Authenticity of Divorce Deed in Family Law System

PLJ 2013 Lahore 548

Present: Atir Mahmood, J.

ALMAS MUBASHAR--Petitioner

versus

MUBASHAR HANIF--Respondent

W.P. No. 15303 of 2010, heard on 16.4.2013.

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Arts. 17 & 19--Notice talaq--Authenticity of divorce deed--Notice in writing was received by chairman union council--Muslim Family Law has overriding effect over general law in family matters--Validity--Executant had not denied execution of divorce deed/notice of talaq, therefore, provisions of Arts. 79 of Order were not attracted, particularly when petitioner admitted receipt of notice of talaq--Muslim Family Law Ordinance will have over riding effect over all other laws with regard to registration of muslim marriages--OSO does not exclude application of Order 1984 in family matters.            [Pp. 551 & 552] A & B

Effectiveness of Talaq--

----Issuance of certificate of talaq is a mere technicality which does not find mention in provisions of Muslim Family Laws Ordinance, 1961 and talaq becomes effective automatically after 90 days from receipt of talaq by Administration of Union Council.        [P. 552] C

PLD 1993 SC 901, ref.

Muslim Family Laws Ordinance, 1961--

----S. 7(2)--Constitution of Pakistan, 1973, Art. 199--Notice of talaq--Effectiveness of issuance of certificate of talaq--Challenge to--Validity--Constitutional restraints Courts cannot give any verdict on conflicting claims challenging--In a case where with consent of the parties divorce is effected and confirmed in writing under their undisputed signatures Section 7(2) is to be enforced because in such cases the parties do not willfully commit breach and bona fide believe that they had been divorced with consent of each other and sending of notice to Chairman UC is merely formality--Notice can be sent at any time thereafter to comply with provisions of S. 7 of Ordinance--Where such view had been taken but its validity had been challenged the Court would be justified to refuse to issue writ and exercise its jurisdiction.      [P. 552] D

Divorce--

----Injunction of Islam--Undoubtedly as per injunction of Islam right of divorce was conferred upon man who can give divorce to her wife at any time and no encumbrance is put upon the man to give divorce to her wife though the same is one of things most disliked by God.    [P. 552] E

Ch. Muhammad Arshad Bajwa, Advocate for Petitioner.

Mr. Muhammad Muzaffar Samore, Advocate for Respondent No. 1.

Date of hearing: 16.4.2013.

Judgment

Through the instant Writ Petition, the petitioner has challenged the certificate of talaq dated 12.05.2010 issued by Respondent No. 2 after culmination of reconciliation proceedings.

2.  Brief facts of the case are that the petitioner Contracted marriage with Respondent No. 1 on 15.12.2008 in accordance with Muslim rites, however, rukhsati did not take place. Respondent No. 1 is a permanent resident of Canada. The petitioner applied for the Canadian Immigration Visa which was refused by the concerned authorities. On query, it transpired that sponsorship was withdrawn by Respondent No. 1. The petitioner tried to get Canadian Visa and in this regard, she remained in contact with Respondent No. 1 but he did not clarify the situation. In the meanwhile, the petitioner received a notice of talaq/divorce deed which was written on stamp paper. The said notice of talaq was sent to Nazim/Administrator Union Council No. 120, Ali Razabad, Lahore who served notice upon the petitioner for reconciliation. The petitioner appeared before Respondent No. 2 and recorded her statement that the petitioner never demanded divorce from Respondent No. 1 and wanted to live with him. Respondent No. 2, during reconciliation proceedings, inquired from Respondent No. 1 regarding the authenticity of the notice of talaq which was replied in affirmative through letter sent by Respondent No. 1 duly attested by Notary Public at Canada. Respondent No. 2 concluded the reconciliation proceedings by issuing certificate of effectiveness of divorce deed dated 12.05.2010 which is under challenge in this writ petition.

3.  Learned counsel for the petitioner has contended that the notice of talaq was not issued in accordance with the provisions of Section 7 of Muslim Family Law Ordinance as the stamp paper of divorce deed was purchased from Lahore and the legal formalities were not complied with to make it a valid notice of talaq as Respondent No. 1 is a permanent resident of Canada. It has been stated that the arbitration proceedings were not conducted as the Respondent No. 1 did not appoint any arbitrator on his behalf and all the proceedings conducted by Respondent No. 2 are a nullity in the eye of law. He has relied upon the dictums laid down in case titled "Romana Zahid Vs. Chairman Arbitration Council/Nazim Union Council and another (PLD 2010 Lahore 681)".

4.  On the other hand, learned counsel for Respondent No. 1 has strongly contested the instant petition. He submits that the right of talaq has been conferred upon the man by the injunctions of Islam which cannot be curtailed by any law of the land which are procedural in nature. He further contends that the petitioner never denied the receipt of notice of talaq either from Respondent No. 1 or from arbitration council/union council concerned. It has further been stated that in fact the petitioner wanted to immigrate to Canada alongwith her mother and for the very reason, Respondent No. 1 has divorced her.

5.  Arguments advanced by learned counsel for the parties have been heard and record also perused.

6.  The record shows that the receipt of divorce deed dated 16.10.2009 duly signed by Respondent No. 1 is not denied by the petitioner. The petitioner appeared before Nazim/Administrator Union Council No. 120, Ali Razabad, Lahore and filed a written statement before him. Relevant contents of the said statement are reproduced hereunder:

"..... I want to live with Mubasher Hanif want to spend my life with him. He has sent me divorce notice for no reason which is unjustified and cruel act. ..As he is a Canadian citizen, Canadian Embassy and Canadian Government knows (as he applied for my Canadian immigration and cancelled twice) that. I am his wife, so please ask him to send divorce according to Canadian Law through Canadian Embassy with all the compensation and my rights along with my dower (Rs. 1 lac and 15 tola Gold Jewelry) and my nan-nafqa (maintenance allowance) from my Nikah (Dec 08) till now (March 2010). No divorce certificate should be issued until provision of Divorce Notice through Canadian Embassy along with all compensations and rights (according to Canadian Law), and my dower and Nan-Nafqa."

Bare perusal of above statement reveals that the petitioner herself admits the receipt of divorce notice, therefore, she cannot say that no notice of talaq was received by her.

7.  The petitioner through her brother namely Shahid Mirza participated in reconciliation proceedings whereas no one appeared on behalf of Respondent No. 1. Respondent No. 2 contacted Respondent No. 1 telephonically and asked him to appoint his arbitrator through the embassy but even then, nobody was appointed on behalf of Respondent No. 1, however, a registered letter dated 15.03.2010, duly attested by Notary Public at Canada, was received by Respondent No. 2 from Respondent No. 1 acknowledging the divorce deed which letter has been placed on record along with written reply of Respondent No. 1. Respondent No. 2 concluded the proceedings vide order-dated 12.05.2010 and on the same day, issued a certificate of effectiveness of talaq.

8.  In the case law relied upon by learned counsel for the petitioner reported as PLD 2010 Lahore681, learned Judge has held that "..the notice in writing received by the Chairman Union Council from Dubai UAE had to comply with the requirements of Article 79 of the Qanun-e-ShahadatOrder, 1984. This is also important because the Ordinance does not exclude the application of Qanun-e-Shahadat Order, 1984 to the notice under Section 7(1) of the Ordinance. In the present case no such notice was ever received by the Chairman Union Council, which was duly verified by the Pakistan Embassy." In my humble opinion, the provisions of Article 79 of Qanun-e-ShahadatOrder, 1984 cannot be read in isolation. As a matter of fact, Article 17 is to be taken into consideration while relying upon Article 79 ibid. Respondent No. 1/executant has not denied the execution of the divorce deed/notice of talaq; therefore, the provisions of Article 79 of Qanun-e-Shahadat Order are not attracted, particularly when the petitioner herself admits the receipt of divorce deed/notice of talaq. There is another important aspect of the case that Respondent No. 2/Nazim of Union Council got himself satisfied by making a telephone call to Respondent No. 1 with-regard to authenticity of the divorce deed/notice of talaq and then by receiving a letter  of  confirmation dated 15.03.2010 duly attested by a Notary Public in and for the province of Alberta,Canada. Respondent No. 2 has annexed all the record of the reconciliation proceedings while filing his reply to this writ petition which shows that the petitioner has received notice of talaq by Respondent No. 1. With regard to the view taken by learned Judge in the case supra regarding non-exclusion of provisions of Qanun-e-Shahadat Order, the provision of Section 3(1) of Muslim Family Law Ordinance, 1961 provides that:

"Ordinance to override other laws, etc. (1) The provisions of this Ordinance shall have effect notwithstanding any law, custom or usage, and the registration of Muslim marriages shall take place only in accordance with these provisions."

Bare reading of the above provision shows that the Muslim Family Law Ordinance will have overriding effect over all other laws with regard to the registration of Muslim marriages. Therefore, I am not convinced that this Ordinance does not exclude the application of Qanun-e-Shahadat Order, 1984 in family matters.

9.  The issuance of certificate of talaq is a mere technicality which does not find mention in the provisions of Muslim Family Laws Ordinance, 1961 and talaq becomes effective automatically after 90 days from receipt of notice of talaq by Nazim/Administrator of the Union Council concerned. In this regard, I am guided by the dictums laid down by the Hon'ble Supreme Court of Pakistan in case titled "Mst. Kaneez Fatima Vs. Wali Muhammad and another (PLD 1993 SC 901)" wherein it has been held that "The provisions of Section 7 of the Ordinance have remained Controversial from the very beginning and there are conflicting views in general about it. In view of the Constitutional restraints the Courts cannot give any verdict on the conflicting claims challenging or justifying the provisions of Section 7 of the Ordinance. However, keeping in view the facts of each case the applicability and interpretation of Section 7 has to be construed in that light. In a case where with the consent of both the parties divorce is effected and confirmed in writing under their undisputed signatures Section 7(2) is to be enforced because in such cases the parties do not willfully commit breach and bona fide believe that they have been divorced with the consent of each other and sending of notice to the Chairman, Union Council, is merely a formality. The notice can be sent at any time thereafter to comply with the provisions of Section 7. Where such view has been taken but its validity has been challenged the Court would be justified to refuse to issue writ and exercise its jurisdiction".

10.  Undoubtedly, as per injunctions of Islam, the right of divorce has been conferred upon man who can give divorce to her wife at any time and no encumbrance is put upon the man to give divorce to her wife  though  the  same  is one of the things most disliked by God. In this case, admittedly, the divorce has been given by Respondent No. 1 to the petitioner. Admittedly, the petitioner has received the divorce deed/notice. During the reconciliation proceedings, the Respondent No. 2 contacted Respondent No. 1 who re-affirmed the divorce deed. As a result, Respondent No. 2 declared that talaq had happened and accordingly issued certificate in this regard. When Respondent No. 1 has not only sent talaq/divorce deed to the petitioner but also reaffirmed the same through his written reply/letter dated 15.3.2010 and the petitioner has admittedly received the same, there was no reason for not issuing the certificate of effectiveness of talaq by Respondent No. 2 as it appears that Respondent No. 1 no longer wishes to keep the petitioner in his marriage and none can be forced for the same. In the circumstances, I find no reason to disagree with the findings of Respondent No. 2. No interference is called for.

11.  In view of what has been discussed above, this writ petition has no force, hence dismissed.

(R.A.)  Petition dismissed

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