Case Evaluation Mirza Qamar Zaman vs. Mst Tahira Begum

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Case Evaluation
Mirza Qamar Raza V. Mst Tahira Begum
PLD 1988 Karachi 169.

Presented to:
Prof. Muhammad Mushtaq

By
M.Abdullah Faizee
91-FSL/LLMHR/F-12

Content

Summary of the facts of the case
Legal issues / question of Law
Evaluation of the Judgment
Critical Review of the case
Conclusion

Brief Facts of the Case:

This is a constitutional petition

The petitioner ( Mirza Qamar Raza) was married at Karachi with respondent ( Mst Tahera Begum) in accordance with Fiqah-e-Jafriyah. The marriage was duly registered in accordance to Muslim Family Law Ordinance 1961. The rukhsati took place and marriage was consummated.

On 10-2-1982 the respondent (wife) was staying with her parents without the consent of her husband (petitioner) as alleged , and had declined to return to him to perform her conjugal obligations. The petitioner in presence of witnesses pronounced Talaq to the respondent. And also communicated the same to her by way of memorandum through registered post which was duly received by her. The same was also sent to the chairman union committee as required in Sec 7. of MFLO. Respondent by her letter addressed to the chairman union committee disputed the validity of aforesaid Talaq and its communication in writing to her. A copy of said latter also received by the petitioner.

Whereupon the petitioner addressed a further communication to the said Chairman by his latter, wherein pronouncement of Talaq to respondent, reiterated and re-affirmed by him. Said Chairman issued notice to both the parties as required under Sec 7. Of MFLO. In the meanwhile the petitioner, in further of the oral pronouncement of Talaq to respondent and executed Talaqnama to the respondent on non-Judicial stamp paper. Same was also sent to the respondent and Chairman both.

The petitioner also appointed his Vakeel to recite seegha in accordance with Fiqah-e-Jafriayh. Instead of participation in proceedings under Sec 7. Of said Ordinance Respondent initiated a family suit in Civil and Family Court in Karachi, praying to declare the said Talaq contrary to the injunctions of Islam as interpreted in accordance with Fiqah-e-Jafriyah, she also prayed for the permanent prohibited injunction against the petitioner and his Vakeel for invalid pronouncement of Talaq. Respondent also filed an application under section 151 CPC praying for the stay of operation of Talaqnama, the learned Judgment granted the said application by his order. The Petitioner field an appeal against the said order but the same was dismissed Thereupon the petitioner chose to file the above Constitutional Petition.

Legal Issues of the Case

1-The Sec 7. Of Muslim Family Law Ordinance 1961 was repugnant to the injunctions of Islam, since it excluded the application of the rules of Islamic Law of particular facts of Islam to the determination of the validity of Divorce. Sec 7. Of MFLO is against Article 2-A of the Constitution of Islamic Republic of Pakistan.

2-The oral pronunciation of Talaq is necessary condition or recommendatory in Nature under Islamic Law? Moreover the Ordinance allowed Talaq in any form whatsoever is also controversial.

3-Status of seegha by Vakeel and its conditions.

Respondent argues that the Section 7. Of MFLO is against the Article 2-A Objective Resolution of the constitution of Islamic Republic of Pakistan.

How did Court Analyze to settle the legal issues in this case :

1-The Sec 7. Of Muslim Family Law Ordinance 1961 was repugnant to the injunctions of Islam, since it excluded the application of the rules of Islamic Law of particular facts of Islam to the determination of the validity of Divorce, Sec 7. Of MFLO is against Article 2-A of the Constitution of Islamic Republic of Pakistan.

Analysis of Court:
By the help of amicus quriae and other legal sources...
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