Divorce Proceedings are not possible after the death of Husband

PLJ 1991 Lahore 489

Present: MALIK MUHAMMAD QAYYUM, J

Mrs. ZAKIA FAROOQ-Petitioner

versus

CHAIRMAN, UNION COUNCIL, WARD No.90, LAHORE and another-

Respondents.

Writ Petition No.7336 of 1989, accepted on 5.6.1991.

Family Laws Ordinance, 1961 (VIII of 1961)-  

—S.7-Notice of divorce-Proceedings initiated by Chairman after death of husband—Certificate of divorce issued—Challenge to—Whether Chairman could hold proceedings after death of husband-Question of-There is no explanation as to why, if notice of divorce was received during life time of fcrefrg*^, proceedings were not taken by Chairman—Proceedings under Section 7 of Ordinance are primarily designed towards bringing about reconciliation between spouses-Obviously after death of husband, question of reconciliation stood frustrated-Held: It is highly doubtful whether Chairman could hold any proceedings for first time after death of husband of petitioner on an application filed by his brother-Petition accepted and impugned order and divorce certificate declared to be without lawful authority and of no legal
effect                                                                                     [P.492JA.B&C

PLD 1972 Lah. 694 and 1988 CLC 467 «?/.

Mn. Aasma Jehangir, Advocate for Petitioner. Nemo for Respondent No.l.

Mr. Ali Ahmad Awan, Advocate for Respondent No.2. Date of hearing: 7.5.1991.

judgment

On 16th of November, 1987, Mrt.Zakia Farooq, the petitioner herein, was married to Dr.Farooq Akmal, who, unfortunately, died on 15th of July, 1989. It is asserted in this petition that the petitioner remained the wife of Dr.Farooq Akmal till his death. On 9th of October, 1989, she received a notice from the Chairman, Arbitration Council, Ward No.90, Allama Iqbal Town, Lahore, calling upon her to appear before him for constituting an Arbitration Council in connection with the divorce pronounced upon her by her husband. In her reply dated 15th of October, 1989, the petitioner stated that she was never divorced by her husband and the document, if any, produced before him (the Chairman) must have been forged and fabricated by her in-laws. On 22nd of October, 1989, respondent No.l passed an order declaring that the marriage between the petitioner and Dr.Farooq Akmal stood dissolved. In pursuance to that order, a certificate to that effect was also issued by the Chairman on 15th of November, 1989. The order dated 22nd of October, 1989, and the certificate issued by the Chairman on the 15th of November, 1989, have been assailed by the petitioner by filing this constitutional petition.

2.   Mrs.  Asma  Jahangir,  the   learned  counsel  for  the  petitioner  has vehemently contended that all the proceedings relating to dissolution of marriage had been fabricated by the Chairman at the instance of the in-laws of the petitioner, who wanted to deprive her of her due share in the inheritance of .her late husband. It was emphasized by the learned counsel that admittedly, no notice of divorce was ever served upon the petitioner by her husband nor did she receive any communication from the Chairman of the Arbitration Council when her husband was alive. The learned counsel maintained that the Arbitration Council had no jurisdiction to proceed in the matter after the death of the husband of the
petitioner and, in any case, it could not issue any certificate or pass any order.

Mr. Ali Ahmad Awan, the learned counsel appearing on behalf of the respondent, however, stated that the petitioner was divorced by her husband during his life time but due to a misapprehension, the notice of talaq was sent to the Chairman having no territorial jurisdiction, whereafter it was again presented to respondent No.2, who was the relevant Chairman on 20th of March, 1989, and on the expiry of 90 days, the talaq became effective.

3.   As regards the order dated 22nd of October, 1989, and the certificate of talaq issued by the Chairman on 15th of November, 1989, Mr Ali Ahmad Awan did not dispute the proposition that the Chairman could not have decided the question of legality of the talaq said to have been pronounced by the husband of the petitioner nor could he issue any certificate that the divorce had become effective. While dealing with a similar question in the case ofMst. Falimida Bibi v. Mukhtar Ahmad and another (PLD 1972 Lahore 694), this Court ruled that "There is no provision either in the Ordinance or the Rules requiring the Chairman of the Arbitration Council to give a decision or to issue a certificate to make the divorce effective. If the Chairman issued the certificate, it was not under any provision of law and had no legal effect". In Dr. Razia v. Mushir Ahmad Pesh Imam and another (1988 CLC 467), the observations of the Sindh High Court are instructive and may usefully be reproduced as under:-

"It appears to me that the contentions of the petitioner's counsel have some force. The Chairman of the Arbitration Council is empowered merely to bring about the reconciliation between the parties to a marriage and he has no business of going into the niceties of the questions raised before him in respect of the validity of the marriage or the validity of Talaq or the delegation of the right of pronouncement of Talaq. Therefore, the observation made by the respondent No.l in respect of marital status of the petitioner with respondent No.2 or in respect of the delegation of Talaq were not competently made by him. The maximum that the respondent No.l could do in the matter was to record the contentions of both the parties before him and then merely state whether he had been able to bring about a reconciliation between the parties or whether the reconciliation efforts have failed."

The impugned order and the certificate are, therefore, liable to be quashed on this ground alone.

4. The original record was summoned from the Arbitration Council and has been perused with the assistance of the learned counsel for the parties. There is an order dated 16th of March, 1989, on the photostat of a notice by the Chairman, Union Committee, Ward No.91, to the effect that the wife was living in Jahanzeb Block, which falls within the territorial limits of Ward No.90 and that the petitioner may have resort to that Union Committee. There is nothing to show as to in what manner the photo-stat of notice was received by the Chairman, Union Committee, Ward No.91. There is also no indication as to who received back the said notice and presented it before the Chairman, Arbitration Council, Ward No.90. The first order passed by him purports to be of 20th of March, 1989, to the effect that the notice be registered. Surprisingly, however, no proceedings whatsoever were taken upon this notice till 22nd of September, 1989, when one of the brothers of the deceased husband of the petitioner, namley, M. Ali Athar, appears to have presented an application to the Chairman, Arbitration Council, alleging that the petitioner had been divorced by Dr. Farooq Akmal, on llth of March, 1989, through divorce-deed dated llth of March, 1989, photo-stat of which was enclosed and the talaq had become effective. It was alleged that his brother had died on 15th of July, 1989, and the certificate of divorce be issued to him. It is pertinent to note that though it has been stated in the application that the marriage had been dissolved through a divorce-deed dated llth of March, 1989, yet there is no such deed on the record. Instead, there is a photostat of a notice dated llth of March, 1989, addressed to the petitioner purportedly by Dr. Farooq Akmal, pronouncing talaq.

5.          It is significant that the proceedings were, for the first time, taken by the Chairman after the death of the husband of the petitioner. There is no explanation as to why if the notice of divorce which had been received by the petitioner from her deceased husband during his life time, the proceedings were not taken by the Chairman. It is also to be seen that at the time when the application was filed by the brother of the husband of the petitioner; the husband of the petitioner was admittedly dead and no proceedings could, therefore, be taken for the first time on the notice allegedly sent by him at least without a positive proof that the notice dissolving the marriage had been served upon the Chairman and the wife by the husband.

6.          As already observed, proceedings under Section 7 of the Ordinance are primarily designed towards bringing about a reconciliation between the spouses. Obviously, with the death of the husband, the question of reconciliation did not arise and proceedings, even if pending, stood frustrated. It is also to be noticed that nothing has been placed on the record to show service of notice of divorce by the husband during his life time upon the petitioner. It is highly doubtful whether the Chairman could hold any proceedings for the first time after the death of
husband of the petitioner on an application filed by his brother on 22.9.1989.

For the reasons aforesaid, this petition is allowed, the impugned order dated 22nd of October, 1989, and the certificate of divorce issued in pursuance of the said order are declared to be without lawful authority and of no legal effect.

The parties are, however, left to bear their own costs.
(MBC)                             (Approved for reporting)            Petition accepted.