PLJ 2012 Karachi 165 (DB)
Present: Mushir Alam, C.J. and Salman Hamid, J
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.
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.
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