PLJ
2011 Lahore 336
Present:
Ijaz-ul-Hassan, J.
Ms.
PARNIAN AROOJ--Petitioner
versus
MEHMOOD
SADIQ & another--Respondents
W.P.
No. 17957 of 2009, decided on 7.12.2009.
Muslim
Family Laws Ordinance, 1961 (VIII of 1961)--
----S.
7(1)--West Pakistan Muslim Family Rules under the Muslim Family Laws Ordinance,
1961--Rule 3(b)--Pronouncement of divorce--Service of notice of divorce--Change
of residence of wife--Question of effectiveness of talaq--Contention of
petitioner that service of notice at her current address, are of no legal
effect, that should have been filed in union council where at the time of
pronouncement of divorce she was residing--Held: Husband proceeded to take
steps including pronouncement of divorce afresh and sent intimation to all
concerned including the petitioner, her two brothers and Administrator Union
Committee--Present petition was yet another attempt on the part of the
petitioner to delay what had unfortunately become inevitable. [P. 343] A
Process
of Re-conciliation--
----Law
provides a mechanism where under the parties are provided an opportunity to
reconcile their differences through intermediaries by engaging in the process
of re-conciliation through arbitrators--However, where such efforts fail,
despite lapse of three months, law presumes that re-conciliation is not
possible and there has been an irretrievable break down--Thereupon the parties
were allowed to undo the marriage tie and both parties could walk away, if they
so wish with dignity and grace. [P. 343] B
Muslim
Family Laws Ordinance, 1961 (VIII of 1961)--
----Preamble--West
Pakistan Muslim Family Law Rules, 1961, Preamble--Law and rules are not meant
to prolonge the agony for one party or the other on the basis of technicalities
and hairsplitting, such is not the intention of law. [P. 343] C
Muslim
Family Laws Ordinance, 1961 (VIII of 1961)--
----S.
7(1)--West Pakistan Muslim Family Laws Rules, 1961--R. 3(b)--Scope
of--Provisions of S. 7(1) and Rule 3(b) are directory in nature as no penalty
is provided for their non-compliance--Non service of notice is a mere
irregularity and does not effect validity of a divorce validly pronounced and
communicated--Petition dismissed. [P.
343] D
PLD 2005 Kar. 358, 1992 SCMR 1272 &
1994 SCMR 2098 rel.
Sh.
Shahid Waheed, Advocate for Petitioner.
Ch.
Muhammad Ameen Javed, Advocate for Respondents.
Date
of hearing: 16.11.2009.
Judgment
This
petition arises from proceedings for dissolution of marriage initiated by
Respondent No. 1 against the petitioner. The petitioner and Respondent No. 1
were married on 27.02.1992 at Lahore. They have two sons and
a daughter from the marriage. The marriage could not sustain. According to the
petitioner, she was thrown out of the home of the respondent on 11.11.2008. The
petitioner has close relatives living in Lahore. The Nikah Nama
indicates that she was residing at Model Town, Lahore at the time of her
marriage. Presently, one of the petitioner's brother's resides at the said
address. The younger brother of the petitioner lives in Eden Canal Villas,
Thokar Niaz Beg, Lahore. Yet another brother of
the petitioner resides at Army Flats (MOQ), Girja Chowk, Tufail Road, Lahore Cantt.
2. It appears from the record that after
pronouncement of divorce on the petitioner, Respondent No. 1 signed and
executed a divorce deed on 27.02.1992, which was duly signed and attested by
two witnesses. A copy of the divorce deed alongwith a cover letter was sent to
Chairman Arbitration Council No. 127 Model Town Lahore. The said office sent a
notice at the aforesaid address. The notice was received by Mr. Hassan Kamran
Bashir, who filed an application before the Chairman Arbitration Council Union
Council No. 127, Model Town, Lahore stating that his sister was residing with
her younger brother namely Hassan Danial Bashir at Eden Canal Villas, Thokar
Niaz Beg, Lahore.
3. While the aforesaid events were occurring,
two significant events took place: First, the petitioner filed an application
under Section 9 of the Muslim Family Laws Ordinance, 1961 before Union Council
No. 119, Shah Pur, District Lahore within whose
jurisdiction the property in Eden Canal is situated. The
petitioner claimed that at the time of pronouncement of divorce, she was
residing at the aforesaid address. The said Union Council has since passed an
order directing the respondent to pay a sum of Rs. 100,000/- per month to the
petitioner as maintenance from 11.11.2008 to 10.04.2009. A direction has also
been issued that since the amount due has not been paid, the same be recovered
from Respondent No. 1 as arrears of land revenue. The second significant event
was that the petitioner filed W.P. No. 4481/2009 on 06.03.2009 alleging that a
notice of divorce had been filed by Respondent No. 1 with Union Council No.
127, Model Town, Lahore. Her older brother had
informed them that since the petitioner was not residing in Model Town, the said Union Council
had no jurisdiction to proceed with the matter. She alleged that despite having
passed an order that Union Council 127 Model Town, Lahore had no jurisdiction in
the matter, the said Union Council was going to recall its previous order dated
28.01.2009 and was also planning to issue a Talaq Certificate in favour of
Respondent No. 1.
4. The petitioner also filed an application
before the District Officer (Revenue), Lahore seeking a restraining
order against Union Council No. 127 from recalling its earlier order. The DOR
refused to pass an order on her application on the ground that he had no
jurisdiction in the matter. W.P. No. 4481/2009 was contested. However, on a
statement made on behalf of Union Council No. 127, Model Town, Lahore that the petitioner was
not residing within its jurisdiction, and it had no intention of recalling its
order in this regard, the learned counsel for the petitioner sought permission
to withdraw the petition. The learned counsel representing the respondent
submitted that she was earlier residing at Model Town Lahore and if she had
changed her residence, her fresh address should be provided to him so that his
client (respondent) may proceed with the matter on the correct and existing
address. Mr. Hassan Kamran Bashir, brother of the petitioner, who was present
in Court informed this Court that the petitioner was residing at 6-Army Flats
(MOQ), Girja Chowk, near PSO Petrol Pump, Tufail Road, Lahore Cantt. It was,
therefore, recorded by this Court that the respondent could initiate
proceedings in the light of the aforesaid address, if so advised. The petition
was accordingly disposed of on 22.06.2009.
5. Having authentic knowledge of the residential
address of the petitioner by way of statement made before this Court by her
brother, Respondent No. 1 issued a fresh letter dated 02.07.2009. Through the
said letter the respondent informed the petitioner that he had divorced her
vide divorce deed (Talaq Nama) dated 22.11.2008. He nevertheless pronounced
Talaq upon the petitioner once again through the aforesaid letter dated
02.07.2009. The letter, which was witnessed by two persons, was sent to the
petitioner at 6-Army Flats (MOQ) Girja Chowk, near PSO Petrol Pump, Tufail Road, Lahore Cantt. This is the same
address which was provided by the brother of the petitioner in this Court.
Copies of the letter were sent to Chairman Arbitration Council, Lahore Cantonment
Board, Lahore Cantt, Hassan Kamran Bashir, real brother of the petitioner at
his address in Model Town, Lahore as well as Hassan
Danial Bashir brother of the petitioner at WAPDA Town, Lahore.
6. The aforesaid notice appears to have been
received by the petitioner as well as by Respondent No. 2. On receipt of the
said notice Respondent No. 2 summoned the petitioner vide order dated 2.07.2009
for 09.07.2009. The order sheet of Respondent No. 2 indicates that on
09.07.2009, neither the petitioner nor her representative appeared. The record
of Respondent No. 2 indicates that the petitioner was served on 02.07.2009 as
is evident from the report of Zaheer Ahmad, Process Server of the Cantonment
Board Lahore Cantt. Notices were also sent through ordinary post as well as
registered post acknowledgment due. It is not clear from the record whether or
not notices sent by post were received by the petitioner. Respondent No. 2
nevertheless, vide order dated 09.07.2009, directed that the petitioner be
summoned through registered notice and citation in the newspaper. The citation
appeared in daily "Jang" on 25.07.2009. It is evident from the record
that the petitioner had notice of pendency of the proceedings before Respondent
No. 2, as she filed an application for dismissal of the application for
issuance of certificate of Talaq on 20.08.2009. The said application is
available in the record of Respondent No. 2, which has been summoned and
examined by this Court. In view of the fact that the Chairman Arbitration Council
was not available on 20.08.2009, the matter was adjourned to 03.09.2009,
whereafter it was adjourned to 29.09.2009. It is noticed that either Respondent
No. 1 or his duly authorized Arbitrator were available and attended the
proceedings on each of the aforementioned dates. Neither the petitioner nor any
of her representatives attended the proceedings before Respondent No. 2 despite
notice.
7. On 18.09.2009, the petitioner filed the
present petition praying that proceedings before Respondent No. 2 regarding
issuance of Talaq Certificate in pursuance of application of Respondent No. 1
may be quashed/set aside as the same were illegal and void ab-initio. Vide
order dated 18.09.2009, the petition was admitted to regular hearing. Notice
was issued to the respondents for 15.10.2009. In the meantime proceedings
before Respondent No. 2 were stayed.
8. The main point agitated by the learned
counsel for the petitioner is that in terms of Section 7 of the Muslim Family
Law Ordinance, 1961 read with Rule 3(b) of the West Pakistan Rules under the
Muslim Family Laws Ordinance, 1961, Respondent No. 1 was obliged to send a
notice/intimation of divorce to Union Council No. 119 Shah Pur within whose
jurisdiction, the petitioner was residing at the time the divorce was pronounced.
It would be useful to reproduce the provisions of Section 7(1) and Rule 3(b),
ibid, which read as follows:--
Section
7(1) Any man who wishes to divorce his wife shall, as soon as may be after the
pronouncement of talaq in any form whatsoever, give the Chairman notice in
writing of his having done so, and shall supply a copy thereof to the wife.
Rule
3(b) The Union Council which shall have jurisdiction in the matter for the
purpose of clause (d) of Section 2 shall be as follows, namely;
(a).........
(b)
in the case of notice of talaq under sub-section (1)
of Section 7, it shall be the Union Council of the Union or Town where the wife
in relation to whom talaq has been pronounced was residing at the time of the
pronouncement of talaq:
Provided that if at the time of
pronouncement of talaq such wife was not residing in any part of West Pakistan, the Union Council that
shall have jurisdiction shall be--
(i) in case such wife was at any time
residing with the person pronouncing the talaq in any part of West Pakistan,
the Union Council of the Union or Town where such wife so last resided with
such person; and
(ii) in any other
case, the Union Council of the Union or Town where the person pronouncing the
talaq is permanently residing in West Pakistan;
9. The learned counsel for the petitioner
submits that a combined reading of Section 7(1) and Rule 3(b) makes it
abundantly clear that notice of divorce is required to be served on Union
Council of Union or Town where the wife in relation to whom Talaq has been
pronounced was residing at the time of pronouncement of Talaq. It is further
submitted that if it is held that Union Council Shah Pur has no jurisdiction in
the matter, the decree passed in favour of the respondent shall be rendered
null and void. When confronted with the order of this Court dated 22.06.2009,
which was not challenged any where, the learned counsel submits that
jurisdiction cannot be conferred by consent and points out that if jurisdiction
vested in Union Council Shah Pur, the same could not by consent of parties be
shifted to Union Council Cantonment.
10. The learned counsel for the Respondent No. 1,
on the other hand, points out that he exercised his right to divorce the
petitioner on 22.11.2008. He has since then been entangled in a prolonged round
of litigation on the basis of one technicality or another. He submits that it
was in order to set the matter at rest once and for all, that
the address of the place of residence of the petitioner was requested to be
incorporated in the order of this Court on 22.06.2009 and the respondent was
allowed by this Court to initiate proceedings in light of the aforesaid
address. Pursuant to order dated 22.06.2009, the Respondent No. 1 pronounced a
fresh Talaq on 02.07.2009, sent the document to the petitioner, her two
brothers as well as to Respondent No. 2. He further submits that requirements
of Section 7(1) and Rule 3(b) ibid are directory and not mandatory in nature,
in view of the fact that no penalty has been provided in the event of violation
of the same. Reliance is placed on Batool Tahir through Nominee/
Representative/Special Attorney Mustejab Zehra Vs. Province of Sindh through
Secretary Local Government Sindh and 3 others (PLD 2005 Karachi 358), Allah Dad Vs.
Mukhtar and another (1992 SCMR 1273) and Mst. Zahida Shaheen and another Vs. The State and another (1994
SCMR 2098).
11. It is further pointed out that even if for
the sake of argument and without conceding, it is admitted that the petitioner
was residing within the jurisdiction of Union Council Shah Pur at the time of
pronouncement of divorce, the same stood superceded by subsequent pronouncement
on 02.07.2009, notice of which was sent at the address provided by the
petitioner in this Court, as incorporated in order dated 22.06.2009.
12.
The learned counsel further submits that
the principle that jurisdiction cannot be conferred by consent relates only to
pecuniary jurisdiction. However in matters involving family disputes, the
jurisdiction can be conferred by the consent of the parties, especially in the
present case such jurisdiction stood conferred with consent by reason of order
dated 22.06.2009.
13. I have heard the learned counsel for the
parties at length. I have also examined the record including the original
record relating to this matter produced by Respondent No. 2. Respondent No. 1
had pronounced divorce on the petitioner on 22.11.2008. The requisite
notice/intimation were sent to Union Council No. 127
Model Town, Lahore. On receipt of a
notice, a brother of the petitioner informed the Chairman Arbitration Council
U.C. No. 127 that the petitioner was not residing at the said address. He
provided a fresh address to the said Union Council i.e. 116-Eden Canal Villas
Thokar Niaz Beg, Lahore. It is, however,
evident that the petitioner had notice of pronouncement of divorce on
27.01.2009, when her real brother namely Hassan Kamran Bashir moved an
application with the Chairman Arbitration Council U.C. No. 127 and provided him
the aforesaid information.
14. Subsequently, she initiated proceedings for
recovery of maintenance before U.C. No. 119 Shah Pur on 28.02.2009. While the
matter was still in limbo W.P. No. 4481/2009 was filed on 06.03.2009. The said
petition finally came up for hearing on 22.06.2009, when the aforesaid order
was passed, in which the petitioner's real brother namely Hassan Kamran Bashir
provided her residential address at Army Flats (MOQ) Girja Chowk near PSO
Petrol Pump Tufail Road, Lahore. It is significant to note that this Court
recorded in its order that the respondent could initiate proceedings in light
of the aforesaid address, if so advised. No objection to the said order was
taken on behalf of the petitioner. Further the aforesaid order was not
challenged anywhere and has therefore, attained finality.
15. On the basis of the aforesaid order,
Respondent No. 1 pronounced divorce again and intimated the petitioner
regarding the same through a written communication dated 02.07.2009. As
mentioned above, the said document was sent to the petitioner, her two brothers
as well as to Respondent No. 2. It is not the case of the petitioner that the
said document was not received. Her only objection to the same is that in terms
of provisions of law mentioned above i.e. Section 7(1) and Rule 3(b),
subsequent pronouncement of divorce and the service of notice at her current
address, are of no legal effect, because these were required to be filed with
Union Council Shah Pur, because she was residing within the jurisdiction of
said Union Council when the divorce was earlier pronounced.
16. It is apparent from the admitted facts of
this case that the petitioner has changed her place of residence a few times.
Therefore, the fact that the place of residence and address of the petitioner
was provided by her
real brother to this
Court, which was incorporated in the order dated 22.06.2009, is of vital
importance in this lis. On the faith of the information provided to this Court
and the observation made by this Court, Respondent No. 1 proceeded to take
steps including pronouncement of divorce afresh and sent intimation to all
concerned including the petitioner, her two brothers and Respondent No. 2.
In
my opinion, the present petition is yet another attempt on the part of the
petitioner to delay what has unfortunately become inevitable. It is indeed an
unfortunate event in family relationships, when the marriage breaks down. While
the right of divorce is deprecated at all levels, it has nevertheless
begrudgedly been granted, to be exercised where a marriage breaks down
irretrievably, as appears to be the case here. When this happens, law provides
a mechanism whereunder the parties are provided an opportunity to reconcile
their differences through intermediaries by engaging in the process of
reconciliation through arbitrators. However, where such efforts fail, despite
lapse of three months, law presumes that reconciliation is not possible and
there has been an irretrievable break down. Thereupon the parties are allowed
to undo the marriage tie and both parties can walk away, if they so wish with
dignity and grace. This, to my mind, is the real objective of the Muslim Family
Laws Ordinance, The Family Courts Act, as amended from time to time and the
Rules framed there under. Laws and the rules are not meant to prolong the agony
for one party or the other on the basis of technicalities and hairsplitting,
such is not the intention of law.
17. The provisions of Section 7(1) and Rule 3(b)
are directory in nature as no penalty is provided for their non-compliance. It
has been held that non service of notice is a mere irregularity and does not effect validity of a divorce validly pronounced and
communicated. The rationale for providing for notice of divorce to be sent to
the Union Council of the area where the wife resides is to facilitate her
participation in the proceedings, if she so desires. This purpose, under the
facts and circumstances of the present case was adequately served, by service
of notice at her current address and the Union Council of the area where she is
presently residing, which has taken cognizance of the matter. It is not her
case that she has not been served or does not have notice. Even otherwise she
is estopped from taking any other position at this stage, having provided her
current address during proceedings before this Court. She did not challenge the
order dated 22.06.2009 passed by this Court which clearly stated that the
"Respondents can initiate proceedings in light of the above address".
The said order has attained finality.
18. The divorce pronounced on 02.07.2009 was
validly pronounced if one were to look at the case from a purely technical
point of view. It was pronounced thrice in the presence of witnesses. It was
duly communicated to the
petitioner at the
address provided by her
where she was admittedly residing at the time the said divorce was pronounced.
Intimation was sent to Respondent No. 2, who has since initiated proceedings
and according to the information provided to this Court, the requisite period
of 90 days has expired on 29.09.2009. The petitioner had ample notice and
opportunity to participate in arbitration proceedings, which she chose not to
attend. There is neither lawful reason nor justification at this stage to quash
or set aside the proceedings before Respondent No. 2 or to restrain the said
respondent from issuing the requisite certificate on expiry of 90 days.
19. In view of what has been stated above, I do
not find any force in this petition. It is accordingly dismissed.
(M.S.A.) Petition
dismissed.