Table of Contents:
- Introduction
- Case Background
- Petitioner’s Arguments
- Legal Precedents Cited
- Court’s Observations
- Conclusion
1. Introduction
This constitutional petition was filed under Article 199 of the Constitution of Pakistan, 1973. The petitioner challenged the Family Court’s judgment dated 27.02.2017. The case revolves around the dissolution of marriage through Khula.
2. Case Background
The petitioner and respondent No.1 married on 28.08.2006. They have three daughters. Initially, their relationship was good; however, it later became strained. Consequently, respondent No.1 filed for Khula multiple times.
In the latest suit, filed on 02.11.2016, the pre-trial reconciliation efforts began. The petitioner expressed his willingness to reconcile, but respondent No.1 refused. As a result, the court dissolved the marriage based on her statement.
3. Petitioner’s Arguments
The petitioner argued that, under Shia law (Fiqah-e-Jafria), a divorce (Talaq) is valid only if certain conditions are met. These conditions include:
- Pronouncing the Seeghajaat (divorce formula) in Arabic.
- Performing the pronouncement in the presence of two witnesses.
Additionally, the petitioner referred to an amendment in Section 7 of the Muslim Family Laws Ordinance, 1961. This amendment supports the requirement of pronouncement in the presence of witnesses.
4. Legal Precedents Cited
The petitioner cited several important legal precedents to support his argument:
- Syed Ali Nawaz Shah Gardezi Case (PLD 1962 Lahore 558): Divorce must be pronounced in Arabic in front of two witnesses.
- The State v. Syedda Salma Begum (PLD 1965 Karachi 185): Talaq must follow Shia law procedures.
- Syed Azharul Hassan Naqvi v. Hamida Bibi (1987 CLC 1041): Divorce requires the presence of two just male witnesses.
- Mst. Asmat Nigar v. Syed Ibrar Hussain (2004 YLR 111): Specific Arabic words and witnesses are essential for a valid Talaq.
5. Court’s Observations
Both parties recorded their statements in court, but reconciliation efforts failed. The court emphasized that Shia law requires the Seeghajaat in the presence of witnesses for a valid divorce.
However, the court also noted that the petitioner still had the right to pronounce Talaq according to Shia law. Importantly, this pronouncement could apply retrospectively.
6. Conclusion
In the end, the court upheld the dissolution of the marriage but allowed the petitioner to pronounce Talaq again. This must follow the specific requirements of Shia law. The court disposed of the petition with this provision.
This case underscores the importance of adhering to specific religious procedures in family matters. It also highlights the necessity of respecting personal laws under different Islamic schools of thought.