Effectiveness of Talaq

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.