Wednesday, 3 October 2018

PLJ 2014 Lahore 1054


[Rawalpindi Bench Rawalpindi]
Present: Abdus Sattar Asghar, J.
Mst. ASGHAR BIBI and another--Petitioners
versus
Civil Revision No. 469 of 2005, decided on 20.5.2014.
----S. 7--Notice of divorced--Divorce was never conveyed to petitioner or to U.C through notice--Validity--No specific mode is prescribed in Muslim Personal Law or Muslim Family Laws Ordinance 1961 for pronouncement of divorce--A Muslim can pronounce a divorce orally or in writing--Divorce in writing becomes irrevocable under Muslim Personal Law--Non-issuance of a notice under Section 7 of Muslim Family Laws Ordinance, 1961 does not invalidate divorce under Muhammadan Law--Divorce would become effective even in absence of notice under Section 7 to Chairman of Arbitration Council after expiry of period of iddat--Divorce if any becomes ineffective in absence of a notice under Section 7 of Ordinance is devoid of any force being violative to injunctions of Islam.           [Pp. 1056 & 1057] A & B
PLD 1976 Kar. 416 & 1992 SCMR 1273, ref.
----S. 115--Civil revision--Consolidated judgment--Suit for possession through partition, dismissal of--Preliminary decree--Divorce to exclude her from his legal heir--Discharge burden of proof--Marginal witness of talaqnama--Controversy with regard to divorce--It is an established principle of law that in civil cases once parties have advanced their respective ocular and documentary account controversy is determined on basis of preponderance of evidence of parties--Courts below do not call for any interference by High Court in exercise of revisional jurisdiction under Section 115 of CPC, 1908.       [P. 1057] C & D
Mr. Muhammad Iftikhar Mirza, Advocate for Petitioner.
Raja Ameer Akbar, Advocate for Respondents.
Date of hearing: 20.5.2014
Judgment
This civil revision under Section 115 of Civil Procedure Code, 1908 is directed against the consolidated judgment and decree dated 13.12.2000 passed by learned Civil Judge Gujjar Khan whereby suit for possession through partition lodged by the petitioners was dismissed to the extent of MstAsghar Bibi/Petitioner No. 1 and preliminary decree was passed in favour of Petitioner No. 2. It also assails the judgment and decree dated 28.2.2005 passed by learned Additional District Judge Gujjar Khan whereby petitioners' appeal against the judgment and decree of learned Civil Judge was dismissed.
2.  At the outset learned counsel for the petitioners restricts himself to the extent of findings of the learned Courts below declaring MstAsghar Bibi/Petitioner No. 1 a divorcee of Syed GulzarHussain Shah to exclude her from his legal heirs and argues that the same are against law and facts, based on misappreciation, misreading and non-reading of evidence, untenable and liable to set aside.
3.  It is resisted by learned counsel for the respondents.
4.  Arguments heard. Record perused.
5.  Perusal of the record reveals that respondents while resisting the petitioners' suit for possession through partition categorically contended that Petitioner No. 1 was divorced by Syed GulzarHussain Shah (deceased) in the year 1971 and thus she was not wife of Syed Gulzar Hussain Shah at the time of his demise. Learned trial Court framed specific Issue No. 2 on this controversy of fact and onus to prove this issue was placed upon the respondents. In order to discharge the burden of proof respondents produced Ghulam Hussain (DW-2) who while appearing in the witness box stated that Talaqnama (Ex.D-1) was scribed by Mir Gul Hussain Shah Kazmi in Katchery premises in his presence and the contents thereof were read over to Gulzar Hussain Shah who put his signatures thereupon and that he himself also put his signatures. Ghulam Hussain (DW-2) is marginal witness of Talaqnama (Ex.D-1) dated 11.11.1971 bearing declaration of Talaq Baeen by Syed Gulzar Hussain to his wife namely MstAsghar Bibi/Petitioner No. 1. Ghulam Hussain (DW-2) was cross-examined by the petitioners but it is not suggested to him during cross-examination that Syed Gulzar Hussain Shah had neither divorced MstAsghar Bibi nor executed the impugned Talaqnama (Ex.D-1).
6.  Talib Hussain Kazmi (DW-1) while appearing in the witness box stated that stamp paper of Talaqnama was purchased by Gulzar Hussain Shah on his identification and it was scribed by Mir Gul Hussain Shah Kazmi in his presence on the asking of Gulzar Hussain Shah and that the same was read over to Gulzar Hussain Shah who had put his signatures in his presence. Talib HussainKazmi (DW-1) categorically stated that Mir Gul Hussain Shah the scribe was his father-in-law who has since died.
7.  Besides it is pertinent to mention that petitioners' real maternal uncle (Mamoon) namely SaghirShah son of Gulab Shah (PW-2) while facing the cross-examination on 27.11.2000 categorically admitted that Asghar Bibi was divorced by Gulzar Shah. In the attending circumstances argument of learned counsel for the petitioners that the said divorce was never conveyed to the petitioner or to the Union Council through notice under Section 7 of the Muslim Family Laws Ordinance, 1961 is devoid of any force in the peculiar circumstance of this case. Needless to say that no specific mode is prescribed in the Muslim Personal Law or Muslim Family Laws Ordinance, 1961 for pronouncement of divorce. A Muslim can pronounce a divorce orally or in writing. The divorce in writing becomes irrevocable under Muslim Personal Law. Non-issuance of a notice under Section 7 of the Muslim Family Laws Ordinance 1961 does not invalidate the divorce under the Muhammadan Law. Divorce would become effective even in the absence of notice under Section 7 to the Chairman of the Arbitration Council after expiry  of  period  of  Iddat.  Reliance  is  made  upon  Mrs.  Parveen Chaudhry vs. VIth Senior Civil Judge 1st Class Karachi and another (PLD 1976 Karachi 416). Plea of learned counsel for the petitioners that divorce if any becomes ineffective in the absence of a notice under Section 7 of the Ordinance is devoid of any force being violative to the injunctions of Islam. Reliance is made upon Allah Dad vs. Mukhtar and another (1992 SCMR 1273).
8.  It is pertinent to mention that Petitioner No. 1 did not file any replication to deny the respondents' contention that she was divorced by Syed Gulzar Hussain Shah in the year 1971. Even in her statement as PW-3 it is not mentioned that she was never divorced by Syed GulzarHussain Shah.
9.  It is an established principle of law that in civil cases once the parties have advanced their respective ocular and documentary account controversy is determined on the basis of preponderance of evidence of the parties. In view of the above discussion concurrent findings of facts of both the learned Courts below on the controversy with regard to the divorce to Petitioner No. 1 by Syed Gulzar Hussain Shah in the year 1971 do not suffer from any factual or legal infirmity, misreading or non-reading of evidence rather the same are based on true appreciation of ocular and documentary account available on the record. In the attending circumstances the impugned judgments and decrees passed by learned Courts below do not call for any interference by this Court in exercise of revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908. Reliance is made upon Muhammad Idrees and others vs. Muhammad Pervaizand others (2010 SCMR 5).
10.  For the above reasons this Civil Revision having no merit is dismissed.


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