PLJ 2012 Karachi 165 (DB)
Present: Mushir
Alam, C.J. and Salman Hamid, J
RAJA
QURESHI--Petitioner
versus
CHAIRMAN,
ARBITRATION COUNCIL, CANTONMENT BOARD, KARACHI
and 2 others--Respondents
C.P.
No.
D-1222 of 2011, decided on 25.11.2011.
Muslim Family
Laws Ordinance, 1961 (VII of 1961)--
----5.
7(3)--Destiny of divorce or allusion of its revocation--Pre-conditions--Talaq
can be revoked which can either be express or otherwise--Other condition which
is required to be made is that such express or otherwise revocation of Talaq be
within a period of 90 days to be reckoned from the date of receipt of notice of
Talaq by the Chairman Arbitration Council. [P.
169] A
Muslim Family
Laws Ordinance, 1961 (VII of 1961)--
----S.
7(3)--Constitution of Pakistan,
1973, Art. 199--Constitutional petition--Talaq--Revocation--Petitioner divorced
his wife on 28.12.2010 and Arbitration Council issued notice under S. 7 of
Muslim Family Laws Ordinance, 1961, for reconciliation/confirmation of
divorce--Plea raised by petitioner was that he had revoked divorce, therefore,
Arbitration Council could not proceed in the matter--Validity--After letter
dated 24-3-2011, was sent by petitioner, Arbitration Council had no
jurisdiction or authority to proceed further into the matter either in
confirming divorce dated 28-12-2010, or embark upon in reconciliation of
marriage contracted between the parties--High Court restricted Arbitration
Council to act further in the matter after letter dated 24.3.2011 was sent by
petitioner--Petition was allowed accordingly. [P.
172] B
PLD
2005 Kar.
358; 2004 CLC 652; 2007 CLC 1047; 2001 CLC 330; 1990 ALD 702;
PLD 1989 Lah. 490; PLD 1993 SC 901; 1992 SCMR 1273 and
1997 PCr.LJ 1655 ref.
Mr. Agha Zafar,
Advocate for Petitioner.
Mrs.
Rehmatunnisa, Advocate for Respondent No. 1.
Nemo
for Respondent No. 2.
Kh. Shamsul
Islam and Zohaib Sarki, Advocates for Respondent No. 3.
Mr. Abdul Fateh
Malik, Advocate-General, Sindh on Court notice.
Dates of
hearing: 17, 19.5.2011 & 21.11.2011.
Judgment
Salman Hamid,
J.--It is the case of the petitioner that by means of divorce deed dated
28-12-2010, he set free Respondent No. 3 from the knot and also intimated the
Respondent No. 1 of such let off, which earlier in time was tied between him
(petitioner) and the Respondent No. 3 in June, 2000 in the serenity of
Paraweat, Bangkok, Thailand. The Respondent No. 1 on its turn, upon receipt of
above divorce deed dated 28-12-2010 and the notice under Section 7 of the
Muslim Family Laws Ordinance, 1961 (1961 Ordinance) issued a notice to the
petitioner and the Respondent No. 3 to cause their appearance before him on
15-2-2011 at 1230 hours for reconciliation/confirmation of above event. In
response, the petitioner addressed a letter dated 24-3-2011 to convey that the notice of divorce
dated 28-12-2010
has been withdrawn which was within the stipulation of the expiration period of
90 days, envisaged by Section 7 of 1961 Ordinance. Proceedings for
reconciliation/confirmation of divorce, were thus
prayed to be terminated.
2. It was asserted by the petitioner that
despite letter dated 24.3.2011 for revocation of divorce dated 28-12-2010, the Respondent No. 2 purportedly sent a communication
dated 15-4-2011
to the petitioner, seeking confirmation, whether he (petitioner) had revoked
divorce, pronounced by him on Respondent No. 3? This petition followed
thereafter with following prayers:--
"(i) Declare that
the proceedings between the petitioner and the Respondent No. 3 before the
Respondent No. 1 having been terminated upon the withdrawal of the notice of
divorce prior to the expiry of 90 days and the order of termination of
proceedings is within the prescription of law.
(ii) Declare that the Respondent No. 1 and
Respondent No. 2 cannot take any further steps after having terminated the
proceedings upon receipt of notice from the petitioner seeking withdrawal of
the divorce and thus issuance of notice by the Respondent No. 2 asking for
interpretation and assistance from the petitioner is unwarranted by law and
circumstances.
(iii) Restrain the Respondents Nos. 1 and 2
from proceeding between the petitioner and the Respondent No. 3 which have
already been terminated and further not to issue a certificate of confirmation
of divorce or take any further steps whatsoever in accordance with the mandate
of law pending disposal of the petition.
(iv) Call for Record and Proceedings from
the office of the Respondent No. 1 and upon examining the same be pleased to
pass any appropriate order as deem fit and proper in the circumstances.
(v) Grant any other relief/reliefs as deem
fit and proper in the circumstances of the case."
3. Skirmishing, learned counsel for Respondent
No. 3 opposed the implore. It was argued that the
question of revocation of divorce dated 28-12-2010 does not arise inasmuch as that it
has become final. It was urged that even otherwise the petitioner did not, by
means of letter dated 24-3-2011
asked for revocation of divorce - it was a letter simply for revocation of notice
of divorce; then avowed that the petition is not maintainable under the 1961
Ordinance as there is no provision for withdrawal of Talaq. It was also
stressed that the petitioner's approach to this Court was mala fide and only
aimed at to drag on the miseries of Respondent No. 3. It was also brought-up
that the petition is hit by Article 2-A of Constitution of Islamic Republic of
Pakistan, 1973.
4. Tracing the milieu of the divorce dated 28-12-2010, it was
strenuously mentioned that pungent litigation ensued between the petitioner and
the Respondent No. 3. In due course a compromise decree dated 13-12-2009 was passed in
the suit, followed by execution proceedings and then contempt action by the
Respondent No. 3 against the petitioner for despoliation of Court's order(s).
It was also averred that after divorce on 28-12-2010, the petitioner also caused a
public notice in respect thereof on 23-1-2011 and that in various affidavits, filed by the
petitioner in the suit and the execution application, the divorce of 28-12-2010, announced by
him against Respondent No. 3, fortified. It was argued that since the public
notice of divorce and the affidavits sworn by the petitioner, reflecting the
fact of divorce had not been revoked, the divorce after expiration of 90 days'
period became final.
5. Point of view of learned Advocate General,
Sindh was also heard. More or less the learned AG supported the case of the
petitioner. Arguments of the erudite counsel of the petitioner were reinforced
by urging that the Respondent No. 2 or for that matter, the Respondent No. 1,
looking at the scheme of Section 7 of the 1961 Ordinance and after receiving
letter dated 24-3-2011 before expiration of the threshold of 90 days time from
the side of the petitioner for termination of confirmation of divorce dated
28-12-2009, such respondents cannot further into the matter and ought to have
pulled out themselves.
6. Heard.
7. At the very beginning we may observe that via
this handing down we only intend to decide if the Respondent No. 1 and/or
Respondent No. 2 under the rations of Section 7 of 1961 Ordinance were
empowered or competent to advance further into the substance, once notice for
withdrawal of divorce, announced by mate, (petitioner in the present dealings)
was revoked/recalled within a period of 90 days from the date of notice, as
mentioned therein? By no elongate we are to decide the destiny of divorce dated
28-12-2010 or
allusion of its revocation by the petitioner. We are also not going into the
direction and/or it is not prayed by the petitioner to speak out the provision
of Section 7 of 1961 Ordinance or any other provision thereof to be un-Islamic
or in breach of the principles of the Holy Quran or the Sunnah.
8. Section 7 of 1961 Ordinance provides as
under:--
"(7) `Talaq'. (J) 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.
(2) Whoever contravenes the provisions of
sub-section (1) shall be punishable with simple imprisonment for a term which
may extend to one year or with fine which may extend to five thousand rupees or
with both.
(3) Save as provided in sub-section (5), a
talaq unless revoked earlier, expressly or otherwise, shall not be effective
until the expiration of ninety days from the day on which notice under
sub-section (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of
notice under sub-section (1) the Chairman shall constitute an Arbitration
Council for the purpose of bringing about a reconciliation
between the parties, and the Arbitration Council shall take all steps necessary
to bring about such reconciliation.
(5) If the wife be pregnant at the time of
talaq is pronounced, talaq shall not be effective until the period mentioned in
sub-section (3) or the pregnancy whichever be later, ends.
(6) Nothing shall debar a wife whose
marriage has been terminated by talaq effective under this section from
remarrying the same husband, without an intervening marriage with a third
person, unless such termination is for the third time so effective."
9. Bare checking of sub-section (3) of Section 7
of 1961 Ordinance would show that a Talaq unless revoked earlier, expressly or
otherwise (emphasis abounded), shall not be effective until the expiration of
90 days from the day on which notice under sub-section (1) was delivered to the
Chairman. It, therefore, becomes lucid, at least to our minds, that a Talaq can
be revoked past which can either be express or
otherwise. The other condition which is required to be made is that such
express or otherwise revocation of Talaq be within a period of 90 days to be
reckoned from the date of receipt of notice of Talaq by the Chairman. Looking at
these provisions in the manner discussed above, the letter dated 24-3-2011,
sent by the petitioner to the Respondent No. 1 seemingly fulfils the two
requirements i.e. it was well before expiration of 90 days period--it gives
and/or spells out express revocation of Talaq dated 28-12-2010. Therefore, in
our opinion the criteria having been met by the petitioner, the Respondent No.
3 and/or the Respondent No. 2 cannot proceed further into the matter either to
confirm and/or enter into reconciliation of marriage between the petitioner and
Respondent No. 3.
10. Contention of Mr. Islam, learned counsel for
the Respondent No. 3 that the public notice and the affidavits of the
petitioner augmenting the divorce dated 28-12-2010 having not been withdrawn
and even the letter dated 24-3-2011 no where, in clear terms spoken about the
revocation of the divorce under-point, it (divorce) after determination of 90
days became final for more than a solitary reason does not hold ground. First
of all public notice and the affidavit seemingly are of the date(s) prior in
time to the letter dated 24-3-2011.
Second of all even if such were after in time to letter under point, the same
were of no consequence as the letter was sent to the Respondent No. 1 in terms
of Section 7 of 1961 Ordinance and had to be dealt with under such Section
and/or under the provisions of 1961 Ordinance alone. Third of all as we have
already mentioned above that we would not embark on the path to decide the fate
of the divorce itself inasmuch as it would be within the domain of the Family
Court where the petitioner and/or Respondent No. 3 would agitate their claim
vis-a-vis on the part of the petitioner: revocation of divorce and on the part
of Respondent No. 3: confirmation of divorce.
11. Above unfolding has
brought us to the analysis of the various case-law relied upon by the
petitioner, the Respondent No. 3 and the learned A.G. We would take up first
the precedents cited by the learned counsel for the petitioner and the learned
A.G. Sindh inasmuch as that these two learned representatives of their clients
were at par with each other and also cited and relied upon, somewhat, same
precedents, first of which was the case of Batool Tahir v. Province of Sindh
(PLD 2005 Karachi 358), a decision of a Division Bench of this Court wherein
essentially it was held in Paragraph 13 that "the Respondent No. 2
[councillor] under the provisions of Section 7 of 1961 Ordinance could only
record the contention of both the parties before him and then merely state whether
he could bring about reconciliation between the parties or whether the
reconciliation efforts failed. He has, therefore, no authority to declare
whether divorce has become effective or otherwise. The validity or otherwise of
a Talaq can only be examined by a Court of competent jurisdiction under the
Family law". The next case was that of Alia Parveen v. Executive District
Officer (Revenue) Sheikhupura and 3 others (2004 CLC 652) wherein a single
Judge of the Lahore High Court in Paragraph 11 of the citation observed that,
"the dispute regarding determination or legality/validity of the marriage
or genuineness/ingeniousness of Nikahnama cannot be questioned before the
Arbitration Council. It shall have the jurisdiction only to those matters
mentioned in the above-referred sections. For proceedings under these Sections
the legislature has framed Rules under the Muslim Family Laws Ordinance,
1961". The learned single Judge of the Lahore High Court made above
observations when he came to the conclusion that the Assistant Director, Local
Government, Shekhupura had no authority to inquire into the validity of
Nikahnama of the petitioner with deceased Malik Riaz and further that even if
the permission at the time of marriage by deceased Malik Riaz with the
petitioner was not obtained, the arbitration council had no authority to
declare such marriage illegal or invalidate it. The third precedent that was
cited was of Rana Zulfiqar v. Mariam Rafiq (2007 CLC 1047), wherein it was
observed by the learned single Judge of the Lahore High Court that,
"Husband could revoke divorce before expiry of 90 days from the date when
he delivered notice to the Chairman" and that, "where the Chairman
declares the divorce effective despite the fact that according to his own order
husband has withdrawn/revoked notice within the period of 90 days, order
declaring divorce effective by the Chairman was illegal and liable to be set
aside". The learned single Judge of Lahore High Court made such
observations in the case in hand when it was found that the arbitration council
declared the reunion of the husband and wife therein after divorce but before
expiration of 90 days period, as mentioned in 1961 Ordinance and that the order
which was passed by the arbitration council, declaring the marriage null and
void was set aside. Then the case of Mst. Sadia Khan v. Muhammad Asim Khan and
another (2001 CLC 330) was cited, wherein the learned single judge of the
Lahore High Court in penultimate paragraph of the judgment observed that,
"therefore, the question as to whether the Talaq was revocable or
irrevocable or that the same was with mutual consent and accepted by the
parties as claimed by the petitioner will be determined by the Court where the
suit is pending for adjudication. Petitioner is well within his right to rebut
the same by filing written statement in the said suit or to file independent
suit. Even otherwise the nature of controversy between the
parties to the petition by itself for factual controversies which cannot be
resolved in Constitutional jurisdiction of the High Court." This
observation was made by the learned single judge of the Lahore High Court in
the cited case upon coming to the conclusion that once the notice, sent by the
husband under Section 7 of 1961 Ordinance to the Chairman, arbitration council
and its subsequent withdrawal within a period of 90 days, the arbitration
council ought not to have proceeded further into the matter, regarding
confirmation or otherwise of the divorce. In the last paragraph of the judgment
under discussion, it was observed that, "in view of what has been
discussed above, I am not inclined to give my opinion qua the contention of the
learned counsel for the parties so that the cases of the either party shall not
be prejudiced." In the case of Ayaz Aslam v. Chairman Arbitration Council
and others 1990 ALD 702 a Single Judge of the Lahore High Court held that Talaq
becomes effective on the expiry of 90 days from the date on which notice under
sub-section (1) of Section 7 of 1961 Ordinance is delivered to the Chairman if
the same was not revoked earlier, expressly or otherwise and that the Talaq was
held to be revoked by the husband through telegram, which was within a period
of 90 days of notice of Talaq and the action. Under the circumstance action of
the Chairman was declared to be absolutely without jurisdiction in proceeding
further into the matter.
12. In the cited case objections had been raised
by the respondents of the nature which were raised in the present petition as
well i.e. that the telegram and/or notice did not specifically mentioned
revocation of Talaq and that since the parties were Hanafi by faith and that
the marriage has been dissolved by pronouncing Talaq by the husband therein
earlier in time, the same stood dissolved and that the wife in that case ceased
to be as such and that the provisions of Section 7 of 1961 Ordinance, as also
argued by the learned counsel for the Respondent No. 3 herein, are contrary to
the injunctions of Islam and the Holy Quran, which was dealt with by the Court
by observing that since the validity/legality of the provisions of Section 7 of
1961 Ordinance were not in question, the same were left untouched. The case of
Mst. Kaneez Fatima v. Wali Muhammad and others (PLD 1989 Lahore 490)
subsequently upheld by the Hon'ble Supreme Court of Pakistan reported as PLD
1993 SC 9011 was relied upon and it was mentioned that in such case a contrary
view was taken i.e. that provisions of Section 7 and/or the provision of the
1961 Ordinance are not in conflict with the Holy Quran and the Sunnah. The last
case which was cited was Mst. Kaneez Fatima v. Wali Muhammad and another (PLD
1993 SC 901) to show that the provisions of Section 7 and/or other provisions
of 1961 Ordinance are not contrary to the Holy Quran and Sunnah. We having
already mentioned above that we would not go into the validity and/or legality
of such provisions which are not before us, we would for such
purpose would not look it this citation.
13. However, the other citations, relied upon by
the learned counsel for the petitioner and also by the learned A.G. have been
looked into and discussed, evident from the above. Our view and the view taken
is such citation is in harmony. We therefore hold that after letter dated
24-3-2011, sent by the petitioner to Respondent No. 1, the Respondent No. 1 or
the Respondent No. 2 had no jurisdiction or authority to proceed further into
the matter either in confirming the divorce dated 28-12-2010 or embark upon in
reconciliation of the marriage, contracted between the petitioner and the
Respondent No. 3 on 9-6-2009 in Thailand. We may again emphasise and observe
specifically that this decision is only confined and restricted to the acting
of Respondents Nos. 1 and 2 further in to the matter after letter dated
24-3-2011, sent by the petitioner to such respondents and would not in any way
affect the rights of the petitioner and/or the Respondent No. 3 vis-a-vis
revocation of divorce dated 28-12-2010 on one hand and confirmation thereof on
the other.
14. Learned counsel for Respondent No. 3 also
relied upon PLD 1993 SC 901 supra and stated that the decision therein was per
incurium. Since we have not once but more than that have observed that we are not
here to decide
the validity or otherwise of the provisions of Ordinance, 2001 would not
look into the same. The other cases those were relied upon by Mr. Islam were
Allah Dad v. Mukhtar and another (1992 SCMR 1273) to contend that divorce would
become effective even in the absence of notice to the Chairman under Section 7
of 1961 Ordinance and that ineffectiveness of divorce in absence of notice to
the Chairman as envisaged by Section 7 of 1961 Ordinance was against the
injunctions of Islam. For what has been observed above regarding the validity
or otherwise of the provisions of 1961 Ordinance, we need not require to look in this citation. The last case that was cited by
learned counsel for Respondent No. 3 was Muhammad Siddique and another v. The
State (1997 PCr.LJ 1655 Federal
Shariat Court) which says that in case of clash
between an existing law and the injunctions of Islam with regard to the
validity of marriage, injunctions of Islam shall prevail for the purposes of
1961 Ordinance. Yet again we may observe and ignore the citation inasmuch as we
are not here by way of this decision to decide whether the divorce dated
28-12-2010 has become final or otherwise, keeping in view the provisions of
Section 7 of 1961 Ordinance at one end and on the other the injunctions of
Islam.
15. For what has been observed hereinabove, this
petition is allowed to the extent of prayers (i), (ii) and (iii) and is
disposed of accordingly.
(R.A.) Order
accordingly
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