PLJ 2008 Sh.C. (AJ&K) 55
Present: Iftikhar Hussain Butt, J.
BILAL HAMZA ABBASI--Appellant
versus
WAZIR MUHAMMAD and another--Respondents
Civil Appeal No. 119 of 2005, decided on 10.10.2007.
Talaq--
----Specific mode for dissolution of marriage--Divorce
pronounced--Telephonic call--Cogent, sufficient and reliable
evidence--Appellant had pronounced Talaq through telephonic call by producing
cogent, sufficient and reliable evidence--No proof of intention is
required--Validity--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
evidencey--Any non-reading or misreading of the evidence on the part of Family
Court--Appeal dismissed. [Pp. 59
& 60] A, B & C
Syed Nazir Hussain Kazmi, Advocate for Appellant.
Mr. Asghar Ali Malik, Advocate for Respondents.
Date of hearing: 10.10.2007.
Order
This appeal has been preferred against the decision and
decree of Civil Judge empowered as Judge Family Court Sudhnoti dated 3.8.2005,
whereby the suit of the appellant for restitution of conjugal rights was
dismissed and a decree for dissolution of marriage in favour of Respondent No.
2 was passed.
The precise facts forming the background of the instant
appeal are that Mst. Noshi Begum, Respondent No. 2, herein, filed a suit for
dissolution of marriage before Judge Family Court Sudhnoti on 26.4.2004,
whereby the amended plaint was filed on 4.5.2005. The Respondent No. 2 averred
that she was married to appellant on 4.8.2002 in lieu of dower Rs. 1,20,000/-
but after Nikah ceremony, the appellant neither take her with him nor made any
struggle in this regard. She further contended that the appellant did not pay
her any maintenance and on 4.4.2004 he divorced her through a telephonic call.
The Respondent No. 2 submitted that if her claim of divorce through a
telephonic call is not proved, the marriage may be dissolved on the ground of
Khulla. The Respondent No. 2 prayed that a decree for dissolution of marriage
may be passed in her favour.
The appellant filed a suit for restitution of conjugal
right on 9.10.2004 before Judge Family Court Sudhnoti contending therein that
Respondent No. 2 was married to him on 4.8.2002 in lieu of dower Rs. 1,20,000/-
but even after period of one year Respondent No. 1 did not send Respondent No.
2 to live with him. The appellant prayed that the decree for restitution of
conjugal rights may be passed in his favour. The respondents refuted the allegation
levelled in the plaint through their written statement filed on 8.11.2004 and
averred that the appellant has got no cause of action because he has already
divorced Respondent No. 2 through a telephonic call. The respondents further
submitted that the appellant has neither paid the dower not the maintenance
allowance; therefore, the suit is not maintainable. The respondent also refuted
the other allegation levelled in the plaint.
The learned Judge Family Court consolidated both the
suits vide order dated 31.1.2005 and later on framed the following issues on
7.6.2005 in the light of the pleadings of the parties:--
1. Whether the
defendant has divorced the plaintiff through a telephonic call on 4.4.2004.
(OPP)
2. Whether in
alternative the plaintiff is entitled to a decree for dissolution of marriage
on the ground of Khulla. (OPP)
3. Whether the
plaintiff has got cause of action. (OPP)
4. Whether Bilal
Hamza plaintiff is entitled to a decree for restitution of conjugal rights.
(OPP Bilal Hamza).
5. Relief.
In support of the claim of dissolution of marriage,
Respondent No. 2 produced Wazir Muhammad and Muhammad Saleem as her witnesses.
She also appeared in the witness-box and produced a document Exb.PA. On the
contrary, the appellant produced Tahir Mahmood and Muhammad Ameer Hamza as his
witnesses and he also entered into the witness-box.
The learned Judge Family Court after hearing the
arguments and taking into consideration the evidence produced by the parties
passed a decree for dissolution of marriage in favour of Respondent No. 2,
against the appellant and also dismissed the suit for restitution of conjugal
rights vide its decision dated 3.8.2005. Hence, this appeal.
In support of the appeal, Syed Nazir Hussain Kazmi, the
learned Advocate, argued that no written divorce was produced by the respondent
and the divorce through telephonic call was also not proved by any cogent
evidence. The learned Counsel pointed out that Respondent No. 1 has stated a
different telephone number whereas Respondent No. 2 another telephone number.
The learned Counsel also contended that the respondents have not produced any
independent and reliable evidence rather both the respondents and paternal
uncle of Respondent No. 2 appeared as a witness, inspite of that the evidence
of respondent is vague and inconsistent, which cannot be taken into
consideration, whereas it has been proved by the appellant that Respondent No.
2 is his wife who may be ordered to go and join her husband. The learned
Counsel pressed into service the submission that the learned Judge Family Court
failed to appreciate and appraise the evidence in a legal fashion; therefore,
impugned decision is not sustainable.
Mr. Asghar Ali Malik, the learned Counsel for the
respondents controverted the arguments raised by the learned Counsel for the
appellant and submitted that Respondent No. 2 has taken a specific stance in
her plaint that the appellant divorced her through a telephonic call and did
not send her any written divorce deed. The learned Counsel pointed out that
Respondent No. 2 has proved her case through cogent, clear and sufficient
evidence whereas the appellant has also produced Tahir Mahmood his maternal
uncle and his father Muhammad Ameer Hamza as his witnesses but all three of
them have failed to refute the evidence of Respondent No. 2. The learned
Counsel laid great stress upon the point that during cross-examination upon
Respondent No. 2 through a suggestion, the case of Respondent No. 2 was
admitted; therefore, the impugned decision and decree have been passed in
accordance with law and do not warrant any interference.
I have given my dispassionate thought to the arguments
addressed at Bar and perused the record with care. At the very outset, it will
be appropriate to note that Islam does not prescribe any specific mode for
dissolution of marriage. It is an overt act on the part 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 the wife or even addressed to her.
Coming to the instant case, it has been amply proved on
the record that the appellant has divorced Respondent No. 2 through a
telephonic call and later on he asked Muhammad Saleem, maternal uncle of
Respondent No. 2, to take away the divorce deed with him but he refused to do
so.
Muhammad Saleem, a witness for Respondent No. 2, has
categorically stated that he had seen divorce deed with his own eyes and
appellant was pointing the date of divorce while stating that this is divorce
deed of Respondent No. 2 and he should carry it with him. Muhammad Saleem has
further stated that he had seen with his own eyes the word "Talaq",
which was written thrice.
Mst. Noshi Begum, Respondent No. 2, has also deposed that
the appellant called her on a telephone number 43901 installed nearby her house
and pronounced the divorce. During the cross-examination it was also suggested
to her whether it is correct that when the appellant pronounced the divorce on
telephone, the other inmates of the house were
present. The above mentioned suggestion shows that the appellant has
admitted the factum of divorce. Similarly, Wazir Muhammad, father of Respondent
No. 2, testified that his daughter told him that the appellant has divorced her
through a telephonic call. He further stated that Muhammad Saleem, a witness for
the respondent, also told him that the appellant tried to hand over the divorce
deed to him but he refused to receive the same. On the other hand, Tahir
Mahmood, a witness and maternal uncle of the appellant or Ameer Hamza, a
witness and father of the appellant or the appellant himself has not stated a
single word to refute the claim of
Respondent No. 2
in their examinations-in-chief. In this manner,
Respondent No. 2 has proved the fact that the appellant has pronounced Talaq
through telephonic call by producing cogent, sufficient and reliable evidence.
I do not find any substance in this contention of the
learned Counsel for the appellant that Respondent No. 2 has not produced any
consistent or credible evidence and wrong assertion of the phone number by
father of Respondent No. 2, is by itself sufficient to discard the evidence of
Respondent No. 2.
The analysis of the above discussion is that I do not
find any non-reading or
misreading of the evidence on the
part of learned Judge Family Court; therefore, it does not warrant any
interference by this Court. Consequently, the appeal has no merits, which is
dismissed.
(A.S.) Appeal
dismissed.
