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Criminal Reference No. 170 of 1964, decided on 2nd November 1964.

Divorce (Talaq) under Shia Law‑Must be oral and pronounced in presence of wife and two witnesses in set form of Arabic words‑Talaq communicated in writing‑Invalid unless husband incapable of pronouncing it in manner required by law.

Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf Khan P L D 1963 S C 51; Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf Khan P L D 1962 Lah. 558 and Mulla's "Principles of Mahomedan Law" ref.

Muhammad Haleem, Asstt. A.‑G. for the State.

S. Anwar Ali for Respondent No. 1.

Respondent No. 2 in person.

Date of hearing : 2nd November 1964.

This is a reference by the Additional Sessions Judge, Karachi (Mr. Mehdi Ali Siddiqui) recommending that the order of Mrs. Suraiya Ahmed Pai, A. C. M. Karachi, dated 27‑5‑63, canceling the maintenance granted to Syeda Salina Begum, be set aside on the grounds mentioned in the referring order.

2. The parties to this reference, namely, Syeda Salma Begum and her husband, Syed Abid Hussain Zaidi are Shias who were married according to the Shia Law on 24‑12‑60. A month or so after the marriage, the wife was turned out by her husband and went to live with her parents. She then filed an application under section 488, Cr. P. C. for maintenance, and the learned Magistrate was pleased to grant her maintenance at the rate of Rs. 50 per month. On 9‑4‑62, her husband filed a revision against this order in the Court of Sessions, which was dismissed on 30‑12‑62. Thereafter, on 26‑4‑63, the husband applied again to the Lady Magistrate under section 489, Cr. P. C. for modification of the order of maintenance on the ground that he had divorced his wife. On 27‑5‑63, the Lady Magistrate passed an order on this application in these words ‑

"Mrs. Salma the present opponent in this application under section 489, Cr. P. C. admitted in her statement before this Court that she received the divorce by post. It is now clear that the opponent is no longer liable to maintain her and my previous order is hereby amended remaining in force only in respect of the infant Abida Begum, i.e. Rs. 35 p. m. The order concerning Mst. Salma is hereby cancelled."

(Sd ) Suraiya Ahmad Pai,

A. C. M., Karachi

27‑5‑63."

3. It was as against this order, the wife, Mst. Salma Begum filed Revision Application No. 153/63 in the Court of Sessions at Karachi, which has resulted in the present reference.

4. In his referring order, the learned A. S. J. has pointed out that the alleged divorce granted by the husband to his wife is no divorce for three reasons:

"(a) A Talak under Shia Law communicated in writing is not valid unless the husband is physically incapable of pronouncing it orally.

(b) Oral Talak in Shia Law should be pronounced by the husband in the presence of two witnesses and the wife in set Arabic phraseology. There was no such proof on record.

(c) On 20‑2‑64 there was produced before this Court a certified copy of judgment in Suit No. 260/203 of 1963, passed by learned Civil Judge Mr. Wajid Ali Shah declaring as void and invalid the alleged divorce by the husband."

5. I have heard S. Anwarali, Advocate, on behalf of the wife, Salma Begum, the husband, Syed Abid Zaidi, in person, and Mr. Haleem, Assistant A.‑G. on behalf of the State. The learned Assistant A.‑G. supports this reference for the three reasons mentioned in the referring order. Mr. S. Anwarali in support of his contention "that a talak under the Shia Law to be valid, must be communicated orally by the husband in the presence of the wife and two witnesses, and in set Arabic phraseology, has relied upon the case of Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf Khan (P L D 1963 S C 51). He has invited my attention to para. 32 at page 72 of the judgment of S. A. Rehman, J., and to the passage therein where His Lordship states :‑---

"These text books writers, moreover, are unanimous in stating that according to Shia doctors, the talak must be orally pronounced by the husband, in the presence of two witnesses and the wife, in a set form of Arabic words."

The learned Advocate has also relied upon the judgment of Shabir Ahmad, J. at the original trial of the same case, Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf Khan (P L D 1962 Lah. 558) wherein the same view has also been expressed. Shabir Ahmad, J. stated in his judgment.

"It is mentioned in all text‑books without an exception that in order that a talaq given by a Shia male to his wife be valid, it must be pronounced in the presence of the wife and two witnesses and that a written divorce deed would be invalid unless it be established that the husband was incapable of pronouncing the talak in the manner mentioned above."

Mr. S. Anwarali has also invited my attention to Mulla's Principles of Mahomedan Law where it is again stated that a Talaq under Shia Law must be pronounced orally in the presence of two competent witnesses, and a talak communicated in writing, is not valid unless the husband is physically incapable of pronouncing it orally.

6. In view of this position of the law, then, I have no other alternative but to accept this reference, and to set aside the order of the Lady Magistrate dated 27‑5‑63. This reference is, therefore, returned to the Court of the A. S. J., Karachi, duly accepted.

K. B. A. Reference accepted.

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