P L D 2015 Lahore 231

 
Before Ali Baqar Najafi, J
 
MUNAS PARVEEN---Petitioner
 
Versus
 
ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF
PEACE,
SHORKOT and others---Respondents
 
Writ Petition No.26632 of 2013, decided on 4th
December, 2013.
 
(a) Criminal Procedure Code (V of 1898)---
 
---Ss. 22-A & 22-B---Penal Code (XLV of 1860), S.
494---Constitution of Pakistan,
Art. 199---Constitutional petition---Marrying
again during life time of husband---
Divorce through telephone or
SMS---Scope---Ex-husband of petitioner had allegedly
divorced her orally
through telephone and SMS---Petitioner contracted second
marriage---Respondent/uncle of ex-husband moved application before Justice of
Peace
alleging that petitioner had married another man during subsistence of
her marriage---
Justice of Peace issued directions to Station House officer to
register case against
petitioner---Validity---Ex-husband of petitioner was
neither impleaded as a party nor
came forward before the court for his
impleadment---Dowry articles of petitioner were
returned to her on the order of
the Family Court, which showed acceptance of
separation---Procedure for
pronouncing divorce had been prescribed by the legislature
in its best wisdom
in order to ensure the sanctity of institution of marriage recognizing
divorce
as a last option---Question was as to what would become of society if divorces
were allowed to take effect merely on basis of SMS---Pre-requisite for
pronouncing a
divorce was peace of mind, and the purpose and objective of such
act should be made
known to the witnesses present at the spot by the
husband---Wording of the SMS sent
by the ex-husband, in the present case, did
not categorically mention the said pre-
requisites---Constitutional petition was
disposed of with the observation that factum of
divorce would be properly
addressed and adjudicated upon by the Family Court in the
suit for restoration
of conjugal rights filed by ex-husband.
 
(b) Qanun-e-Shahadat (10 of 1984)---
 
----Arts. 73 & 164---Preliminary evidence---Scope---Information
conveyed over
modern devices such as SMS--- Such information was means of
communication
validly accepted all over the world, however the witness in whose
presence such
information was conveyed or received was always important to
prove a fact through its
verification---Although under Art.73 of the
Qanun-e-Shahadat, 1984 modern devices
were legally acceptable yet in order to
prove a fact, the required procedure had to be
followed.
 Arif Hashwani and 3 others
v. Sadruddin Hashwani and 3 others PLD 2007
Kar. 448 and The State through
Muhammad Arif Qureshi v. Kh. Abdul
Rasheed Grista and another 2011 SLR 508 ref.
 
(c) Islamic law---
 
----Pronouncement of divorce---Prerequisites---Peace
of mind, purpose and objective
of act of divorce had to be made known to the
witnesses present at the spot by the
husband which were the prerequisites of
pronouncing of divorce.
Ghulam Rasool Sial for
Petitioner.
 
Khadim Hussain Qaiser,
Addl. A.G. with Farooq ASI.
Syed Tanvir Bukhari and M.
Maqbool Ahmad Naz for Respondent No.4.
 
 
ORDER
 
ALI BAQAR NAJAFI, J.---Through this
Constitutional petition the petitioner seeks
setting aside of the order dated
10-10-2013 passed by respondent No.1/Ex-Officio
Justice of Peace, whereby
petition under sections 22-A and 22-B Cr.P.C. filed by
respondent No.4 was
accepted by issuing direction to respondent No.3/SHO to register
the case
according to the application Mark-A.
 
2. The necessary facts for the disposal of this
petition are that the petitioner was
married with one Nasir Abbas son of Allah
Ditta on 10-4-2012 and ultimately
according to the petitioner she was divorced
on 23-8-2012 in the presence of witnesses,
namely, Haq Nawaz son of Ghulam
Muhammad, Rizwan Haider son of Muhammad
Nawaz and Muhammad Ramzan son of Ahmad
telephonically and through SMS. Later
on, the petitioner filed a suit for
maintenance allowance and dowry articles on 15-9-
2012 and also filed another
suit for recovery of dower regarding plot measuring 5
Marlas on 26-9-2013
before the Judge Family Court, Shorkot. Likewise, the said Nasir
Abbas filed a
suit for restitution of conjugal rights on 13-11-2012. The said suits were
consolidated and during the proceedings the dowry articles were recovered as
per the
list prepared by the local commission. Meanwhile, respondent No.4
maternal uncle
(Maamun) of the said Nasir Abbas, filed a petition under
sections 22-A and 22-B
Cr.P.C. on 19-9-2013 stating that during the continuance
of first Nikah second Nikah
was contracted on 15-7-2013 with one Ali Nawaz son
of Mehr Noor (respondent
No.5), therefore, F.I.R. be registered. On 10-10-2013,
the impugned order was passed.
Hence, this petition.
 
3. Learned counsel for the petitioner submits that
Nasir Abbas has already divorced the
petitioner on 23-8-2012 telephonically and
through SMS in the presence of the
witnesses and whereafter the petitioner got
contracted marriage on 15-7-2013,
therefore, has not committed any offence;
that even otherwise the question whether
such divorce has taken its effect may
be decided in the suit for restitution of conjugal
rights which is pending
between the parties; that the Talaq was also well effected as the
dowry
articles have been returned to the petitioner by the said Nasir Abbas during
the
pendency of the suit for recovery of dowry articles; that respondent No.4
has nothing
to do with the allegations as ex-husband of the petitioner is not
willing to file such
petition for the registration of F.I.R. that oral Talaq
became effective in the presence of
witnesses and on the basis of the Islamic
Law for which no written procedure is
mandatory. Places reliance upon the
judgment of a Division Bench of Balochistan
High Court, Quetta in Fida Hussain
v. Mst.Najma and another (PLD 2000 Quetta 46);
that copy of an electronic
generated information can be used as a preliminary evidence
provided in Article
73 of the Qanun-e-Shahadat Order, 1984. Places reliance on Arif
Hashwani and 3
others v. Sadruddin Hashwani and 3 others (PLD 2007 Karachi 448);
that the modern
devices or techniques as computer are admissible in evidence and
places
reliance on The State through Muhammad Arif Qureshi v. Kh.Abdul Rasheed
Grista
and another (2011 SLR 508); that failure to send notice to Chairman, Union
Council will not affect divorce which becomes effective in Shariah after its
pronouncement and passing the period of Iddat. Places reliance upon Mst.Batool
Bibi
v. Muhammad Hayat and another (1995 CLC 724). Also places on record Fatwa
by
Dar-ul-Aftaa Jamia Sultania and Dar-ul-Aftaa Ahl-e-Sunnat.
 
4. Conversely, learned counsel for respondent No.4
submits that the divorce has not
become effective as the witnesses in whose
presence the divorce was pronounced are
not available; that even the cell phone
through which the SMS has been disowned by
respondent No.4 does not belong to
her husband; that the procedure prescribed under
the law of the land is aimed
at strengthening and dissolving the relationship of husband
and wife,
therefore, sending of three notices to the Union Council coupled with the
Iddat
period has been mandated; that if such practice is legalize, it will ruin the
institution of marriage.
 
5. I have heard the learned counsel for the parties
and perused the available record.
 
6. In the instant case, respondent No.4 intends to lodge
F.I.R. against the petitioner for
marrying another person during the alleged
subsistence of her marriage with his
nephew, namely, Nasir Abbas, the latter
was neither impleaded as party nor has come
before this Court for his
impleadment. The dowry articles of the petitioner have
statedly been returned
to the petitioner showing the acceptance of separation. The suit
for
restitution of conjugal rights filed by Nasir Abbas is pending against the
petitioner
where the questions raised in this petition can be answered.
 
7. The introduction of the modern devices including
the SMS through computer is one
of the means of communication which are validly
accepted all over the world.
However, the witnesses in whose presence the
information is conveyed or received are
always important to prove a fact
through its verification. The procedure for
pronouncing divorce has been
prescribed by the legislature in the best of the wisdom in
order to ensure the
sanctity of the institution of marriage recognizing divorce as a last
option. I
am afraid, what is going to be the level of the society if divorces are allowed
to take effect merely on the basis of SMS particularly in a patriarchal society
like ours.
Undoubtedly, the pre-requisites for pronouncing a divorce is the
peace of mind, the
purpose and objective of such act should be made known to
him by the witnesses
present at the spot. However, on perusal of the message in
the instant case the wording
of the SMS does not categorically mention the
above said pre-requisites. Although
under Article 73 of the Qanun-e-Shahadat
Order, 1984 the modern devices are legally
acceptable yet in order to prove a
fact, the required procedure has to be followed.
 
8. For what has been stated above, I dispose of this
petition with the observation that
the factum of divorce will be properly
addressed and adjudicated upon by the Family
Court at Shorkot in the suit for
restitution of conjugal rights. This writ petition,
therefore, stands disposed
of.
 
 
MWA/M-7/L Order
accordingly.
 
 
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