Taj Bibi was married to Ahmad Yar (the appellant). According to her statement before a Magistrate, she was divorced on 6-8-1980 as she was maltreated and accused of bad character by her husband. Thereafter she went to the house of her parents. According to her, they wanted to give her hand to person whom she did not like. She left the house of her parents and wanted to marry a person of her own choice. This statement was recorded on 8-10-1980. On 27-11-1980 she is alleged to have married Muhammad Rafique.
Only then did, Ahmad Yar made an application to the S.S.P. Faisalabad on 15-9-1981. In this application Ahmad Yar mentioned that neither he had divorced Mst. Taj Bibi orally nor in writing and if there was any divorce deed with her that was fabricated. This application was marked by the S.P. to the S.H.O. Police Station Gojra, for necessary legal action but no case was registered. He thereupon filed the writ petition. Muhammad Rafique filed an application under Order 1, rule 10, C.P.C. with the prayer that he may be impleaded/added as a party. The learned Judge directed the S.H.O. to register the case on the statement of Ahmad Yar.
This order was assailed in Intra-Court appeal.
Whether an alleged divorce is ineffective unless the prescribed notice under Section 7(1) of the Muslim Family Laws Ordinance had been given by him to the Chairman.
In holding that talak, if pronounced, cannot be deemed ineffective in absence of notice, Shameem Hussain Kadri, Actg. C.J. said, “ Suffice it to say that the objective of this Ordinance was to provide protection to the weaker sex from the tyranny, high-handedness and upper hand of the man, surely it did not extend to keep a woman hanging in matrimony…I have come across several cases of great hardship where the life of a woman is made miserable by the husband and she seeks even khula, yet a District Judge despite the statement of the girl that she will prefer to jump into the well than to go with the callous husband, did not allow the dissolution of marriage and a direction was issued that she be beaten and confined in the house by the husband. Obviously, this is nothing but height of ignorance and the Injunctions of the Holy Qu’ran …” (p. 831, para 5)
S.H. Kadri, the Acting Chief Justice, in this case, called for a determination regarding the Islamic nature of section 7 of the MFLO by the Federal Shariat Court (p. 831, para 5)
Talak, if pronounced, cannot be claimed to be ineffective, even in the absence of a notice under section 7 of the MFLO.
The absence of notice would be a violation of section 7 of the Ordinance only, the crime punishable under section 7(2) of the Ordinance.