Judgement

Introduction

The Applicant-Petitioner-Respondent (hereinafter referred to as the “Respondent” or the “Applicant”) married the Respondent-Respondent-Appellant (hereinafter referred to as the “Appellant”) under the Muslim Marriage and Divorce Act (hereinafter referred to as the “MMDA”) on the 6^th January 2002.

The Appellant has sired 4 children borne by the Respondent within their marriage; since then, they lived happily until the differences started to appear in their homefront. There had been some disputes in their matrimony due to the Appellant’s behaviour; and also, his contracting a second marriage to a Moroccan lady. Even thereafter, the Respondent tolerated her husband and his behaviour until it became intolerable. Consequently, she decided to file an application in terms of Section 28(1) of the MMDA for a Fasah divorce. Having filed the said application for a divorce, she also filed an affidavit dated 19^th June 2019.

The affidavit filed on the 19^th June 2019 was supported by the affidavit of her brother who also has categorically and unequivocally supported the facts stated in the original affidavit by the Respondent and moved for a Fasah divorce. The second affidavit filed by the Respondent dated 31^st January 2020 also asked for a Fasah divorce in unequivocal terms.

Then, in replying to the said affidavits, the Appellant filed a letter and denied that any cause of action had accrued to the Respondent for her to seek a Fasah divorce.

However, at the inquiry before the Quazi, instead of a Fasah divorce sought by the Respondent, the learned Quazi had given a Mubarah divorce in favour of the Respondent. Being aggrieved by the order granting the Mubarah divorce in favour of the wife (the Respondent), the Respondent went to the Board of Quazi to revise the said order by way of a revision application.

By the impugned order of the Board of Quazi marked P9, dated 11^th February 2023, the Board of Quazi set aside the Mubarah divorce granted in favour of the wife (the Respondent), and sent the case back to the Quazi to consider relevant evidence and then make an order on the application for a Fasah divorce sought by the wife (the Respondent).

Being aggrieved by the said order, the Appellant appealed to this Court. The matter was argued before me and my learned brother on 22^nd June 2025 and resumed on 1^st September 2025, during which the following arguments were advanced.

However, in addition to the written submissions filed in terms of the rules, the counsel filed post- argument submissions as well, wherein the counsel for the Appellant took up two points which I will refer to in the course of my judgment. In addition, Mr. Nadvi Bahaudeen also replied to the said two points in his submissions filed subsequent to the oral submissions made at the hearing on the said date.

Arguments

The first contention of Mr. Shabry is that, on a perusal of the application marked as P1, along with the Petition, the original Applicant has made the application not in terms of Section 28(1) but under Section 28(2) of the MMDA. The divorce obtainable under Section 28(1) of the MMDA is a Fasah divorce, whilst Section 28(2) of the MMDA provides for Khula and Mubarah divorces. Therefore, there is no question of converting a Fasah divorce into a Mubarah divorce, as the Applicant made a general, undifferentiated application to obtain a divorce, without expressly seeking a Fasah divorce in terms of Section 28(1) of the MMDA.

To buttress his argument, he relied upon the documents marked Y5 and Y6 as those documents have been submitted based on Mubarah divorces. Further, Mr. Shabry argued that there is no answer to the application made before the Quazi Court, under Section 27 of the MMDA by the husband, and Section 28 of the MMDA by the wife.

In addition to that, he contended that no formal pleadings are required to be filed in the proceedings before the learned Quazi; and also, no evidence is taken which is subject to cross-examination by the opposing counsel at t