Procedure of talaq In Pakistan:
Order of Family Court, held, not
assailable in writ jurisdiction simply because Family Court failed to determine
benefits received by wife as consideration of marriage to order partial or
total restoration thereof in case of procedure
of talaq in Pakistan on additional ground of 'Khula. Procedure of talaq in
Pakistan on ground of Khula in consideration of wife's giving up her right to
dower. Admittedly, parties had lived together a few days after marriage and
their relations were not cordial from very beginning. Wife stated that after
marriage her life had become completely miserable. In procedure of talaq in
Pakistan decree passed after closing husband's evidence after giving three
opportunities to husband to produce his evidence. Held: In Such circumstances,
Khula decree did not attract interference by High Court in exercise of writ
jurisdiction.
Term reasonable scale' referred to ability of the ex-husband, and
as pre-divorce period and lddat period were conjoined therefore no serving line
could be drawn for the purposes of ability to provide the maintenance
allowance. Period of lddat depends upon the mode the marriage is terminated. In
case of death of husband, when the marriage has been consummated, the period is
four months and ten days and in case of pregnancy the period of lddat would
extend up to delivery or occasion of miscarriage. In case of death of husband;
the lddat period would commence from time of death of husband. In case of
divorce, on the other hand, wife has to wait for three menstrual courses and in
the event of wife not being subject to menstruation, the lddat period would be
three lunar months and lddat would commence from the time the procedure of
talaq in Pakistan and talaq procedure in Pakistan is adopted. Period of Iddat
is only a temporary impediment too remarriage by husband. It is a specific
period oriented. It is a relative or temporary disability.
Under Sunni Law:
Under Sunni Law a lawful
conjunction by way of marriage during lddat period renders the marriage
irregular and not void. An irregular marriage automatically become regular the
moment the bottleneck is removed i.e., lddat period expires. However, husband
marrying during lddat period cannot be made liable for consensual zina under S.
10(2), Zina Ordinance along with his marriage partner. Trial Court decreed the
suit awarding past maintenance for 4 years till the period of "iddat.
Appellate Court upheld the judgment of Trial Court. Defendant contended that
past maintenance allowance could not be granted for more than a period of 3
years. Defendant remained out of country during last five years of marriage
leaving behind the family and visited the Country only twice. Nothing was
brought on record to unsettle the factual controversies and the findings of the
Courts below. No period of limitation was prescribed under the Limitation Act,
1908 for filing suit for maintenance allowance and was governed by Article 120
of the Limitation Act, 1908 which provided period of six years for filing any
suit for which no period of limitation was prescribed. Constitutional petition
was dismissed for being without merit.
Grievance of father of minor was
that Family Court while fixing monthly maintenance allowance also fixed 15%
annual increase. Establish that father was equipped with means to discharge his
liability towards annual increase in maintenance of minor as ordered by the
Courts below irrespective of
procedure
of talaq in Pakistan. High Court declined to interfere in the award of
maintenance awarded to minor but rate of annual increase of maintenance was
reduced from 15% to 5 % annual. Minor was at liberty to approach Family Court
for increase in her maintenance due to any change in any circumstance. Petition
was allowed accordingly Islam. Marriage during lddat period was prohibited in
Islam and even during procedure of talaq in Pakistan.
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