KANIZ FATIMA Versus WALI MUHAMAD

August 1, 1993 — SUPREME COURT — — — 1993 PLD 901

JUDGMENT

SALEEM AKHTAR, J.---This appeal by the leave of the Court arises from the judgment of the High
Court passed in a Constitution petition whereby the family suit filed by the appellant for recovery of
dower and maintenance in the Court of Family Judge was dismissed.

2. Appellant and respondent were married on 14-10-1975 and Nikahnama was registered under the
provisions of the Muslim Family Laws Ordinance, 1961 (hereinafter referred as the Ordinance). it
provided for a prompt dower of Rs.30,000 and 20 tolas of gold while monthly maintenance of Rs.
200 was also fixed. As the relationship between the parties became strained the appellant filed a
petition before the Martial Law Authorities complaining of non-payment of maintenance and
prompt dower. The parties entered into a written compromise on 22-9-1977 before the Martial Law
Authorities under which the respondent undertook to make payment of Rs.10,000 as prompt dower
and agreed to give 5 tolas of gold to the appellant. it was also agreed that the divorce between the
parties will take effect from 1-11-1977. As a consequence of the compromise appellant received Rs.
10,000 and 5 tolas of gold and she acknowledged that the matrimonial ties between the parties had
come to an end. Both the parties agreed that they will have no further claim in future against each
other. On 6-4-1978 the appellant filed a suit for recovery of the remaining amount of dower
(i.e. Rs. 20,000), and maintenance in the Court of Family Judge pleading that the compromise was
arrived at due to coercion by Martial Law Authorities and no notice of dissolution of marriage in
pursuance of the agreement was given to the Chairman, Union Council as provided by section 7 of
the Ordinance and therefore the marriage between the parties was still subsisting. She claimed
maintenance from May, 1977 up to the. date of decision. The suit was decreed by the learned Family
Judge against which appeal was filed by the respondent before the Additional District Judge. The
learned appellate Court held that the divorce had become effective between the parties from
1-11-1977 under the compromise and maintenance was granted up to 1-11-1977. Aggrieved by this
judgment the appellant filed a Constitution petition in the High Court. By the impugned judgment
the petition was dismissed with the following observation:---

"From the resume of the facts of the case it is clear that both the parties contracted out of the
provisions of section 7 of the Act and agreed not to have a recourse to arbitration proceedings
before the Chairman, Union Council, therefore, both of them waived the compulsory proceedings
aimed at to restore the marriage. Therefore, the petitioner cannot claim the benefit of section 7 of
the Act for the purpose of claiming maintenance."

The judgment also records that the Advocate for the appellant had contended that he would not
dispute the finding of first appellate Court in respect of dower and recovery of the golden ornaments
in view of the compromise agreement and that the finding on maintenance was being challenged
before the High Court.

3. ' At the time of granting leave it was noticed that the impugned judgement of the High Court Mst.
Kaniz Fatima v. Wali Muhammad PLD 1989 Lah. 490 was in conflict with the judgment in Mirza
Qamar Raza v. Mst. Tahira Begum and others PLD 1988 Karachi 169. The controversy seems to be
with regard to applicability and interpretation'- "of Article 2A of the Constitution. The main question
which has been discussed by these authorities is whether the Court has jurisdiction to strike down
any law which is inconsistent with Article 2A in so far as it is held to be in contravention of the
Injunctions of Islam and Muslim Law. Till the time the impugned judgment had been passed there
were several judgments of the High Court in which conflicting views were expressed. In Habib Bank
Ltd. v. Wahid Textile Mills Ltd. PLD 1989 Karachi 371 it was held that as Article 2A was not self
executory, on the touchstone of this provision the Court cannot strike down any conflict with the
principles and Injunctions of Islam. Contrary view was expressed in Ijaz Haroon v. Inani
Durrani PLD 1989 Kar. 304. Similarly, same view was reiterated in Shaukat Hussain v. Mst. Robina
and others., PLD 1989 Kar. 513, in which it was held that section 7 of the Ordinance was not in
accordance with Islamic Law and was hit by Article 2A.

4. The effect and interpretation of Article 2-A was considered by a Full Bench of this Court in Hakim
Khan and others v. Government of Pakistan and others PLD 1992 Supreme Court 595 decided on
9-7-1992. In this judgment all the judgments of this Court as well as of the High Courts and the
Federal Shariat Court have been noted and considered. Till then in all there were 39 judgments in
which Article 2A had directly been referred or observations had been made on its applicability and
effect. The main question under consideration in Hakim Khan's case was whether Article 2A which
was inserted by President's Order No. 14 of 1985 in the Constitution of Pakistan, 1973 and made its
substantive part has resulted in denuding the President of the power of commuting the sentence of
death passed on persons guilty of murder despite the power conferred on him by Article 45 to do so
and whether the provision of said Article 45 to this extent has become ineffective. This Court did not
- approve the - observation of the Lahore 'High Court that Article no 2A an overwhelming position in
the Constitution" and is now "in control of the Constitution" and ruled that the Objectives.
Resolution is not a supra-Constitutional docu . ment and is not in control of the. Constitution., While
considering this question, our learned brother Dr. Nasim Hasan Shah, J.(as he then was) referred to
the proceedings and speeches made in the Constituent Assembly of Pakistan in which the resolution
was debated for 5 days and after considering the meaning of the word "substantive" as used in
Article 2A and considering the principles of interpretation of Constitution it was observed as
follows:---

"Now the well-established rule of interpretation is that a Constitution has to be read as a whole and
that it is the duty of the Court to have recourse to the whole instrument in order to ascertain the
true intent and meaning of any particular provision. And where any apparent repugnancy appears to
exist between its different provisions, the Court should harmonise them, if possible
(see Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic
of Pakistan PLD 1957 SC 219 at p. 235).

This rule of interpretation does not appear to have been given effect to in the judgment of the High
Court on its view that Article 2A is a supra-Constitutional provision. Because, if this be its true status
then the above-quoted clause would require the framing of an entirely new Constitution. And even if
Article 2A really meant that after its introduction it is to become in control of the other provisions of
the Constitution, then most of the Articles of the existing Constitution win become questionable on
the ground of their alleged inconsistency with the provisions of the Objectives Resolution. According
to the opening clause of this Resolution the authority which Almighty Allah has delegated to the
State of Pakistan is to be exercised through its people only "within the limits prescribed by Him".
Thus all the provisions of the existing Constitution will be challenge able before Courts of law on the
ground that these provisions are not "within the limits of Allah" and are in, transgression thereof.
Thus, the law regarding political parties, mode of election, the entire structure of Government as
embodied in the Constitution, the powers and privileges of the President and other functionaries of
the Government will be open to question. Indeed, the very basis on which the Constitution is
founded namely the trichotomy of powers, i.e. that the three great organs of the State have their
own particular spheres of authority wherein they exercise their respective powers or the system of
checks and balances could be challenged, alongwith all the ancillary provisions embodied in the
1973-Constitution in relation thereto. Thus, instead of making the 1973-Constitution more
purposeful, such an interpretation of Article 2A, namely that it is in control of all the other provisions
of the Constitution would result in undermining it and pave the way for its eventual destruction or at
least its continuance in its present form. This presumably was not the intention of General
Muhammad Ziaul Haq while adding Article 2A in the Constitution under the Revival of the
Constitution Order, 1985 (President's Order No. 14/1985). It certainly was not the intention of the
law-makers who enacted Article 270-A (vide section 19 of the Constitution (Eighth Amendment) Act,
1985 which provision affirmed and adopted, inter alia, P.O. 14/1985 (whereby Article 2A was
inserted in the Constitution). Their intention simply was that the Objectives Resolution should no
longer be treated merely as a declaration of intent but should enjoy the status of a substantive
provision and become equal in weight and status as the other substantive provisions of the
Constitution. In case any inconsistency was found to exist between the provisions of the 1973
Constitution and those of the Objectives Resolution would, they expected, be harmonised by the
Courts in accordance with the well e stablished rules of interpretation of the Constitutional
documents already mentioned. Being creatures of the Constitution it was not visualised that they
could not annul any existing Constitutional provisions (on the plea of its repugnancy with the
provisions of Article 2A as no Court, operating under a Constitution, can do so. To use the
picturesque words of Mr. Justice (Rtd.) Sh. Aftab Hussain, former Chief Justice of the Federal Shariat
Court, in his disclosure on the subject of "the Shariat Bill and its implications" PLD 1986 Journal 327,

The Courts are the creation of the Constitution and on no principle of law can they be allowed to cut
the tree on which they are perched". The learned Chief Justice, in the same discourse, in which he
made the above observation, proceeded to observe that "the objection in respect of the un-Islamic
character of the Constitution is more ill advised. It was passed by a Parliament consisting
of renowned Ulema representing all our politico-religious organisations all of whom approved it.
This is sufficient certificate for its Islamic character. If someone thinks that some of its provisions are
contrary to Sharia, he should raise the issue in the Majfis-i-Shoora (Parliament)

Obviously, these observations flow from his finding that it is not open to Courts to invalidate a
provision of the Constitution, being creatures of the same Constitution. According to him, even if the
inconsistency alleged is in relation to an Islamic Injunction, the issue should be raised in the
Mailis-i-Shoora and the remedy obtained through it (Parliament) rather than from the Courts."

It was further observed that the Objectives Resolution served as beacon fight for the
Constitution-makers and guided 'them to formulate such provisions of the Constitution which reflect
ideals and objectives set forth therein, but this guideline after the Constitution had been framed was
to be applied as follows:---

"However, when a Constitution already stands framed (in 1973) by the National Assembly of
Pakistan exercising plenary powers in this behalf wherein detailed provisions in respect of all matters
referred to in the Objectives Resolution have already been made -and Article 2-A was made a
mandatory part thereof much later i.e. after 1985 accordingly now when a question arises whether
any of the provisions of the 1973 Constitution exceeds in any particular respect, the limits prescribed
by Allah Almighty (within which His people alone can act) and some inconsistency is shown to exist
between the existing provision of the Constitution and the limits to-which the man-made law can
extend; this inconsistency will be resolved in the same manner as was originally envisaged by the
authors and movers of the Objectives Resolution namely by the National Assembly itself. In practical
terms, this implies in the changed. context, that the impugned provision of the Constitution shall be
corrected by suitably amending it through the amendment process laid down in the Constitution
itself."

It was also observed:-

"Accordingly, now if any question is raised in connection with the validity of any existing provision of
the Constitution on the ground that it transgresses the limits prescribed by Allah Almighty (within
which His people were competent to make laws) such a question can only be resolved by the
Majlis-i-Shoora (Parliament),-which can, if the plea is well-founded, take the necessary remedial
action by making suitable amendments in the impugned provision in order to bring it within the
limits prescribed by Allah Almighty.

Accordingly, in the instant case, if the High Court considered that the existing provision of Article 45
of the Constitution contravened the Injunctions of Islam in some respects it should have brought the
transgression to the notice of the Parliament which alone was competent to amend the
Constitution, and could initiate remedial legislation to bring the impugned provision in conformity
with the Injunctions of Islam."

Agreeing with the afore stated observations, our learned brother Shariur Rahman, J, subscribed his
separate opinion in which all the judgments of various Courts have been mentioned and it was
observed as follows:---

"The ascertainment of the absolute principles of Islamic Law with regard to political power, its
distribution and delegation and financial institutions is itself a matter requiring detailed study,
thorough research and meaningful debtate before acquiring concrete shape so as to be adopted as a
test of repugnancy of the Constitutional provisions. It cannot summarily be done. Such an exercise
can more appropriately be undertaken under the control and supervision of the legislature and the
expert bodies like the Islamic Ideology Council at Islamic Research Institute. The provisions of Article
2A were never intended at any stage to be self-executory or to be adopted as a test of repugnancy
or of contrariety. It was beyond the power of the Court to have applied the test of repugnancy by
invoking Article 2A of the Constitution for striking down any other provision of the Constitution
(Article 45).

The Court's primary duty is to adjudicate by reference to positive law in a manner to lend certainty,
clarity and precision to the application of law to concrete questions of law and fact necessarily
required to be decided. The Court should not undertake examination of theoretical academic
questions nor should ordinarily look for anomalies in the Constitution with a view to suggest to
Parliament amendment or improvement in the Constitution. If the introduction of Article 2A of the
Constitution as a substantive provision of the Constitution does not by itself authorise the Court to
adopt it as a test of repugnancy with regard to the other Constitutional provisions it would be better
for the superior Courts not to undertake this exercise or to record opinions on merits with regard to
such repugnancy. That would be a commitment not conducive to the purely judicial functions that
the Courts are required to perform under the Constitution."

5. The question arises whether the principles of Hakim Khan's case (supra) can be applied to cases
where the provision of any enactment and not the Constitution is to be considered and challenged
on the plea that it is hit by Article 2A. As is obvious from the afore stated weighty observations
Article 2A cannot be pressed into service for striking down any provision of the Constitution on the
grounds that it is not self-executory and also that another provision of the Constitution cannot be
struck down being in conflict with any other provision of the Constitution. The last principle
enunciated may not be applicable while dealing with the provisions of any enactment which may be
in conflict with the provisions of the Constitution. The different Constitutional provisions which are
not self-executing and which are self executing has been laid down by our learned brother Shafiur
Rahman, J., iii Hakim Khan's case and reliance has been placed on Bindra's Interpretation of Statutes,
7th Edition. The self-executing provision not only confers a right but it provides for its protection and
a further duty is cast to enforce it without the aid of legislative enactment. There may be supporting
legislative enactment which may flow from such self-executing provisions of the Constitution, but
they will not change the character of the self-executing provisions of the Constitution nor will they
be dependent upon such supporting legislation. But where merely a "policy has been laid down or
some guidelines have been provided", they are dependent upon supporting legislations and
enactments because without them the same cannot be enforced by themselves. Sometimes, as in
our Constitution, procedure is provided for enforcing or making such non-self-executing provisions
operative. Therefore, in such circumstances, the non self-executing provisions of the Constitution
serve as a beacon light for the enactment of laws by the legislature and also for making rules and
regulations which have the force of law.

6. Article 2A makes the Objectives Resolution a substantive part of the Constitution. The Objectives
Resolution inter alia provides that the sovereignty over the entire universe belongs to Allah Almighty
alone and the authority which He has delegated to the State of Pakistan, through its people for being
exercised within the limits prescribed -by Him is a sacred trust. The Muslims shall be enabled to
order their lives in the individual and collective spheres in accordance with the teachings and
requirements of Islam as set out in the Holy Quran and the Sunnah. It goes on to provide for making
adequate provisions for guaranteeing fundamental rights, safeguarding the interests of minorities
and backward and depressed classes, and ensures the independence of judiciary. These high ideals
were set out to be incorporated in the Constitution and on the basis of these guidelines the
Constitution was framed and the laws must also be framed. A close scrutiny of the Preamble to the
Constitution will ,show that in fact the provisions of the Objectives Resolution have almost been
reproduced and incorporated in it. To ensure the Islamic character of laws Article 227 was enacted
which provides that all existing laws shall be brought in conformity with the Injunctions of Islam as
laid down in the Holy Qur'an and Sunnah and no law shall be enacted which is repugnant to such
Injunctions' Article 227(l) therefore not only declares to bring die, existing laws in conformity with
the injunctions of Islam, but it further commands the Legislature not to enact any law which is
repugnant to such injunctions. Therefore, it is not only the affirmance of the Objectives but even the
limitations have been placed on the Legislature. Article 227(l) contemplates two different situations.
First is in respect of the existing laws and the second is the negative command prohibiting
enactment of law which is repugnant to Injunctions of Islam. Clause (2) gives a further direction that
Article 227(l) can be enforced and implemented only in the manner as specified to Part IX of the
Constitution. It implies that enforcement of Article 227(l) is permitted in the manner provided in Part
IX alone. Such procedure is provided in Articles 229 and 230. So far as existing laws are concerned as
required by Article 230(l)(c) the Islamic Council shall make recommendations for bringing them in
conformity with the Injunctions of Islam and the stages by which such measures should be brought
into effect. Under clause (4) of Article 230 the Islamic Council shall submit annual interim report but
the final report shall be submitted with in seven years of its appointment. However, there is no bar
in submitting final report earlier as clause (4) fixes the outer limit only and not the inner limit.. On
submission of either report the parliament or the Assembly after considering -it shall enact law
within a period not exceeding two years of the final report. The Islamic Council on reference as
provided in Article 230 shall advise whether a proposed law is not repugnant to the Injunctions of
Islam. Except clause (1)(c) of Article 230 all its clauses relate to advice and recommendation in
framing laws. The entire exercise is to review the laws and bring them in conformity with the
Injunctions of Islam and it is left to the Legislature to enact or amend the laws to bring them in
conformity with the Injunctions of Islam. However, to achieve the same object, Articles 203-A to
203-J were introduced under Chapter 3-A of Part VII of the Constitution creating Federal Shariat
Court and Shariat Appellate Bench of the Supreme Court. The effect of these provisions has been
discussed in detail in Hakim Khan's case. However, so far the effect of Article 227 is concerned, it was
elucidated in Aziz A. Sheikh v. Commissioner of Income Tax PLD 1989 SC 613 where at page 626 it
was observed by Muhammad Afzal Zullah, J. (as he then was):---

"It is true that with regard to the statutory enactments Article 227 in its clause (2) commands that:
effect shall be given to the afore discussed negative command in clause (1), only in the manner
provided in this part (Part IX)'. And thus it may be argued, it also applies to statutory rules. But, this
prohibition in clause (2) of Article 227 does not apply to decisions by functionaries of State where in
the judicial, quasi-judicial or other spheres involving exercise of judgment, as distinguished from
exercise of law-making or statutory rule-making,"" authority, they take decisions. In other words
whatever a decision is contained in any such judgment of any such functionary which lays ,down a
rule of law or declares so as a rule of law the superior Courts shall be within their competence in a
properly instituted proceedings to strike it down both under the general mandate contained in
clause (1) of Article 227 as well as under Article 2-A read with the Objectives Resolution."

7-These provisions of the Constitution lay down restrictive guidelines not to enact any law, rule or
regulation having the force of law in conflict with the Injunctions of Islam. All persons exercising
authority in Pakistan must not' act beyond the boundaries and limitations of Article 227(l) read with
Article 2-A. The following observation of Kaikaus, J. in Jamal Shah v. The I Member election
Commission, Government of Pakistan, Lahore PLD 19661 SC 1 analysing the effect of Article 2 of the
late Constitution of 1962 may illustrate the point:---

"It embodies an important charter. It prevents the Government from taking any action in this
country for which there is no legal sanction, and it at the same time debars the Legislature from
creating an authority whose actions are not subject to law. The Legislature cannot, in the face of
Article 2 enact that whatever action a particular person may take shall be immune from challenge.
All persons exercising authority in Pakistan must do so only in accordance with law.

In Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 at p. 59E Haleem, Actg. CJ. (as he then
was) referring to the afore quoted passage and Province of East Pakistan v. Sirajuddin
Patwari PLD 1966 SC 854 analysed the effect of Article 2 as follows:---

"A clear distinction appears from the above as to the contents of Article 2, in that it is not available
for testing the vires of the law itself but only the actions under the law, which could be judicially
reviewed as for their validity."

To support this view reliance was placed on Muhammad Yusuf v. Chief Settlement and Rehabilitation
Commissioner PLD 1968 SC 101 and Muhammad Akhtar Hussain v. Government of West
Pakistan PLD 1970 SC 146. Articles 2 and 2A fall in the same category. For interpretation of statutes
and in cases where administrative decisions affecting individual's rights and liberties have been
challenged, principles of Islamic Law and Injunctions of the Islam have to be kept in view and
applied. The Superior Courts may not strike down such laws, rules and regulations on the touchstone
of Article ZA or Article 227(l), but the actions under law can be tested in cases where judicial review
is permissible.
8. In this context it may be observed that while interpreting Constitution, enactments, rules and
regulations having the force of law and examining orders, acts and actions of Government
functionaries/authorities the Court is competent to apply well-recognised principles of Islamic
Common Law and such interpretation which is in conformity with the Injunctions of Islam. In the
fields not occupied by statutory dispensation, principles of Islamic Common Law or principles in
conformity with Injunctions of Islam can be pressed into service.

9. Article 2A is one of the provisions of the Constitution which strives at bringing the existing laws in
conformity with .the Injunctions of Islam and also see to it that no law in conflict with such
Injunctions is legislated. The method for testing such legislation and enactments has been provided
under the Constitution. One is provided in Article 227 in Part IX of the Constitution and the other and
more effective method is provided by Chapter 3-A of Part VII of the Constitution, that is the Federal
Shariat Court. Article 203-D vests powers and jurisdiction in the Federal Shariat Court to examine
and decide the question whether or not any law or provision of law is repugnant to the

Injunctions of Islam. On coming to an affirmative answer it shall give its decision with reasoning for
holding such an opinion and shall specify the day on which the decision shall take effect. However, if
any party files an appeal before the Supreme Court, effect shall not be given till such time the appeal
is disposed of. Consequences of declaring any law or provision of law to be repugnant to the
Injunctions of Islam are contained in Article 203-1)(3). The President and the Governor in cases of
law within their respective jurisdiction shall take steps to amend the law SO as to bring such law or
provision of law in conformity with the Injunctions of Islam and such law or provision of law shall

cease to have effect on the day on which the decision of the Court takes effect. Therefore, a proper
scrutiny of the provisions of law by the Federal Shariat Court and the Shariat Appellate Bench of the
Supreme Court with an interregnum period has been provided to enable the President and the
Governor, as the case may be, to -move the Legislature to bring the law in conformity with the
Injunctions of Islam. The intervening period has been provided to enable the Legislature to legislate
proper laws and there may not be a vacuum of lawlessness which may create complications and
confusion. The process of Islamisation of the laws is an important and difficult subject. The lead
given by Pakistan in this regard is being watched with interest by all the Muslim countries who are
anxious to bring their laws in conformity with the injunctions of Islam and 'by the non-Muslim
countries as wen. Any hasty action without the process of ljma' at Ummah level may lead to
difficulties and confusion which may prove irreversible. Furthermore, due to sudden change,

complex problems in economic, commercial and financial field ' s may arise creating difficulties.
However, it does not mean that in the fear of such new controversies and problems the process of
Islamisation may be retarded or stopped. It is an ongoing process. It has to take effect with utmost
despatch, vision and regularity. The authorised agencies under the Constitution are not to wait for
any case or reference to come to the Court or to the Council, but they can suo motu take up the laws
or the provisions of laws and examine them on the test of Islamic injunctions.

The situation which crystallises is that for existing laws and proposed laws Constitutional
dispensation has been provided to bring them - in conformity with the Injunctions of Islam which is
required to be followed. At' this stage it is pertinent to point out that the Courts are not vested with
the jurisdiction to declare a law void on the touchstone of Article 2-A as distinguished from Article 8.
There seems to be marked difference in the phraseolgy of Article 2-A and the fundamental rights
conferred by Part II of the Constitution. Article 8 makes any law which is inconsistent with the
fundamental rights to the extent of such inconsistency void. Article 2-A is not couched in similar
language with similar effect. Article 8(2) imposes a restriction on the State which includes Federal
Government, Majlis-i-Shoora (Parliament), a Provincial Government or Provincial Assembly or such
local or other authorities in Pakistan as required by law empowered to impose any tax or cess, not to
make any law which in any manner takes away or abridges the fundamental rights. Again, similar
provisions are not provided in Article 2-A. It may be argued that Article 227 gives the same effect,
but that would not be correct. The phraseology of both the provisions i.e. Article 8 and Article 227 is
completely different and furthermore while imposing a restriction on the Legislature and
commanding to bring all laws in conformity with the Injunctions of Islam it has simultaneously been
provided in clause (2) that clause (1) shall be given effect to only in the manner provided in Part IX
Therefore, the manner in which clause (1) of Article 227 which may be read in conjunction with
Article 2A has been provided and limited. further it may be observed that Article 199(2) provides
that subject to the Constitution the right to move a High Court for the enforcement of any of the
fundamental rights conferred by Chapter 1 of Part II shall not be abridged. Therefore, the right to
enforce fundamental rights through the High Court cannot be curtailed and this provision is subject
to the Constitution alone. In a more wider manner under Article 184 Supreme Court has power to
enforce fundamental Tights, Again, such provisions have not been made to enforce Article 2A in
the same manner as the fundamental rights can be enforced or the laws can be tested on the
touchstone of fundamental rights. However, it may be considered that can law which is inconsistent
with the Injunctions of Islam involves violation of fundamental rights and be struck down? As no
arguments have been addressed on this aspect of the case, we will keep this question open for
decision in an appropriate case. In any event in the present case this question may not arise as under
Article 8(3)(b) the provisions of Article 8 will not apply to the Muslim Family Laws Ordinance, 1961
and cannot be declared void in so far as it is inconsistent with the fundamental rights.

10. Now coming to the present case we find that the learned Judge of the High Court has held that in
view of the compromise between the parties both of them had waived the compulsory proceedings
under section 7 of the Ordinance and therefore the appellant could not claim the benefit of section 7

of the Ordinance for the purpose of claiming maintenance. It may first be noticed that the Muslim
Family Laws Ordinance is an existing law which has not so far been declared by the Federal Shariat
Court or by the Shariat Appellate Bench of the Supreme Court in conflict with the provisions of

Islamic Injunctions. Nothing has been brought on record to show that the Council of Islamic Ideology
has made any recommend in this regard. The learned counsel for the appellant has referred to Allah
Dad v. Mukhtar Ahmad and another 1992 SCMR 1273 where it has been observed that in the
absence of notice under section 7 of the Ordinance Talaq becomes effective and reliance was placed
on Mirza Qamar Raza v. Mst. Tahira Begurn and others PLD 1988 Kar. 169 where on the basis of
Article 2A while exercising Constitutional jurisdiction in a family matter section 7 of the Ordinance
was declared to be void and against the Injunctions of Islam. With respect it may be pointed out that
the jurisdiction of the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court
does not extend to the Constitution and the Family Laws. Furthermore, Mirza Qamar Raza's case was
set aside by a Bench of the Supreme Court on the ground that elucidation on the question

of validity of section 7 on the touchstone of Article 2-A was not required in the facts and
circumstances as it is an accepted principle that if -a case can be decided on other issues properly, it
is not necessary to enter into Constitutional issues. In Allah Dad's case decision would be made on
the basis of Mst. Bashiran and others v. Muhammad Hussain and another PLD 1988 SC 186

which has been noted by the learned Judge in para. 21 of that judgment. As Allah Dad's case could
be decided on the principles of Mst. Bashiran's case, there was no need to enter into questions of
Constitutional issues particularly so when it did not fall within the jurisdiction of the Court. As
regards notice of Talaq reference can be made to the following judgments:---

(1) Syed Ali Nawaz Gardezi v. IA.-Col. Muhammad Yusuf PLD 1963 SC 51 where it was observed that
if husband opts not to give notice perhaps he may be deemed to have revoked pronoucement of
Talaq.

(2) Abdul Manan v. Safurun 'Nessa 1970 SCMR 845 where it was observed that if no notice under
section 7(3) of the Ordinance is given divorce "is yet to be effective".

These judgments were followed in Muhammad Salahuddin v. Muhammad Nazir Siddiqui 1984 SCMR
583 and Junaid Ali v. Abdul Qadir 1987 SCMR 518. In the last judgment our learned brother Shaftur
Rahman, J. observed that the "statute takes over where the parties by settlement arrive, at
dissolution". Section 7 was held to be observed even in such circumstances. The observation K in &
impugned judgment as contained in para. 55 reproduced above, is not in conformity with the law
laid down by this Court which had interpreted section 7 of the Ordinance.

11 So far the observations made in Syed Ali Nawaz Gardezi's case, it may be observed that failure to
send notice of Talaq to the Chairman of the Union Council does not by itself lead to the conclusion
that Talaq has been revoked. It may only be ineffective but not revoked. This controversy should be
considered from practical and purposive point of view taking into consideration the facts and
circumstances of each case. In the present case the appellant having, matrimonial disputes
particularly relating to payment of prompt dower and maintenance, filed an application before the
Martial Law Authorities where both the parties appeared. The stand taken by the respondent was
that he had divorcedthe appellant on z /-6-1976, but  she denied having received any copy of the
Talaq or notice. The parties settled their dispute and two documents were executed. The appellant
admits her signature on these documents. The first document is dated 22-9-1977 in which the
respondent has declared that he would pay Rs. 1&,000 and also deliver 5 tolas of gold to the
appellant on 5-10-1977. This document is signed by the appellant. The other document is dated
1-11-1977 in which the respondent stated that he had divorced the appellant on 27-8-1976 and in
pursuance of that divorce he gain reiterated to divorce her on 1-11-1977 before the witnesses and
further stated that in terms of settlement, dated 22-9-1977 Rs. 10,000 and 5 tolas of gold are
delivered to the appellant. It is further stated that the appellant win have no claim against him. The
next document is also, dated 1-11-1977 executed by the appellant and also signed by the
respondent. It was signed in the presence, of a Military Officer and the S.H.O. It is a document and
declaration by the ,appellant in which it has been stated that the respondent had divorced her on
27-8-1976, but it was not received by her. Today on 1-11-1977 "the respondent in the presence of
the witnesses has divorced me" and she has received Rs. 10,000 and 5 tolas of gold as agreed in
terms of settlement dated 22-9-1977. She also stated that she will have no legal right or institute any
legal proceedings against the respondent., The appellant had stated in her evidence that these
documents were signed by him without reading them and under force and threat by the Martial Law
Authorities. The appellant had herself filed the application before the Martial Law Authorities in
pursuance of which proceedings were drawn and documents were executed. When the
appellant filed suit  for recovery of maintenance in March 1978 it was pleaded that she had made
application before the Martial Law Authorities where the respondent pleaded that he had divorced
her but she contended that as provisions of section 7 of the Ordinance were not complied with,
there was no effective divorce under law. It is significant to note that not a single word has been
stated that any settlement was arrived at and her signatures were obtained on those documents by
force or threat. The suit had been filed only for maintenance and not for the dower debt. This fact
lends support that the appellant had received the dower debt in terms of the settlement and had
accepted it and that is why the suit for maintenance was filed ignoring the fact that she had been
divorced and without pleading that divorce, dated 1-12-1977 was illegal, not binding and not
effective. In these facts It is to be consideredwhether strict construction should be given to section 7
of the Ordinance. The provisions of section 7 of the Ordinance have remained controversial from
the very beginning and there are conflicting views in general about it. In view of the Constitutional
restraints the Courts cannot give any verdict on the conflicting claims challenging or justifying the
provisions of section 7 of the Ordinance. However, keeping in view the facts of each case the.
applicability and interpretation of section 7 has to be construed in that light. In a case where with
the consent of both the parties divorce is effected and confirmed in writing under their undisputed
signatures section 7 should not be strictly construed particularly in cases where penal provision of
section 7(2) is to be enforced because in such cases the- parties do not wilfully commit breach and
bona fide believe that they have been divorced with the consent of each other and sending of notice
to the Chairman, Union Council, is merely a formality. The notice can be sent at any time thereafter
to comply with the provisions of section 7. Where such view has been taken but its validity has been
challenged the Court would be justified to refuse to issue writ and exercise its jurisdiction.

We, therefore, dismiss the appeal, but completely on different grounds.

M.B.A./K-225/S

Appeal dismissed.