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Criminal Miscellaneous No. 184‑Q of 1978, decided on 1st October, 1979.

--‑‑R. 21 read with Notification No. SOX‑1‑15/75‑Vol. IT dated 26th November, 1976‑Private complaint‑Rule 21 having been amended by Notification replacing Union Council', by words aggrieved '.party', private complaint as such, held, competent. [Complaint].

Muhammad Islam v. The State P L D 1967 Pesh. 201 ; Mst. Maqbool Jan v. Arshad Hassan and another P L D 1975 Lah. 147 ; Fateh Muhammad v. Chairman, Union Committee and others P L D 1975 Lah. 951 ; Mrs. Parveen Choudhry v. Senior Civil Judge P L D 1976 Kar. 416 ; Abdul Aziz v. Razia Khatoon 1969 D L C 586 ; Mst. Fahmida Bibi v. Mukhtar Ahmad P L D 1972 Lah. 694 ; Ali Nawaz v. Muhammad Yousaf P L D 1963 S C.51_and P L D,1977 Punjab Statutes 30 ref.

‑‑ S. 7 (1) & (3)‑Talaq‑S. 7(1) of Ordinance takes into account all .forms of talaq and no particular form outside its purview‑Sub section (3) of S. 7 having precluded ialaq from‑ being effective for a certain period within such period marital status of parties, held, remains unchanged. ‑(Muhammadan Law].

‑‑--S. 7 (3)‑Talaq‑Principle ‑ recognized by Hanfi Muslim Personal Law‑petitioner divorcing respondent wife on 13th October, 1977 and contracting second marriage on 21 1st October, 1977 within less than ninety days period provided under section 7 (3) of Ordinance for bringing reconciliation between spouses‑Held, divorce though given to respondent on 13th October 1977, yet it remained legally ineffective for all purposes till 13th January 1978, notwithstanding principle of Hanfi Muslim Personal Law recognizing Talaq‑al‑Bida'at or ‑Talaq‑i‑Badai as irrevocable and taking effect immediately on its execution if given in writing.‑[ Muhammadan Law].

--‑‑S. 7 (3)‑Talaq Ahsan‑ S. 7 (3) of Ordinance, by providing a period of ninety days for purposes of bringing about a reconciliation, held, introduces into Talaq‑ul‑Bida' at or Talaq‑i‑Badai provisions of Talaq Ahsan referred to in Sura Al‑Talaq of Holy Qur'an. [Muhammadan Law].

‑‑ S. 7 (3) read with Constitution of Pakistan (1973), Art. 203‑B Muslim Family Laws ‑Repugnance to injunctions. of Islam‑S. 7 (3) of Ordinance, held, not repugnant to injunctions of Islam so as to invite special examination under Art. 203‑B of Constitution.

‑‑‑Art. 203‑B, Explanation‑Connotation of‑Muslim Personal Law under Explanation to Article 203‑B of Constitution, exempt from any special examination and a provision making a material amendment in any particular branch of Muslim Personal Law a part of personal law itself to earn exemption as provided by Explanation.‑‑‑[Muhammadan Law].

‑‑‑S. 7 (3)‑‑Muslim Personal Law‑Amendment under section 7(3) of Ordinance introduced in Muslim Personal Law, held, .a beneficial amendment bringing provision of Talaq more in conformity with principles of Talaq Ahsan and deserves greatest respect being nearest to injunctions of Islam with enhanced sanctity. ‑[Muhammadan Law].

--‑‑S. 561‑A‑Quashment of proceedings‑Contention that private complaint under section 6 (5) of Muslim Family. Laws Ordinance having been lodged by respondent wife instead of Union Council, same was not competent‑‑Held, preliminary evidence does not disclose private complaint being based on no evidence hence quashment of proceedings declined‑Muslim Family Laws Ordinance (VIII of 1961), S. 6 (5).‑[Complaint].

Ch. Muhammad Sadiq for Petitioner.

Amjad Hussain Syed for Respondent No. 1

Nemo for the State.

Date of hearing : 23rd September 1979.

This is a petition under section 561‑A, Cr. P. C. by Muhammad Latif petitioner for quashment of proceedings pending against him under section 6 (5) of .the Muslim Family Laws Ordinance, 1961, in the Court of Mr. Ishtiaq Ali, Magistrate Ist Class, Sadar, Lahore Cantonment.

2. The brief facts of the case are that Muhammad Latif petitioner married Mst. Hanifan Bibi, respondent No. 1, in 1966. On 13th October 1977, the petitioner divorced the respondent by sending a written talaq to her by registered A. D. post, with notice of the same to the Ilaqa Chairman. Without waiting for the ninety days period to expire as provided under section 7 (3) of the Muslim Family Laws Ordinance, 1961, the petitioner contracted a second marriage on 21st October 1977. On 13th January 1978, the petitioner's talaq ‑ became effective, after the reconciliation proceedings before the Chairman ended in failure. On 13th December 1977, the respondent filed a private complaint against' the petitioner under section 6 (5) of the Muslim Family Laws Ordinance, 1961, before the Ilaqa Magistrate, Sadar, Lahore Cantonment, inter alia alleging that her husband had during the subsistence of her marriage contracted a second marriage without securing the previous permission in writing of the a Arbitration Council as provided by section 6 (1) of the said Ordinance and was thus liable for prosecution. After recording the necessary preliminary evidence, the petitioner was summoned to stand trial. On 14th February 1978, the Magistrate framed a charge against the petitioner under section 6 (5) of the Muslim Family Laws Ordinance, 1961. Being aggrieved by the said proceedings, the petitioner filed the present quash ment petition, which is now before me for disposal.

3. The learned counsel far the petitioner, in support of his petition, contended that since the private complaint under section 6 (5) of the Muslim Family Laws Ordinance, 1961, had been lodged by the respondent wife and not by the Union Council, as provided in rule 21 of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, there fore, the same was incompetent. In this connection, he relied upon Muhammad Islam v. The State (P L. D 1967 Pesh. 201), Mst. Maqbool Jan v. Arshad Hassan and another (P L D 1975 Lah. 147) and Fateh Muhammad v. Chairman, Union Committee and others (P L D 1975 Lah. 951). The learned counsel for the petitioner also submitted that notwithstanding the provisions of section 7 (3) of the Muslim Family Laws Ordinance, 1961, the Talaq‑i‑Badai or Talaq‑ul‑Bidaat given in writing by the petitioner to his wife became effective on 13th October 1977 under Muslim Personal Law and that the relationship of husband and wife between the parties having ceased on 13th October 1977, the petitioner was competent to contract a marriage a second time on 21st October 1977 without securing the prior permission in writing of the Arbitration Council as required by section 6 (1) of the Muslim Family Laws Ordinance, 1961. It was also contended that though section 7 (3) of the Muslim Family Laws : Ordinance had the effect of suspending the effectiveness of the divorce for ninety days for collateral purposes, such as, for the purpose of bringing about a reconciliation between the spouses, it could not destroy the irrevocability of the Talaq‑ul‑Bida'at or Talaq‑i‑Badai, which had become effective on lath October 1977. In this connection, Mrs. Parveen Chaudhry v. Senior Civil Judge (P L D 1976 Kar. 416 ), Abdul Aziz v. Razia Khatoon (1969 D L C.586) and Mst. Fahmida Bibi v. Mukhtar Ahmad (P L D 1972 Lah. 694) were cited. In view of these cumulative facts, it was submitted that no violation of section 6 (1) of the Muslim Family Laws Ordinance was made out and that, therefore, the respondent's private complaint deserved to be quashed.

4. The learned counsel for the respondent wife, who strongly opposed the petition, in dealing with the petitioner's counsel's first objection regarding the competency of the petition, submitted that rule 21 of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, was amended on 26th November 1976 by Notification No. SOX‑1‑15/75‑Vol. II, dated 26th November 1976, and that with effect from that date, the Courts were com petent to take cognizance of offences under the Ordinance or its Rules on the complaint in writing of any aggrieved party. Since rule 21 was amended on 26th November 1976 and the respondent had filed her private complaint against the petitioner on 13th December 1977, it was submitted that the complaint was competent and that there was no bar to the Ilaqa Magis trate taking cognizance of the same in law. As regards the remaining legal submissions made by the learned counsel for the petitioner, the learn ed counsel for the respondent submitted that section 7 of the Muslim Family Laws Ordinance, 1961, did not make any distinction between different forms of pronouncements of talaq and whatever was the form of pronouncement of talaq, the said talaq remained ineffective until after the expiration of ninety days from the day on which notice was delivered to the Chairman and that during this period of ninety days, the marital status of the parties did not, in any way change. In this connection, learned counsel for the petitioner relied upon Ali Nawaz v. Muhammad Yousaf (P L D 1963 S C 51), Mst. Fahmida Bibi v. Mukhtar Ahmad (P L D 1972 Lah. 694) and Mst. Maqbool Jun v. Arshad Hassan (P L D 1975 Lah. 147).

.5. The‑contentions raised by the learned counsel for the petitioner. and the respondent have engaged my serious attention. As regards the plea of the learned counsel for the petitioner that the private complaint of the respondent was incompetent because it was not initiated at the instance of the Union Council, in view of rule 21 of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, the said contention has no force as the said rule was amended on 26th November 1976 by Notification No. SOX‑1‑15/75‑Vol. II of the same date (see P L D 1977 Punjab Statutes 30) and the words "Union Council" were replaced by the words "aggrieved party". In these circumstances, the present petition by the respondent wife, who is an aggrieved party, is competent in law. As regards the other legal submissions made by the learned counsel for the petitioner, the same are all answered in Ali Nawaz Gardezi's case. In this case at page 75, Mr. Justice S. . A. Rehman clearly held that subsection (1) of section 7 of the Muslim Family Laws Ordinance took into account all forms of talaq and that no particular form was outside its purview and that subsection (3) of the same section B precluded a talaq from being effective as such, for a certain period and within that period "it could not be said that the marital status of the parties had, in any way, been changed. They would still in law continue to be husband and wife". In fact, Mrs. Parveen Chaudhry v. Senior Civil Judge (P ,L. D 1976 Kar. 416), Abdul Aziz v. Razia Khatoon (1969 D L C 586) and Mst. Fahmida Bibi v. Mukhtar Ahmad do not support the various propositions raised by the petitioner. On the contrary they support the arguments of the learned counsel for the respondent. In the light of the se rulings, 1 have no hesitation in holding that though the divorce in the instant case was given on 13th October 1977 to the respondent wife, yet it remained legally ineffective for all purposes till 13th January 1978, notwithstanding the now obsolete principle of Hanfi Muslim Personal Law, which recognis ed ed the heretical Talaq‑ul‑Bidaat or Talaq‑i‑Badai (introduced by the Omeyad Monarchs) as irrevocable and taking effect immediately on its execution if given in writing. On the principle laid down in Ali Nawaz Gardezi s case, the present talaq remained ineffective upto 13th January 1978 and during this period the marital status of the parties did not under go any change. In these circumstances, on 21st October 1977, if the peti tioner contracted a second marriage during the subsistence of his first existing marriage, he was liable to secure the previous permission in‑writing of the Arbitration Council.

6. Section 7 (3) of the Muslim Family Laws Ordinance, 1961, by providing a period of ninety days for purposes of bringing about a recon ciliation introduces into the Talaq‑ul‑Brdat or Talaq-i‑Badai the provisions of Talaq Ahsan referred to in Sura A1‑Talaq of the Holy Qur'an. Sec tion 7 (3) of the 1961 Ordinance is therefore, not repugnant to the injunc tions of Islam as laid down in the. Holy Qur'an or the Sunnah of the Holy Prophet so as to invite any special examination under Article 203‑B of the Constitution of Pakistan. Even otherwise, under the Explanation to Article 203‑B of the Constitution, Muslim Personal Law is exempt fro any such examination and a provision which makes a material amend ment to any particular branch of Muslim Personal Law is as much a part of the personal law itself to earn the exemption as provided by the Explanation. The amendment is a beneficial amendment and brings the provisions of talaq more in conformity with the principle of Talaq Ahsan and therefore, deserves the greatest respect. Being nearest to the Injunc tion of the Qur'an and the Sunnah of the Holy Prophet, its sanctity is all the more enhanced.

7. From the preliminary evidence recorded, it cannot be said that the present private complaint pending before the Magistrate is one based on no evidence. In these circumstances, no interference is called for.

8. In view of the above, there being no merit in this petition, the same is dismissed.

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