The State v Mst. Tauqir Fatima

  • Husband and wife were married in India, and after they migrated to Pakistan, he deserted her. This was the reason that the respondent filed an application for maintenance allowance under section 448 of the Criminal Procedure Code. An order granting maintenance was issued by the Additional City Magistrate. However, the husband was dissatisfied and filed a revision application which was dismissed

  • The husband, then, filed a suit against the respondent to seek a declaration that he had validly divorced her fifteen years before in India and hence was not liable to maintain her anymore. However, this suit was dismissed, and so was the appeal that followed it – it was held that she was still his wife.

  • The husband was then able to convince the Additional City Magistrate that he had validly divorced his wife and was therefore directed to pay maintenance till the arrears and the allowance for iddat was exhausted. He then appealed against this decision in the present case.

 Legal Reasoning

Whether the husband had validly divorced his wife and hence only needed to pay her during iddat

A.R. Khan, J. – “[…] in course of this inquiry, the Additional City Magistrate should have allowed the parties to lead their evidence and argue the point whether Shamsul Hassan had divorced Tauqir Fatima, as alleged by him, on the 6th of December, 1962I agree with him that theAdditional City Magistrate should not straightway have accepted the application. ” (para 6))

A.R. Khan, J. – “As no notice has been given by Shamsul Hassan in this case, the talaq, that he had pronounced according to his version, on the 6th of December, 1962, could not have become effective. Therefore, the question of payment of allowance sanctioned in her favour up to the period of her Iddat only, could not arise. By this order regarding thepayment of the arrears of her maintenance allowance granted by installments and up to the period of Iddat only, the learned Additional City Magistrate had obviously modified the earlier order of maintenance allowance passed in favour of Ms. Tauqir Fatima. ” (para 7)

Conclusion

[…] this reference is accepted, and the order of Syed Aftab Hussain, Additional City Magistrate, Karachi, dated 6th December, 1962, is set aside.” (para 8)

In this case, the judge did not accept that the husband had a. validly divorced his wife and b. only had to pay during iddat. In conclusion, the husband was still married to his wife and liable to pay her maintenance.

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