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----Withdrawn Talaq--Legality--Chairman declared Talaq effective despite fact that according to his own order, husband had withdrawn/revoked notice Talaq--As such impugned order was illegal and liable to be set aside.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 However later on petitioner had withdrawn/revoked divorce (Talaq) and accordingly made statement before Respondent No. 2 on 13.12.2005.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

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