-petitioner filed this revisional application before this Court and obtained the present Rule.

8. Heard the learned Advocates of both the sides and perused the application and the impugned judgment and decree. Mr Abdul Quayum, the learned Advocate appearing for the petitioner, submits that the appellate Court committed gross error of law in entertaining the cross-objection and erred in law in allowing the same. He further submits the finding of the Court that the marriage was held on 24-1-94 is contrary to the very finding of the trial Court that the Kabinnama of the same is fabricated. He further submits that the Court below did not appreciate that the marriage soJemnised on 24-1-91 but the Kabinnama on the date is fabricated and relied upon some letters not referred to in the plaint and also relied upon evidence of PWs who supported Exhibit 1 and thus committed gross error of law in decreeing the suit. He lastly submits that the decree of the total amount of dower money is erroneous in view of the fact that the Court held that the marriage is still subsisting.

9. Mr Md Ozair Farooq with Mr Sk Md Morshed and Mr Shakhawat Hossain, the learned Advocates appearing for the opposite party, have taken us through the judgment and evidence on record and submitted, marriage having been admitted by both the sides, both the Courts rightly found that the marriage was held on 21-1-1994 and in view of the facts that both the Courts below disbelieved the Nikanama of the parties. The appellate Court found the dower as per section 289 of the Mollah's Mohammedan Law which provides for proper dower. Section 289 of Mollah' s Mohammedan Law runs as follows:

"Proper" dower. If the amount of dower is not fixed (Section 286) the wife is entitled to "Proper' dower (mahr-i-misl), even if the marriage was contracted.

Marriage was contracted on the express condition that she should not claim any dower. In determing what is "proper" dower, regard is to be had to the amount of dower settled upon other female members of their father's family such as her father's sisters.

10. It appears that the appellate Court being the last Court of facts considered the evidence of PW 2 and rightly held that there having been no dower fixed or proved to have been fixed dower prevalent in the family of the plaintiff wife should be the basis of fixing of dower and he held that the dower has been fixed rightly on such evidence. On the question of maintainability of the cross-appeal, Mr Quayum, the learned Advocate for the petitioner, by referring to section 20 of the Family Courts Act, submits that other than sections 10 and 11 of the CPC no section of CPC is applicable in Family Court suit and, in support of his contention, he relied upon a decision reported in 1 BLC (AD) 24. We find no substance in the submissions that the entertainment of the cross-objection and allowing the same is beyond the authority of the family appeal Court. We are of the view that such entertainment of the cross-objection and consideration thereon has not affected other finding of the appellate Court and therefore, objection filed by the plaintiff has no bearing on decision of the Court and the impugned judgment and decree are not liable to be interfered with merely for such entertainment of the objection and allowing the same. It is a Judgment and decree of modification and the learned Advocate appearing for the opposite party has rightly referred to section 17(b) that the appellate Court against the Judgment of the Family Court has all the power of modification and correction of the impugned judgment.

11. Mr Quayum, the learned Advocate, argued that the decree against the entire dower money in the face of the marriage being subsisting is not tenable in law in view of the fact that the husband is relying upon the Exhibit 'Uma' which is a notice of divorce though not relied upon by the appellate Court below and in view of the defence that there is no marriage after so-called divorce the decree for the entire dower money cannot be questioned. We do find any illegality whatsoever on that count, Moreover, it appears that the defendant did not make any case of payment of dower money in any other manner but section 10 of the Family Laws Ordinance must hold the field and therefore, the appellate Court rightly decreed the entire dower money although holding that the marriage is still subsisting and in so holding committed no illegality.

12. It appears that the appellate Court disbelieved the defence plea of mutual separation and consequent notice thereafter and rightly held that the so-called divorce by the defendant by Exhibits 'Ga' and 'Gha' was not effective in view of the facts that the provision of section 7 of the Muslim Family Laws Ordinance was not followed.

13. It is true that in the case of Sirajuddin vs Helana Begum 48 DLR 48 a Division Bench of this Court held that no service of notice to the chairman of the Union Parishad in the process of section 7 cannot render ineffective divorce disclosed in evidence.

14. It appears that while that case was argued the earlier judgments on this point were not at all referred to. Consistent view of the superior Court is that non-compliance of provision of section 7 will render divorce ineffective. Unless there was compliance of section 7, which is a mandatory provision of law, no divorce can be effective as per section 7 of the Muslim Family Laws Ordinance. This view of ours finds support from the judgment reported in 15 DLR (SC) 9, where Pakistan Supreme Court considered the effect of section 7 of the Muslim Family Laws Ordinance which runs as under-

"37. Coming next to the important section 7 itself, it seems to us that the legislature had attempted to incorporate the Islamic Law Provisions with regard to the two forms of "Talaq us Sunnai "viz. "Talaq Ahson" and "Talaq Hasan", as far as may be, in this section. The first of them is that form in which a single pronouncement of divorce is made during a period of menstrual purity, no intercourse having taken place during that period, and is followed by a period of Iddat. The second is one in which the first pronouncement made in similar circumstances is followed by two further pronouncements in succeeding periods, no intercourse taking place at any time, during the three periods. Such a divorce becomes irrevocable on the third pronouncement. Whether the result achieved ·is in strict conformity with Islamic law is a question which does not fall within the province of this Court to determine by reason of Articles 5 and 6 of the Constitution. The section clearly contemplates a machinery of conciliation whereby a husband wishing to divorce his wife unilaterally, may be enabled to think better of it, if the mediation of others can resolve the differences between the spouses. The talaq pronounced is to be ineffective for a period of 90 days from the date on which notice under sub-section (1) of this section is delivered to the Chairman and this period is to be utilised for the attempt at reconciliation. Sub-section (6) makes it clear that even if talaq has become effective under the previous subsections, the spouses would not be prevented from re-marrying, without an intervening marriage with a third person, unless such termination is effective for the third time. All that the section requires is that the marriage in question should be dissolvable by means of a Talaq and it does not seem necessary to adopt the narrow construction contended for on behalf of the respondent, that the wife mentioned in the section must necessarily be a Pakistani citizen. To suggest, as Mr Mahmud Ali has done, that unless she is such a citizen she would have no right to appoint an Arbitrator on her behalf, under section 2(a) of the Ordinance, appears to beg the question."

38. Mr Mahmud Ali also put forward the suggestion that the word "effective," occurring in sub-section (3) of this section, means "effective against the husband only" and that if the husband failed to give the required notice to the chairman, the talaq would be effective at once. This interpretation would make the section itself wholly nugatory. All that the husband has to do then is that he should refrain from giving the requisite notice and the talaq would automatically take 'effect. This is submitted by the learned Counsel that Talaq Bidar is altogether outside the purview of the section is plainly untenable as it takes no account of the words "talaq in any form whatsoever" occurrmg in sub-section (1) of section 7.

15. This judgment of the Pakistan Supreme Court has been followed by this Court in the case of Shafiqul Islam vs State reported in 46 DLR 700 where a Division Bench of this Court held-

12. A divorce under the Ordinance is not a unilateral act of a person, rather it involves a public authority in the matter. It precludes a divorce or talaq from being effective for a period of ninety days form the date of the receipt of the notice by the Chairman. Consequently, it could be said that the marital status of the parties will not in any way change during that period. The parties in law will continue to remain husband and wife till the divorce is confirmed.

13. A careful scrutiny of section 7 of the Family Laws Ordinance shows the 90 days reconciliation period is to start from the date of the receipt of the notice by the Chairman and not from the date when it was written.

16. In the case of Abdul Aziz vs Rezia Khatun reported in 21 DLR 733. The same view was held that non-compliance with provision of sub-section (1) of section 7 of the Ordinance makes Talaq legally ineffective.

17. Similar view was taken in the case reported in 25 DLR 227 in the case of A Sohban vs A Ghani wherein it was held that it is a requirement of section 7 that a notice upon the chairman must be served., None of these decisions were referred to or considered in 48 DLR 48 case. Mr Morshed, the learned Advocate for the opposite party, has also referred to the case of Jabid Ali vs Abdul Kadir reported in Supreme Court Monthly Review (1987) wherein it was held that in Khula and Mubarat, proceed, on the wishes of one party culminating in a settlement between the parties and, as such, the statute takes over even where parties have by a settlement arrived at dissolution. Requirements of provisions of section 7, in such case, have to be observed."

18. Mr Morshed also referred the case of Kaneez Fatema vs Wali Mohammad reported in All Pakistan Legal Decisions at page 903 wherein it was held that section 7 of the Muslim Family Laws Ordinance is mandatory requirement and provisions of section 7 of the Ordinance have to be observed even where the parties have arrived at settlement for dissolution of marriage that when both the parties contracted out of the provisions of section 7 and agreed not to have recourse to arbitration proceedings before the Chairman, Union Council, they waived the compulsory proceedings aimed at restoring the marriage and wife could not take the benefit of section 7 for the purpose of claiming maintenance was not in conformity with the law, (p. 915).

19. He has also referred to the case of Allah Dad vs Mukhtar Ahmad 1992 (SCMR 1273) where it has been observed that in the absence of notice under section 7 of the Ordinance Talaq becomes ineffective and reliance was placed on Mirza Qamar Raza vs Tahira Begum "reported in PLD 1988 (Kar) 169 where on the basis of Article 2A while exercising constitutional jurisdiction in a family matter section 7 of the Ordinance was declared to be void and against the Injunction of Islam. With respect, it may be pointed out that the jurisdiction of the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court does not extend to the Constitution and the Family Laws. Furthermore, Mirza Qamar Raza's case was set aside by a Bench of the Supreme Court on the ground that elucidation on the question of validity of section 7 on the touchstone of Article 2-A was not required in the facts and circumstances. In Allah Dad's case decision would be made on the basis of Mst Bashiran and others vs Muhammad Hussain PLD 1988 SC 186 which has been noted by the learned Judge in para 221 of that judgment. As Allah Dad's case. could be decided on the principles of Bashiran's case, there was no need to enter into questions of constitutional issues, particularly so when it did not fall within the jurisdiction of the Court. As regards notice of Talaq, reference can be made to the following judgments-(1) Syed Ali Nawaz Gardezi vs Lt. Col, Muhammad Yousuf 1963 PLD 51 where it was observed that if husband opts not to give notice perhaps he may be deemed to have revoked pronouncement of Talaq. (2) Abdul Mammud vs Saturun Nessa 1970 SCMR 845 where it was observed that if no notice under section 7(3) of the Ordinance is given divorce is yet to be effective.

These judgments were followed in Muhammad Salahuddin vs Muhammad Nazir Siddiqui 1984 SCMR 853 and Junaid Ali vs Abdul Qadir 1987 SCMR 518. In the last Judgment Shafiqur Rahman, J; observed that the "statute takes over where the parties by settlement arrive at dissolution". Section 7 was held to be observed even in such circumstances. The observation in the impugned judgment as contained in para 55, is not in conformity with the law laid down by this Court which had interpreted section 7 of the Ordinance.

20. Thus, it appears that although after the judgment in Syed Ali Nawaz Gardezi vs Lt Col Muhammad Yousuf's case some contrary interpretations of section 7 were given by various Courts of Pakistan but ultimately interpretation given in 5 DLR (509 was reasserted by Pakistan Supreme Court holding that section 7 of the Ordinance is mandatory to make talak effective. Thus the finding of the appellate Court that the talak is not effective because section 7 has not been complied with is a correct proposition of law and is in conformity with the consistent view of the superior Court though seemingly in conflict with the case reported in 48 DLR 48 as mentioned above.

21. Since in the reported case in 48 DLR 48 none of the decisions referred to was cited and the Court was not assisted properly by placing the precedence on section 7, namely, the decision in 15 DLR (SC 9, 21 DLR 733 and 25 DLR 227, 46 DLR 700 and since the PLD Lahore 334, PLD 1976 Karachi referred to in the said judgment have been over-ruled by Pakistan Supreme Court, the judgment suffers from lack of proper scrutiny and must be held to be a judgment per incuriam for want of care and, as such, is not binding and therefore, the learned District Judge committed no error of law in not following that judgment.

22. Mr Morshed, the learned Advocate for the opposite party, submits that the performance of formalities under section 7 by the wife or husband is a condition precedent for making talak effective but it is equally mandatory for the chairman to do initial reconciliation in the proceedings, inasmuch as such a duty has been cast upon him by the law. We find substance in the submission of the learned Advocate for the opposite party and we hold that initiation of proceeding by the chairman is equally mandatory so as to give finality to the process of divorce as per section 7. The Chairman of the Union Parishad shall constitute arbitration for the purpose of reconciliation and the arbitration shall try to bring about such reconciliation.

23. Mr Quayum, the learned Advocate for the petitioner, submits that since the 90 days have already passed the marriage is no longer subsisting . In the instant case, the very notice has been disbelieved by the appellate Court and also that notice was not served in accordance with section 7 of the Ordinance, inasmuch as no copy of the notice was served upon the wife nor upon the chairman as claimed by the defendant and therefore, in the present case the question of constitution of arbitration by the chairman never arose and therefore, we are not called upon to decide the question as to what shall happen if the conciliation fails.

24. Since the petitioner deposited Taka 40,000 in the Court below the petitionerjudgment debtor is not required to deposit the entire decretal amount nor decree is executable against the entire amount and, in any event, Taka 40,000 should be omitted from calculation and such amount is no longer recoverable from the defendant-petitioner and the plaintiff is entitled to withdraw the money from the Court if not already withdrawn.

25. In such view of our discussion, we do not find that the judgment and decree suffer from any infirmity to call for any interference by this Court and there has been no failure of justice committed by the Court below.

In the result, this Rule is discharged without any order as to costs.