Sunday, 17 February 2013

When talaq proceedings start?


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----Withdrawn Talaq--Legality--Chairman declared Talaq effective despite fact that according to his own order, husband had withdrawn/revoked notice Talaq--As such impugned order was illegal and liable to be set aside.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 However later on petitioner had withdrawn/revoked divorce (Talaq) and accordingly made statement before Respondent No. 2 on 13.12.2005.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.

Talaq can be revoked within 90 days


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

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.

Only husband can pronounce Talaq


PLJ 2012 Lahore 183
[Multan Bench Multan]
Present: Kh. Imtiaz Ahmad, J.
Mst. RUQIA BANO--Petitioner
versus
JUDGE FAMILY COURT KAROR PAKKA, LODHRAN and 2 others--Respondents
W.P. No. 5108 of 2004, decided on 26.10.2011.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Concurrent findings cannot be interfered with in writ petition--Pronouncement of talaq was necessary--Dismissal suit for jactitation of marriage and decreed the suit for restitution of conjugal rights--Consolidated judgment--Question of--Whether previous husband had ever divorced plaintiff and if it was proved that he had not divorced plaintiff then even if plaintiff had contracted marriage with defendant even then she could not be said to be legal wedded wife--If talaq nama had been obtained then why the talaq nama had not been produced in evidence--In fact no talaq nama was ever executed--Statement of petitioner does in no way establish that her husband had divorced her--If it is left to discretion of the wife that whenever she would say that she had been divorced by her husband then talaq would be presumed then it would lead to indefinite litigation and even otherwise it is against principle of law, since talaq is to be pronounced by husband and mere statement of wife is not enough to prove that she had been divorced--Courts below had infact misread evidence and had dealt with the case from different angle that since the plaintiff had alleged that she had been divorced, so divorce stands established and thus committed material irregularity while declaring plaintiff to be legally wedded wife of defendant--Normally Courts in a writ petition do not interfere with concurrent findings but when there was clear cut misreading of evidence and material irregularity in impugned judgments High Court has jurisdiction to interfere even if findings are concurrent--Suit was filed by plaintiff for jactitation of marriage stands decreed while suit for restitution of conjugal rights stands dismissed.          [Pp. 189 & 190] A, B, C, D & E
Mr. Muhammad Ramzan Khalid Joya, Advocate for Petitioner.
Malik Muhammad Latif Khokhar, Advocate for Respondents.
Date of hearing: 25.10.2011.
Judgment
Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, consolidated judgment and decree dated 10.12.2003 passed by the learned Judge Family Court, Kahroor Pakka whereby the suit filed by the present petitioner for jactitation of marriage was dismissed while the suit filed by the Respondent No. 3 herein namely Mureed Hussain for restitution of conjugal rights was decreed and consolidated judgment of learned Additional District Judge, Kahroor Pakka dated 14.5.2004 whereby both the appeals filed by the present petitioner were dismissed, have been challenged.
2.  The relevant facts for the disposal of this writ petition are that Mst. Ruqia Bano the present petitioner filed a suit on 19.6.2003 for jactitation of marriage against Mureed Hussain-Respondent No. 3 herein. The claim of the plaintiff was that on 19.5.2003 she was abducted by the defendant along with his companions and during this period the defendant committed Zina with her and thereafter the police recovered her on the order of learned Sessions Judge, Lodhran but during the period of abduction the defendant forcibly obtained her thumb impression on different papers and her husband Qurban Hussain also got the criminal case registered against the defendant and his companions Bearing FIR No. 190-2003 under Sections 10(3) and 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 at Police Station Saddar Kahroor Pakka. It was further alleged that the accused of said criminal case in their bail petition took the plea that the plaintiff was legally wedded wife of defendant and defendant also claimed the plaintiff to be his legally wedded wife, though, the plaintiff never entered into marriage with the defendant nor she was wife of defendant Mureed Hussain nor she ever signed any Nika Nama, though, during the period of her abduction the accused forcibly obtained her thumb marks and signatures. Thus, it was prayed that the plaintiff was not legally wedded wife of Mureed Hussain and decree for jactitation of marriage was sought for by the plaintiff. The suit was resisted by the defendant who filed the written statement wherein it was alleged that Qurban Hussain had divorced the plaintiff with his free consent and after the period of iddat the plaintiff contracted Nikah with the defendant but after the marriage the ex-husband of the plaintiff namely Qurban Hussain who had divorced the plaintiff, enticed away the plaintiff and took her to his home and while leaving the plaintiff also took jewelry and cash of the defendant and thereafter the false case registered against the defendant and with due planning the plaintiff and her husband Qurban Hussain filed a petition under Section 491 Cr.P.C. in the Court of learned Sessions Judge, Lodhran. It was further alleged that the marriage of plaintiff with the defendant took place on 19.3.2002. The defendant also filed a suit for restitution of conjugal rights and both the suits were consolidated and out of the pleadings of the parties, the following consolidated issues were framed :--
1.         Whether the plaintiff has no cause of action to file this suit? OPD
2.         Whether the suit is based on mala fide intention? OPD
3.         Whether the plaintiff is legally wedded wife of the defendant? OPD
4.         Whether the plaintiff is entitled to the decree for jactitation of marriage? OPP
5.         Whether the defendant is entitled to the decree for restitution of conjugal rights? OPD
5-A.     Whether Qurban Hussain has divorced the plaintiff? OPD
6.         Relief.
3.  The parties produced their evidence and after hearing them the learned trial Court decided Issues No. 1 & 2 against the defendant. Issues No. 3 & 5-A were decided in favour of defendant Mureed Hussain. Issue No. 4 was decided against the plaintiff. Issue No. 5 was decided in favour of the defendant and resultantly vide impugned judgment and decree dated 10.12.2003 dismissed the suit for jactitation of marriage and decreed the suit for restitution of conjugal rights. Feeling aggrieved the present petitioner filed two separate appeals, one against the dismissal of her suit for jactitation of marriage and the other against the decree for restitution of conjugal rights passed in favour of the defendant and both the appeals through consolidated judgment were dismissed by the learned Additional District Judge, Kahroor Pakka vide judgment and decree dated 14.5.2004. Hence this writ petition.
4.  Learned counsel for the petitioner contended that it is an admitted fact that both the parties belong to Shia sect and according to Shia Law, the pronouncement of Talaq is necessary but both the Courts below had ignored this fact and from the evidence it is not established that Qurban Hussain husband of the plaintiff had ever pronounced the Talaq. He further contended that according to the defendant Qurban Hussain has executed a written Talaq Nama but strangely enough the said Talaq Nama was not produced in the evidence nor there is any evidence to show that in whose presence Qurban Hussain had ever pronounced the Talaq. He further contended that even if for argument sake it be presumed that the plaintiff had entered into a marriage with Mureed Hussain even then it does not imply that she was divorced by her husband Qurban Hussain and both the Courts below had misread the evidence and had decided the case merely on presumptions and conjectures while ignoring this important aspect of the case that from the evidence it is not established that Qurban Hussain has ever divorced the plaintiff. He further contended that the plaintiff is now residing with Qurban Hussain and has one child out of the wedlock and she is 9 months pregnant and at this stage even the paternity of said child is at stake.
5.  On the other hand, learned counsel for the respondent supported the impugned judgments and decrees of both the Courts below and contended that the evidence produced by the plaintiff clearly shows that plaintiff was divorced by Qurban Hussain and documentary evidence also established this fact. He contended that concurrent findings of both the Court below can not be interfered with in writ petition. He placed reliance upon "Peter John and others Vs. Syed Ali Imam and others" (1986 MLD 1008), "Liaquat Hussain and others vs. Abdul Majid and others" (1986 SCMR 1906), "Shahid Raza Vs. Dr. Fauzia Shaheen etc" (NLR 2005 Civil 235), "Muhammad Nawaz and another Vs. Inayat Muhammad and another" (1990 SCMR 1027) and "Abdul Rahim Vs. Maqbool Ahmad" (NLR 1988 SCJ-126).
6.  Arguments heard. Record perused.
7.  Infact Issues No. 3 & 5-A are the material issues on the basis of which the fate of present controversy rests. As has been mentioned above that in the written statement the defendant alleged that Qurban Hussain had divorced the plaintiff and thereafter she contracted marriage with the defendant. Now the moot point is that whether Qurban Hussain had divorced the plaintiff and if it is proved that she was never divorced by the Qurban Hussain then even if the plaintiff had contracted marriage with Mureed Hussain, even then the said marriage is absolutely void so the determining factor in this case is that whether Qurban Hussain had ever divorced the plaintiff. In this respect Mst. Ruqia Bano herself appeared as PW-1. She deposed that she was married with Qurban Hussain on 22.2.2002 and she was never divorced by Qurban Hussain nor she contracted marriage with Mureed Hussain but she was abducted by Mureed Hussain and her thumb marks were obtained on papers forcibly. In the cross-examination she deposed that she had filed a suit for maintenance against Qurban Hussain but thereafter the compromise was affected. She was questioned by the Court that whether she appeared before the Family Court, Mailsi and made the statement to which she replied that she was forcibly taken away to the Court and her statement was got recorded. She denied that she was ever divorced by Qurban Hussain. She admitted her picture Ex.D-I with Mureed Hussain but deposed that it was forcibly taken in order to blackmail Qurban Hussain. Now from the statement of PW.1 at least it is established that she had denied that she had ever been divorced by Qurban Hussain. Bilal Hussain appeared as PW-2. This witness was brother-in-law of Qurban Hussain and he also deposed that Qurban Hussain had never divorced the plaintiff. Zameer Hussain who was also brother-in-law of Qurban Hussain appeared as PW-3 and he also denied that plaintiff was ever divorced by Qurban Hussain. Qurban Hussain PW-4 deposed that plaintiff was married with him on 22.2.2002 and he had never divorced the plaintiff. The statement of PW-2 also reveals that he admitted that the plaintiff after the alleged marriage with Mureed Hussain remained at the house of father of plaintiff but he denied the suggestion that on 20.12.2002 Qurban Hussain had divorced her. Now this statement at the most suggest that plaintiff married with Mureed Hussain but in no way it proves that she was divorced by Qurban Hussain.
8.  As has been mentioned above that PW-4 Qurban Hussain himself denied that he ever divorced the plaintiff. In the cross-examination he denied that on 12.2.2002 he had purchased the stamp paper and handed over it to Irshad Hussain father of plaintiff. He also denied that on 12.12.2002 he had divorced Mst. Ruqia Bano. He also admitted that the plaintiff had filed a suit against him at Mailsi and appeared before the said Court and made the statement. He denied that Mst. Ruqia Bano before the said Family Court at Mailsi had made the statement that Qurban Hussain had divorced her. Besides this oral evidence a copy of FIR Ex.P-1 and copy of Nikah Nama mark "A" was produced by the plaintiff in evidence. On the other hand Shamshad Ahmad appeared as DW.1. This witness is very much material since on the basis of statement of this witness and other DWs both the Courts below had come to the conclusion that Qurban Hussain had divorced the plaintiff. This witness deposed that on 12.12.2002 Qurban Hussain, Niaz Shah, Zafar Abbas, Bashir Shah, Irshad Shah and Mushtaq Shah after Maghrab came to him and Mureed Hussain got executed Talaq Nama on the stamp paper of value of Rs.85. Qurban Hussain got it written with his consent and he thumb marked the same and that Qurban Hussain was previously known to him and after writing the said Talaq Nama he handed it over to Qurban Hussain and also made entry in the register of stamp paper and Qurban Hussain also thumb marked and signed his register and this stamp paper was entered at Serial No. 1126 of the said register dated 12.12.2002. He further deposed that Qurban Hussain got executed another Iqrar Nama which was executed between Irshad Hussain father of plaintiff and Qurban Hussain and this stamp paper was also signed by Qurban Hussain and 4 others. Iqrar Nama was entered at Sr.No. 1127 dated 12.12.2002 and this Iqrar Nama is Ex.D-2. Now if we go through the statement of this witness, this clearly shows that allegedly on 12.12.2002 two stamp papers were executed by Qurban Hussain, one was Talaq Nama which was handed over to Qurban Hussain and other was Iqrar nama. Iqrar Nama has been produced as Ex.D-2 but strangely enough the said written Talaq Nama has not been produced in evidence. At the most it implies that Talaq Nama was got executed by Qurban Hussain but no where statement of this witness shows that Qurban Hussain had pronounced the Talaq. Until and unless the Talaq is pronounced, it cannot be presumed that Qurban Hussain had divorced the plaintiff.
9.  There is yet another aspect which must be kept in mind that as to when allegedly Qurban Hussain had divorced the plaintiff. When PW-4 Qurban Hussain himself appeared as a witness the suggestion was put to him that he had divorced Mst. Ruqia Bano on 12.12.2002. However, when PW-2 appeared as witness a suggestion was put to him that Qurban Hussain had divorced Mst. Ruqia Bano on 20.12.2002 but when the plaintiff herself appeared as PW. 1 no date was put to her that on the said date i.e. on 12.12.2002 or 20.12.2002 Qurban had divorced her. It may also be mentioned here that Ex.D-2 stamp paper of Iqrar Nama was not issued in the name of Qurban Hussain but in the name of Irshad Hussain and entry is available on the back of Ex.D-2. Niaz Hussain appeared as DW.2. He narrated entirely different story. He submitted that Qurban had filed a suit for restitution of conjugal rights on 23.11.2002 and notice was received at the house of Irshad Hussain and both the parties on 12.12.2003 (and not on 12.12.2002) assembled at his house and he asked Irshad Hussain not to get the criminal case registered but they would get executed the Talaq Nama from Qurban Hussain and on the same day Qurban Hussain executed the Talaq Nama. Now according to this witness the Talaq nama was executed on 12.12.2003. This also negates the version of defendant that on 12.12.2002 Qurban Hussain had executed Talaq Nama. At the cost of repetition it may be mentioned here that said Talaq Nama has never been produced in the Court. Now this witness is also silent that Qurban Hussain had ever pronounced the Talaq orally as is the case of DW.1. The third witness is Mushtaq Hussain, who is DW-3 and he is father of Mureed Hussain defendant. He deposed that father of plaintiff had obtained Talaq from Qurban Hussain through Punchayat and Qurban had divorced the plaintiff with his free consent. He has not uttered even a single word that Qurban Hussain had pronounced the Talaq or had ever executed any Talaq Nama so his statement also does in no way imply that Qurban had ever pronounced the Talaq. In the cross-examination also he admitted that at the time of Talaq he was not present. He also admitted that even in the Punchayat he was not present. In the cross-examination he further deposed that Seghaz (           ) of Talaq were recited by Zulfiqar Shah at the house of Irshad Hussain but strangely enough the said Zulfiqar Shah has not been produced as a witness. He admitted that it was his uncle who informed him that plaintiff had been divorced. Mureed Hussain himself appeared as DW-5. He deposed that plaintiff was divorced by Qurban Hussain. He admitted that Qurban Hussain got criminal case registered against him for abduction of plaintiff and he remained in jail. He has not uttered even a single word that in whose presence Qurban Hussain had ever pronounced the Talaq.
10.  As far as documentary evidence is concerned, Ex.P-1 is the copy of FIR No. 190 dated 4.6.2003 wherein Qurban Hussain had got the criminal case registered against Mureed Hussain for the abduction of his wife Mst. Ruqia Bano. Ex.D-1 is the photograph of Mureed Hussain and plaintiff but as has been mentioned above that the main controversy is that whether Qurban Hussain had ever divorced the plaintiff and if it is proved that he had not divorced the plaintiff then even if the plaintiff had contracted marriage with Mureed Hussain even then she could not be said to be legal wedded wife of Mureed Hussain. Ex.D-2 is the Iqrar nama allegedly executed between Irshad Hussain and Qurban Hussain. In this Iqrar nama it is mentioned that Irshad Hussain through Punchayat had obtained the Talaq nama dated 12.12.2002. Even in this Iqrar Nama it is nowhere mentioned that Qurban Hussain had pronounced  the  Talaq.  If  the Talaq Nama had been obtained by Irshad Hussain as is mentioned in Ex.D-2, then why the said Talaq Nama has not been produced in evidence. This apparently also shows that infact no Talaq Nama was ever executed. Had it been so executed, this would have been the most material document. Ex.D-3 is the copy of plaint which shows that on 17.2.2003 the plaintiff had filed a suit for maintenance against Qurban Hussain. The order sheet shows that on 25.4.2003 the defendant Qurban Hussain made the statement that he was ready to pay Rs.500/- per month as maintenance provided the plaintiff resides with him. On this statement the plaintiff was summoned by the Family Court, Mailsi. The plaintiff appeared before the Court on 3.6.2003. It may be mentioned here that this was not the date fixed in the main suit and file was requisitioned on the written application of Mst. Ruqia Bano wherein she made the statement that Qurban Hussain had divorced her and she had not filed the suit and she had contracted marriage with Mureed Hussain and that the suit be dismissed. Now strangely enough on the same statement the case was adjourned for the fixed date wherein only order was passed that since the plaintiff had refused that she had filed the suit so it be dismissed. The said Court had not summoned Qurban Hussain to verify this fact that whether he had divorced the plaintiff or not in this way this statement of Mst. Ruqia Bano does in no way establish that Qurban Hussain had divorced her. If it is left to the discretion of the wife that whenever she would say that she had been divorced by her husband then the Talaq would be presumed then it would lead to indefinite litigation and even otherwise it is against the principle of law, since Talaq is to be pronounced by the husband and mere statement of wife is not enough to prove that she had been divorced. Ex. D-5 is a petition moved by Irshad Hussain against Qurban Hussain for harassment and this document is as no help for reaching at the conclusion that Qurban Hussain had divorced the plaintiff. Thus, after going through the entire evidence, it stands established that no where from the evidence it is proved that Qurban Hussain had ever divorced the plaintiff Both the Courts below had infact misread the evidence and has dealt with the case from different angle that since the plaintiff had alleged that she had been divorced, so the divorce stands established and thus, committed material irregularity while declaring the plaintiff to be the legally wedded wife of Mureed Hussain.
11.  As far as the contention of learned counsel for the respondent with regard to concurrent findings of both the Courts below are concerned, suffice it would be to say that normally the Courts in a writ petition do not interfere with the concurrent findings but when there is clear cut misreading of evidence and material irregularity in the impugned judgments, this Court has the jurisdiction to interfere even if the findings are concurrent. On this principle the case law cited by the learned  counsel  for  the  respondent  is distinguishable. Resultantly, the findings of learned Trial Court and learned appellate Court on Issues No. 3, 4, 5 & 5-A are set aside. Issue No. 3 stands decided against the defendant. Issue No. 4 stands decided in favour of the plaintiff. Issues No. 5 and 5-A stands decided against the defendant. Resultantly, the judgments and decrees of both the Courts below are set aside and the suit filed by the plaintiff for jactitation of marriage stands decreed while the suit filed by Mureed Hussain for restitution of conjugal rights stands dismissed. Since the complicated questions of fact and law were involved, so the parties are left to bear their own costs.
(R.A.)  Petition allowed

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