Fiqah-e-Jafria Divorce Certificate Case 2026 CLC 1.
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| Divorce process in fiqah jafrea |
فقہ جعفریہ میں طلاق کا مؤثر ہونا اور لفظ “may” کی لازمی تعبیر
تمہید
کیس کا پس منظر
قانونی سوال
عدالت کا فیصلہ
لفظ “may” کی تشریح
نتیجہ
Must read judgment.
2026 CLC1
[Islamabad]
Before Mohsin Akhtar Kayani, J BUSHRA HUSSAIN ---Petitioner
Versus
CHAIRMAN, ARBITRATION COUNCIL, ISLAMABAD and another ---Respondents
Writ Petition No. 622 of 2025, decided on 26th May, 2025.
(a) Muslim Family Laws Ordinance (VIII of 1961)-
-S. 7(1)(a) las amended by Muslim Family Laws (Second Amendment) Act (XXIX of 2021)]--Qanun-e-Shahadat (10 of 1984), Art.17(1)--Constitution of Pakistan, istan, Art. 199-Constitutional petition---Issuance of certificate of effectiveness of divorce (Certificate)---Fiqah-e-Jafria---Non-fulfillment of requirements of pronouncement of seeghajaat in presence of 02 Muslim witnesses for pronouncement of divorce-Resumption of relationship as husband and wife after compromise between the parties before the Family Court in a suit for recovery of maintenance instituted by the petitioner/wife-Petitioner filed application for cancellation of certificate on the ground that the certificate issued by the Chairman Arbitration Council was illegal, as the parties had resumed their relationship-Validity-Person belonging to Fiqah-e-Jafria can voluntarily with his own free will pronounce Talaq himself or through duly authorized attorney/Vakeel, uttering literal Arabic words seeghajaat in the physical presence of at least two witnesses, qualifying the requirement of Sub-Clause (1) of Art. 17 of Qanun-e-Shahadat, 1984, and without following the said procedure of proviso, the Talaq effectiveness certificate could not be issued-Literal Arabic pronouncement of required seeghajaat had not been pronounced even on the third Talag, thus, as per Fiqah-e-Jafria, the Talaq was not effective-Certificate was issued without verifying the pronouncement of seeghajaat, which was a mandatory requirement in cases where parties belonged to the Fiqah-e-Jaferia--Word "may" permits the Court to consider it in sense of "shall" or "must"--If the "may" used in proviso to 5. 7 of the Muslim Family Laws Ordinance, 1961, (Ordinance) is not made "mandatory" it would frustrate the entire intent of the proviso added by Second Amendment of 2021 in the Ordinance, thus, the word "may" is to be considered with reference to the whole text and the legislature has used the word "may" in the proviso which is an exception of a general rule in order to protect the rights of those parties, who belong to Fiqah-e-Jafria-High Court did not agree with the contention that word "may" should not be considered as a compulsion with the meaning of "must", thus, High Court issued a clear directive, placing a serious duty and obligation upon the Chairman of the Arbitration Council, particularly in cases governed by Fiqah-e-Jafria, to adhere to the principles ensuring the effectiveness of divorce, and to adopt the procedure as future guidelines devised by High devised by High Court-Constitutional petition was allowed, in circumstances
Syed Sajid Hussain Ahidi v. Iram Shehzadi Abidi and others PLD 2023 Lahore 38; Mst. Maryam Bano v. Hussain Ali and another 1984 CLC 1961; Syed Zouzab Imran Kazmi v. Syeda Iffat Bukhari and 2 others PLD 2025 Lahore 18; Mst. Saira Shaukat through Special Attorney v. District Collector ICT, Islamabad and 2 others 2006 YLR 1753 and The State v. Syedda Salma Begum and another PLD 1965
West Pakistan Karachi 185 rel.
(b) Muslim Family Laws Ordinance (VII of 1961)-
S. 7(1)(a) [as amended by Muslim Family Laws (Second Amendment) Act (XXIX of 20213)---Word "may"---Permissive or mandatory---Nature-Ordinarily the word "may" refers a discretion but if the whole context is considered as to what was the purpose of the legislature behind incorporating this amendment with reference to Fiqah-e-Jafria through 5. 17(1)(a) of the Ordinance, the entire concept of, "may" as to discretion stands negated-There is no absolute settled test which can determine whether a statute is 'discretionary or 'mandatory-It is the duty of the court to take into consideration the intent of the legislature and the whole scope of the statute to determine whether it is 'permissive' or 'mandatory' in nature.
SCMR 420 rel.
Ghulam Hassan v. Jamshaid Ali 2001 SCMR 1001 and Syed Zia Haider Rizvi v. Deputy Commissioner of Wealth Tax, Lahore 2011
(c) Muslim Family Laws Ordinance (VIII of 1961)-
5.7(1)(a) [as amended by Muslim Family Laws (Second Amendment) Act (XXIX of 2021)-Word "may" being an enabling word.... Effect-Discretion of authority or Court to exercise its powers-Scope-Word "may" makes a provision "enabling" and it gives the discretion to the authority or Court to exercise its power but it is usually construed as "permissive" and not "mandatory"-Word "may" used in proviso to 5. 7 of the Ordinance being an enabling word would be given meaning of a compulsion that must be followed-When the ordinary dictionary meaning of a provision of law leads to an absurd interpretation and contradicts the purpose of the law,in such situation h situation the language of t of the text can be modified to meet the intention of the legislature--Such modifications are done by changing the meaning of the word or ignoring it altogether-Such exceptional interpretation is required when a careless word is used by an ignorant draftsperson which goes against the intention of the whole statute-Such instances are indeed exceptional and courts are reluctant to substitute or add a word in a statute, but may depart from the literal rule when required to avoid absurdity. 522 rel. Julius v. Lord Bishop of Oxford, (1874-80) All ER Rep. 43 and Crawford on The Construction of Statutes 1940 edition, pages 519 to
Barrister Sara Seerat and Muhammad Asim for Petitioner. Abid Hussain Ch. for Respondent No. 1.
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