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Writ Petition No. 1335 of 1975, decided on 11th May, 1983.

‑‑‑S. 7‑‑Constitution of Pakistan (1973), Art. 199‑‑Divorce‑ -Pronouncement according to Shia law‑‑Two Adil males to hear said pronouncement‑‑Trial Court on basis of evidence led by parties reaching conclusion that pronouncement of divorce made by husband on wife did not conform to requirements of Shia law inasmuch as it was not heard by two Adil males and, therefore, lady could not be said to have ceased to be his wife‑‑Finding of fact recorded by Trial Court and endorsed by appellate Court not shown to have been arrived at as a result of misreading of evidence or based on no evidence‑‑Interference declined by High Court in constitutional jurisdiction.

Misbah‑ul‑Hassan Abdi for Petitioner

Talib H. Rizvi with Syed Muhammad Zaidi for Respondent No.l.

Date of hearing: 11th May, 1983.

This writ petition assails the validity of the judgment of the learned Judge, Family Court, Jauharabad, dated the 13th October, 1973, directing the petitioner to pay maintenance allowance at the rate of Rs.250 per mensem to respondent 1 and Rs.100 per, mensem in respect of the latter's minor son from the petitioner and of the learned Additional District Judge, Sargodha, dated the 7th May, 1975, dismissing the petitioner's appeal against tile first mentioned order.

2. Syed Azharul Hassan Naqvi, petitioner, married his mother's brother's daughter, Mst. Hamida Bibi alias Ishrat Jehan, respondent 1, in 1961. They belong to Shia sect of Islam. A son named Imran Haider is the only off spring of marriage. The petitioner claimed that he pronounced Talaq upon respondent 1 at Lahore on the 24th December, 1968, and sent notice of Talaq in accordance with the provisions of section 7 of the Muslim Family Laws Ordinance, 1961, on the 28th December, 1968, to the Chairman of the Union Committee, Jauharabad, respondent 4, in whose jurisdiction respondent 1 resided at that moment. On the 18th July,1969, respondent 1 instituted suit in the Family Court, Jauharabad, for recovery of maintenance allowance for herself as well as for her minor son.

3. The precise question which came up for decision before the learned trial and appellate Courts as well as before this Court was whether or not the Talaq pronounced by the petitioner was valid. Whereas the petitioner insisted that Talaq pronounced by him was in consonance with the Muslim law as followed by Shias yet respondent 1 asserted that no valid Talaq had been given by the petitioner and that the marriage continued to subsist. Admittedly under Shia law pronouncement of Talaq by the petitioner was required to be heard by two adil males if it were to result in the breaking of marriage tie. The learned trial Court, on the basis of the evidence led by the parties, reached the conclusion that the pronouncement of Talaq made by the petitioner did not conform to the requirements of Shia law inasmuch as it was not heard by two adil males and, therefore, respondent 1 could not be said to have ceased to be his wife. This finding of the learned trial Court having been endorsed by the learned Additional District Judge the petitioner has invoked the extraordinary jurisdiction of this Court.

4. It has not been shown that the finding of fact recorded by the learned Courts has been arrived at as a result of any misreading of evidence or is based on no evidence. It was for the learned Courts to believe or to prefer to accept respondent 1's evidence in preference to petitioner's evidence and this Court in writ jurisdiction will not interfere with the finding so recorded. The learned counsel for respondent 1 pointed out that Annexure 'A', a copy of writing reciting pronouncement of Talaq by the petitioner upon respondent 1 on the 23rd August, 1969, in the present of two witnesses, appended by the petitioner to his petition, indicated' that he was conscious of the fact that talaq given by him on the 24th December, 1968, was not valid because otherwise he would not have executed such a writing. The learned counsel for the petitioner had no answer to the argument of the learned counsel for respondent 1. In these circumstances no exception can be taken to the impugned decisions. The petition is without any force and is dismissed with costs.

M.Y.H./A‑5/L Petition dismissed.

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