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(a) Muhammadan Law--

--- Divorce--Shia law--When both parties governed by Shia law, divorce, held, must be pronounced by husband orally and in. presence of two competent witnesses--Divorce communicated in writing was not valid under Shia law unless husband was physically incapable of pronouncing it orally.

P L D 1962 W.P. Lah. 558 and P L D 1963 S C 51 rel.

(b) Muslim Family Laws Ordinance (VIII of 1961)--

--S. 7--West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R.3 (b)--Divorce--Shia law--Husband sent written divorce to wife and further confirmed it through letters--Intimation in respect of divorce also sent to Chairman Union Committee who after waiting for statutory period of ninety days ordered divorce to become effective--Notice in respect of proceedings before Chairman sent to wife who raised no objection thereto and allowed divorce to become final--Wife, held, could not be permitted to challenge order of Chairman on ground that Talaq was not pronounced on her orally.

(c) Muslim Family Laws Ordinance (VIII of 1961)--

---S. 7--West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R.3 (b)--Constitution of Pakistan (1973), Art. 199--Notice of divorce to be sent to Union Council of Union or Town where wife was residing--Wife raising no objection. to territorial jurisdiction of Chairman about notice of divorce during pendency of proceedings wife, held, could not be allowed to raise said objection before High Court.-[-Jurisdiction].

Mst. Sharifan v. Abdul Khaliq 1983. C L C 1296 ref.

S.A. Latif v. Nadir Khan P L D 1968 (W.P.) Lah. 144; M/s. Haji Ahmad and Co. v. Muhammad Siddiq P L D 1965 (W.P.) Kar. 293 and Sind Alkalis Ltd. v. Presiding Officer, IV Sind Labour Court and 2 others 1983 P L C 119 rel.

(d) Muslim Family Laws Ordinance (VIII of 1961)--

--S. 7--West Pakistan. Rules under the Muslim Family Laws Ordinance, 1961, R. 3--Constitution of Pakistan (1973), Art. 199 Constitutional petition- -Laches--Petitioner wife did not take any step to challenge order of Chairman Union Committee ordering divorce to become effective and order of Chairman becoming final--Petitioner agitated the matter in Constitutional petition after a period of six years--Order of Chairman, held, could not be allowed to be challenged after such a long time----Cases wherein transactions had become past and closed due to efflux of time could not be reopened--Finality had to be given to such matters at some stage otherwise parties would be consistently living in a state of uncertainty and fear.

Nasima Begum v. Settlement and Rehabilitation Commissioner 1982 S C M R 913 and Shaikh Atta Muhammad v. Housing and Physical Planning Deptt. etc. 1980 C L C 446 ref.

Syed Abbas Zia for Petitioner. Khalid Ishaque for Respondent No.l. Date of hearing: 29th March, 1987.

The petitioner and respondent No.l both of whom are governed by Fiqah-e-Jafaria, were married at Karachi on 10-1-1974. A daughter was also born to them out of the wedlock on 9-11-1977. It then appears that differences arose between the parties which could not be resolved and oh 24-12-1977 the respondent sent a written talaq to the petitioner. The pronouncement of talaq by the respondent was further confirmed through a letter, dated 9-1-1978, addressed by one Syed Muhammad Baqar Najafi, claiming to be a Vakil appointed by the respondent for the purpose. However, the petitioner failed to show any response to the aforesaid letter; consequently, a second letter, dated 4-2-1978, was received by her from Eyed Muhammad Baqar Najafi tG the same effect. It then appears that a notice in respect of the talaq was sent by the first respondent to the learned Civil Judge and Ex-Officio Chairman Union Committee, Karachi in accordance with the provisions of section 7 of the Muslim Family Laws Ordinance, 1961 as is evident from her order, dated 25-3-1978. It further transpires from the order that notices in regard to the second and the third intimation of talaq were also sent by the respondent to the learned Ex-Officio Chairman who after waiting for the statutory period of ninety days (as provided in section 7(3) of the Muslim Family Laws Ordinance) ordered the talaq to become effective. This order has now been impugned by this petition.

I have heard Mr. Syed Abbas Zia, learned counsel for the petitioner and Mr. Khalid M. Ishaque learned counsel for the respondent No.l.

Mr. Syed Abbas Zia has raised a two-fold contention. First, according to him, there was no valid talaq given to the petitioner by the respondent No.1 and consequently the proceedings which followed before the learned Ex-Officio Chairman resulting in passing of the order dated 25-3-1978 were without jurisdiction,. His second contention was that even if assuming that talaq had been pronounced by the respondent No.l on 24-1-1977, then the learned Ex-Officio Chairman possessed no territorial jurisdiction to act as such on 24-12-1977. Mr. Khalid Ishaque, on the other hand, has argued that the petitioner had failed to establish through reliable evidence that there was no valid talaq pronounced by the respondent No.l and secondly, that in any case there had been an inordinate delay in filing the present petition since the same was filed after a lapse of about six years after the talaq had become effective, and this petition was, therefore, liable to be dismissed on account of laches.

So far as the first argument of Mr. Syed Abbas Zia is concerned, there has been no contest on the point that both the parties in this petition are governed by Shia Law, according to which a Talaq must be pronounced by the husband orally and in presence of two competent witnesses. A Talaq communicated in writing is not valid under Shia Law, unless the husband is physically incapable of pronouncing it orally. This has been mentioned in all text-books on the subject without any exceptions as was observed by the High Court of Lahore and the Hon'ble Supreme Court in the case of Ali Nawaz Gardazi (See P L D 1962 W.P. Lah. 558 and P L D 1963 S C 51). This requirement of Shia Law is in direct contrast to Sunni Hanafi Law, according to which Talaq may either be oral or in writing. Mr. Khalid Ishaque has placed reliance on two letters, one dated 30-11-1977, addressed to the respondent No.l by Syed Muhammad Baqar Najafi, informing him that the petitioner had appointed him her Vakil for the purpose of obtaining Khula from the. respondent No.l and the other, dated 1-1-1978, addressed by the petitioner's Advocate to the respondent No.l confirming that the petitioner had accepted the divorce from the respondent No.l without any objection, but these letters fail to indicate that Talaq had been pronounced orally by the respondent No.l as required by Shia Law. However, the onus is on the petitioner to establish that there was no oral Talaq pronounced by the respondent No.l which clearly has not been discharged. No doubt, from the documents relied upon by the petitioner in this respect it cannot be determined whether the respondent No.l had also pronounced oral Talaq, but the onus being on the petitioner, no positive evidence has been provided by her in this respect. Furthermore, this question cannot be permitted to be raised at this stage when the same could be raised by the petitioner during the proceedings before the learned Ex-Officio Chairman. Mr. Abbas Zia has, however, argued that the petitioner was not aware of any proceedings pending before the learned Ex-Officio Chairman in respect of the divorce and consequently the question of her raising any objection therein could hardly arise. Reference was made by the counsel to para No.15 of the petition. A perusal of pare No.15 of the petition, however, shows that the petitioner has only denied knowledge in regard to the confirmation of divorce by the learned Ex-Officio Chairman. At least I cannot spell out any thing else therefrom. In any case, the observations made by the Ex-Officio Chairman in her order, dated 25-3-1978, set the entire controversy at rest as according to her notice in respect of the proceedings before her had been served on the petitioner. Now, if notice of the proceedings had been received by the petitioner, it was more appropriate for her to take all such objections before the learned Ex-Officio Chairman first. Since no objection was taken and the petitioner allowed the Talaq to become C final, she cannot be permitted now to challenge the order of the learned Ex-Officio Chairman. The first contention of Mr. Syed Abbas Zia is, herefore, repelled.