PLJ 2007 Lahore 1012
Present: Syed Sakhi Hussain Bukhari, J.
Rana ZULIFQAR--Petitioner
versus
MARIYAM RAFIQUE--Respondent
W.P. No. 9751 of 2005, heard on 7.2.2007.
(i) Muslim Family
Laws Ordinance, 1961 (VIII of 1961)--
----S. 7--Constitution of Pakistan, 1973--Art.
199--Constitutional Petition--Talaq was pronounced--Revoked divorce--Notice of
Talaq--Expiration of 90 days--Effective--Validity--According to S. 7 of Muslim
Family Laws Ordinance, any man who wishes to divorce his wife shall as soon as
may be after the pronouncement of talaq in any form give the Chairman notice in
writing of his having done so--Held: Talaq unless revoked shall not be
effective untill expiration of 90 days from the day on which notice is
delivered to Chairman.
[P. 1014] A
(ii) Talaq--
----Expiry of 90 days--Validity--Petitioner could revoke
Talaq before expiry of 90 days from the date on which he delivered notice to
Chairman. [P. 1014] B
(iii) Talaq--
----Withdrawn Talaq--Legality--Chairman declared Talaq
effective despite fact that according to his own order, husband had
withdrawn/revoked notice Talaq--As such impugned order was illegal and liable
to be set aside. [P. 1015] C
Mr. Abdul Salam Awan, Advocate for Petitioner.
Mr. Majid Hussain, Advocate for Respondent.
Date of hearing: 7.2.2007.
Judgment
In this Constitutional petition, the petitioner has prayed
for setting aside order dated 25.5.2005 passed by Respondent No. 2 (Syed Moeen
Arif Chairman, Arbitration Council, U/C No. 108 Gulshan-e-Iqbal, Allama Iqbal
Town, Lahore).
2. Relevant facts
for the disposal of this writ petition are that petitioner was married to Mst.
Marriam Rafiq (Respondent No. 1). He pronounced `Talaq' and intimation was
given to Respondent No. 2. However later on petitioner had withdrawn/revoked
divorce (Talaq) and accordingly made statement before Respondent No. 2 on 13.12.2005.
The matter was resolved and parties started living in cordial manner. The
parents of plaintiff were not happy over the reunion of the parties and they
pressurized Respondent No. 2 to issue certificate regarding the effectiveness
of notice of `Talaq'. Respondent No. 2 vide order dated 25.5.2005 declared that
`Talaq' has become effective. Hence this writ petition.
3. I have heard
the arguments and perused the record.
4. As mentioned
above petitioner was married to Mst. Marriam Rafiq (Respondent No. 1) and on
25.11.2003 he divorced her. He also sent notice of `Talaq' to Respondent No. 2
(Chairman, Arbitration Council, U/C No. 108 Gulshan-e-Iqbal, Allama Iqbal Town
Lahore), who declared notice `Talaq' effective vide order dated 25.5.2005. The
case of petitioner is that he had withdrawn/revoked notice of `Talaq' on
13.12.2003, therefore, according to Section 7 of Muslim Family Laws Ordinance,
1961 Respondent No. 2 could not declare the same effective, hence impugned
order is illegal, void and liable to be set aside. The impugned order shows
that Respondent No. 2 received notice `Talaq' on 25.11.2003 and parties were
summoned. The said order also shows that parties were summoned for 18.12.2003
but on 13.12.2003 petitioner submitted application before him (Respondent No.
2) that he had issued notice `Talaq' due to misunderstanding and withdrew the
same. However despite said application, Respondent No. 2 declared that divorce
has become effective. According to Section 7 of Muslim Family Laws Ordinance,
1961 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 copy thereof to the wife. A
`Talaq' unless revoked earlier shall not be effective until the expiration of
90 days from the day on which notice is delivered to the Chairman. Section 7
reads as under:--
"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.
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 Arbitration Council shall take all
steps necessary to bring about such reconciliation.
5. If the wife be
pregnant at the time 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."
So it is clear that petitioner could revoke `Talaq'
before expiry of 90 days from the date on which he delivered notice to the
Chairman. In order dated 25.5.2005 Respondent No. 2 observed that:--
However as mentioned earlier, the Chairman declared the
`Talaq' effective despite the fact that according to his own order, petitioner
had withdrawn/revoked notice `Talaq' on 13.12.2003. As such impugned order is
illegal and liable to be set aside.
5. For what has
been discussed above, this writ petition is accepted, order dated 25.5.2003
passed by Respondent No. 2 (Chairman, Arbitration Council, U/C No. 108
Gulshan-e-Iqbal, Allama Iqbal Town, Lahore) according to which `Talaq' was
declared effective, is declared without lawful authority and of no legal
effect. No order as to costs.
(R.A.) Petition
accepted.
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