Advocate Kashif Aziz

[PLD 1962 Lah. 558]

A mistake of law is not a defence even act committed in good faith.

وکالت تجارت نہ ہے، وکیل اپنے سائل کا دفاع کرنے کے ساتھ ساتھ آئین اور قانون کی بالادستی قائم رکھنے میں مدد کرنے کا بھی ذمہ دار ہے.
(2016 CLC 10).
اگر کسی وکیل نے قبل ازیں بطور جج، کسی کیس کا فیصلہ کیا ہو، تو بعد ازاں اس کا، اس کیس میں بطور وکیل پیش ہونا بار نہ ہے.
(2014 SCMR 866).
وکیل کو بحث کرنے کے لئے، پورا وقت دینا اور تفصیل سے سننا عدالت کا فرض ہے.
(2012 CLC 899).
ٹرائل کورٹ میں کیس کی پیروی کرنے والے وکیل کو، اپیل کرنے کے لیے جدید وکالت نامہ کی ضرورت نہ ہے.
(2011 CLC 1045).
اگر وکلاء قانون کا حوالہ نہ بھی دیں، تو اس سے فرق نہیں پڑتا، عدالت نے اپنا ذہن استعمال کرنا ہوتا ہے اور قانون سے واقف ہونا عدالت کی ذمہ داری ہے.
(2010 SCMR 1408).
وکالت نامہ کے بغیر، کسی کیس میں پیش ہونا، مس کنڈکٹ کے زمرے میں آئے گا.
(2001 YLR 2782).
اگر کوئی کلائنٹ اپنے کاغذات واپس بھی لے جائے، تو وکالت نامہ واپس لینے تک، عدالت میں پیش ہونا، وکیل صاحب کی ذمہ داری ہے.
(1994 SCMR 1948).

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▪️DIVORCE (طلاق) CASE LAWS 👇

Zubaida Khatoon V/S Administrator Union Council Uch Gillani (Lah.)
1996 MLD 1689.

S.7. Talaq pronounced by husband to wife thrice …. Right of revocation by husband……. Legality …. Withdrawal of notice of talaq by husband from Administrator, Union Council…. Validity …. Talaq pronounced by husband to wife thrice would become “Bain” and husband would have no right of its revocation as per injunctions laid down in Holy Quran and Sunnah, relating to divorce and its revocation and to that extent provisions of S.7 Muslim Family Laws Ordinance, 1961, would give its way to those injunctions as enshrined in the constitution.

1998 MLD 486. Mst. Rehmat Ara V/S Mehmoodul Hassan & another (Lah.)

S.7. Husband asserted that period of “Iddat” of 90 days must be counted from date of issuance of notice to Arbitration Council and not from the date of pronouncement of Talaq. Commencement of period “Iddat”… Talaq was validly given by husband on 9-6-1996 when the same was pronounced and period of “Iddat” of three months had expired on 9-9-1996 and talaq became final on said date. Withdrawal of talaq by husband on 21-10-1996 (after it had become final) was inconsequential and ineffective.

1998 MLD 85. Farah Khan V/S Tahir Hamid Khan & another (Lah.)

Marriage between petitioner and respondent was solemnized in accordance with provisions of Muslim Family Law Ordinance, 1961 in Pakistan. Respondent divorced petitioner which was endorsed by Arbitration Council. Validity. Originally both petitioner and respondent were Pakistani citizens and after three years of marriage only respondent had acquired citizenship of USA. Muslim Family Laws Ordinance, 1961, would extend to whole of Pakistan and applied to all muslim citizens of Pakistan wherever they might be in terms of S.(2) of the Ordinance. Provisions of Muslim Family Laws Ordinance, 1961, could be invoked where one of the party to marriage was Muslim citizen of Pakistan. Even if it was presumed that Arbitration council had no jurisdiction to entertain notice of talaq given by respondent under provisions of S.7 Muslim Family Law Ordinance, 1961, right of talaq vested in husband under Sharia had not been taken away from any Muslim, irrespective of the country to which he belonged. Despite restrictions contained in Muslim Family Laws Ordinance, 1961, husband’s right of talaq would prevail as given to him under Quranic injunctions. Divorce pronounced by respondent had, thus, taken effect under Islamic injunctions even if notice to Arbitration council intimating such talaq or subsequent proceedings taken in that regard and certificate issued by Arbitration council endorsing effectiveness of talaq, were ignored. Constitutional petition also suffered from laches which would not warrant interference by High court at such belated stage when talaq under Sharia had already become effective.

1998 MLD 1216. Abdullah V/S Mst. Shaheen & 2 Others (Pesh.DB)

S.2(v). Proviso ©️. Dissolution of marriage on ground of impotency of husband. Decree for dissolution of marriage was granted to wife by Family Court on ground of impotency of husband on only evidence furnished by Lady Doctor to the effect that h***n of the wife being intact, she was a virgin. According to settled medical and scientific phenomenon, factum of h***n being intact, was not a conclusive proof of virginity because h***n in certain cases is so flexible that it is not repertured by incideence of first delivery. Evidence on record indicated that husband and wife had tried to produce their own medical certificates by consulting Doctors themselves, but court had not referred same for examination which had shown touch of personal involvement of court. Better approach would have been to get the parties medically examined through court. Application filed by husband under proviso ©️ of S.2(v) of Dissolution of Muslim Marriages Act, 1939, was also not considered by Family Court before passing decree for dissolution of marriage on ground of impotency of husband. Family Court had acted without jursidiction and also had exercised jurisdiction not vested in it as Family Court could not pass decree for dissolution of marriage on the ground of impotency of husband, unless on application of husband, he was required to satisfy the court within one year from the date of such order that he had ceased to be impotent. If husband so satisfies the court within such period qua the same woman involved, no decree for dissolution of marriage would be passed on ground of impotency. Judgement of Family Court was set aside and case was remanded to be decided afresh after complying with provisions of proviso ©️ of S.2(v) of Dissolution of Muslim Marriages Act, 1939.

NLR 2002 SD 161. Mst. Ambreen Shah V/S Chairman Union Council etc. (Lahore)

Pronouncement of triple talaq by husband. According to verse 230 of Surah Baqra of the Holy Quran, talaq becomes irrevocable. Husband cannot subsequently revoke such talaq.

PLD 2002 Lahore 518. Hamid Hameed Waris V/S Mrs. Tehseen

Divorce. If a husband announces divorce thrice to his wife, same becomes operative according to Hanafi Sect. (2) S.2(ix). Suit for dissolution of marriage. Oral pronouncement of divorce by husband to his wife. Husband not reducing such divorce in writing. Remedy of wife to get confirmed such oral divorce. Wife in such circumstances had no other option, but to approach the Court.

PLD 2003 Peshawar 169.Fazli-e-Subhan V/S Sabereen & 3 Others (DB)

S.7 & 8. Muslim Family Laws Ordinance 1961. Muslim Family Laws Ordinance, 1961 had abolished the practice of disapproved form of :Talaq" and mode prescribed in the ordinance was that of a "Talaq-e-Ahsan" and by the ordinance it had been made mandatory that the notice of "Talaq" would be effected only if efforts of reconciliation would fail. Law prevailing previous to the enforcement of Muslim Family Laws Ordinance, 1961 had made it obligatory for the couples divorced by any mode of "Talaq" other than "Talaq-e-Ahsan" not to re-marry each other again, unless wife married another man who died or divorced her after actual consummation and she married her first husband after period of "Iddat". Before re-marriage parties had to prove that bar to their marriage was removed by intermediate marriage, consummation and dissolution, otherwise their marriage was not considered valid. Mode of "Talaq" effected under provisions of the 1961 Ordinance being almost that of "Talaq-e-Ahsan, the couples could re-marry without any intervening marriage except where they had been divorced thrice and the third divorce had become effective and in that case they could not re-marry without an intervening marriage. Plain reading of S.7 of the 1961 Ordinance, though had implied that all kinds of "Talaq" had been made revocable without an intervening marriage and could be that its repugnancy to such extent could validly be agitated on the touchstone of Quranic behest and the traditions of Holy Prophet (p.b..u.h.) but neither vires of said S.7 had been challenged nor matter raised in case pertained to all kinds of "Talaqs"-- Matter, in the present case, pertained to "Talaq" obtained by wife through Court decree in shape of Khula".

NLR 2004 SD 190. Shoukat Ali & another V/S The State (FSC).

S.10 Zina Ord. S.7(I) Muslim F.L.Ord.1961, Talaq pronounced by husband in accordance with requirements of Shariah without following the procedure laid down in S.7 would be valid pronouncement of Talaq. Failure to follow procedure laid down in S.7 may entail punishment but would not invalidate Talaq which is conscious and willful pronouncement of Talaq with intention to release wife from marriage bond. CONVICTION SET-ASIDE.

PLD 2004 Lahore 77.Mst. Nazir Fatima Nazim Union Council

S.5 & Schedule Family Courts Act 1964. One of the conditions of the marriage between parties was that husband had delegated the right do divorce wife and try to that effect was made in column No.18 of Nikahnama. Wife in exercise of said right pronounced divorce upon herslef for her husband and a notice was sent to Nazim Union Council concerned. Nazim had intimated wife that husband being not ready to pronounce divorce, wife could approach the court as he could not grant Khula and Nazim sent the case to the Family Court. Nazim was oblivious of legal position as right of divorce could be lawfully delegated by husband to wife and that had happened in the present case and notice was sent by wife in compliance with the terms of S. 7 & 8 of Muslim Family Laws Ordinance, 1961. Ninety days prescribed period having expired after receipt of notice issued by wife and reconciliation being not possible between the parties, law as prescribed in S.7(3) & 8 of Muslim Family Laws Ordinance, 1961 would have in course. Nazim would issue requisite document regarding receipt of notice and failure of reconciliation within prescribed time.

PLD 2004 Lahore 316. Mian Arif Mehmood V/S Mst. Tanvir Fatima & another

S.7(3) & (5) Muslim Family Laws Ordinance 1961. Divorce pronounced by the husband upon the wife having not been revoked, had become effective after the expiry of ninety days from the date of receipt of notice by the Nazim/Chairman Arbitration Council in view of S.7(3). PETITION PARTLY ALLOWED.

PLD 2004 Lahore 588.Nasrullah V/S District Judge Mianwali

S.5 West Pakistan Family Courts Act 1964 & Schedule. Suit for recovery of value of dowry articles and compensation for divorce. Suit for recovery of compensation for divorce filed by wife was resisted by husband on ground that Family Court had no jurisdiction to grant that relief. Husband had claimed that he had divorced the lady because of her bad character. Evidence on record had shown that husband had made false accusation against the lady as he had no evidence to offer for the same. No particulars were given as to how he had accused the lady to be of a bad character. Divorce, in circumstances was pronounced by husband wtihout giving any reason against the lady. Schedule appended to West Pakistan Family Courts Act was amended and item No.9 was added to the effect "Personal property and belonging of a wife" which by all means vested the lady with a right to bring an action against the husband to claim compensation for divorce pronounced upon her without any justification. Husband became indebted to the lady in the said amount and moment said condition became operative. Even if such debt was conditional or contingent, would fall within the meaning of actionable claim. Claim of the lady to said amount accruing to her upon an unjustified divorce, by all means was a property and fell within item 9 of Schedule read with S.5 of West Pakistan Family Act, 1964. Appellate court, in circumstances had not acted without lawful authority while decreeing said claim of respondent. PETITION DISMISSED.

PLD 2006 SC 457.Mst. Farah Naz V/S Judge Family Court Sahiwal

S.5 Family Courts Act, 1964. Plea of oral divorce. Validity. Husband was required to send notice of divorce to Arbitration Council under Muslim Family Laws Ordinance, 1961 and also to send copy of such notice to wife by registered post. No such proceedings having been ever conducted, oral allegation of Talaq would neither be effective nor valid and binding on wife, who was legally entitled to past maintenance.

PLJ 2008 Sh.C.(AJK) 55. Bilal Hamza Abbasi V/S Wazir Muhammad & another

Specific mode for dissolution of marriage --- Divorce pronounced on telephonic call. Islam does not prescribe any specific mode for dissolution of marriage. It is an overt act on the part of husband which could indicate a clear intention to annul the marriage to operate as a divorce. No particular form of words is prescribed for affecting a talaq. If the words of Talaq are clear express and very well understood as implying divorce, no proof of intention is required. It is also not necessary that divorce should be pronounced in the presence of wife or even addressed to her. Witness for the respondent told him that appellant tried to hand over the divorce deed to him but he refused to receive the same. Held: Appellant had pronounced talaq through telephonic call by producing cogent, sufficient and reliable evidence. No any non-reading or misreading of the evidence on the part of Family Court. APPEAL DISMISSED.

2009 MLD 1478. Ambreen Afshan V/S Mrs. Idrees Qazu (Lahore)

S.7 Muslim Family Laws Ord. 1961. Divorce--Effectiveness---Husband administered the divorce and notified the same to Chairman of Arbitration/Union Council whereupon certain proceedings were taken and ultimately a certificate for the effectiveness of divorce was issued through the impugned order. Wife was well aware of the fact that husband had pronounced divorce to her for which consequential proceedings before the Arbitration/Union Council had also been taken. Father of the wife had been pursuing the matter before Arbitration Council. Case of the wife who had challenged effectiveness of the divorce was that the submission of divorce deed with a notice before the Arbitration Council could not ipso facto, operate and result into the dissolution of marriage. In the present case it could not be disputed that the period much beyond 90 days had expired from the date of notice of the divorce when impugned certificate of its effectiveness was issued, in the circumstances, especially keeping in view all the relevant facts of service of notice on the Chairman Union Council, the initiation of the proceedings by the Arbitration Council, the repeated appearance of father of the wife who was holding a power of attorney on her behalf in those proceedings and actual knowledge of the wife about the pendency and fact of those proceedings, divorce and its pronouncement had become effective. Failure to send a notice to the Chairman of the Arbitration Council would not render the divorce in-effective in Shariah. Effect of pronouncement of divorce in Shariah would not justify interference with impugned order nor would warrant exercise of discretion in favor of the petitioner/wife under Art.199 of the Constitution.