PLJ 2013 Islamabad 9
Present: Noor-ul-Haq N. Qureshi,
J.
SANYA
SAUD--Petitioner
versus
KHAWAJA SAUD
MASUD, etc.--Respondents
W.P. No. 373 of
2012, decided on 18.5.2012.
West
Pakistan
Muslim Family Laws Ordinance, 1961--
----S.
7(1)--Proceedings on basis of divorce deed--Effectiveness of divorce--Service
of notice effected upon petitioner--Jurisdiction assumed by Chairman,
Arbitration Council--Knowledge about pronouncement of talaq--With
such lane excuses, wife cannot deny pronouncement of talaq
as well as proceedings initiated by Arbitration Council, which were likely to
be commenced from date disclosed and to be concluded on its assessment. [Pp. 15 & 16] A
West
Pakistan
Muslim Family Law Rules, 1964--
----R.
3(b)--Notice of Talaq--Pronouncement of--Jurisdiction
of union council--Whereby at time of pronouncement of talaq
if not found available, union or town, where such wife last resides with such
person, has jurisdiction--Point of jurisdiction is entirely resolved by
referring Rule 3(b) of Rules, 1964--Petition was dismissed. [P. 16] B
1992
SCMR & PLD 2005 Kar. 358, rel.
Raja Inam Ameen Minhas
& Ch. Muhammad Waqas, Advocate for Appellant.
Mr. Rizwan Faiz Muhammad Malik, Advocate for Respondents.
Date of hearing:
27.4.2012.
Judgment
Through the
present writ petition, the petitioner seeks relief by declaring the proceedings
conducted by Respondents No. 2 & 3 on the basis of divorce deed dated
28-09-2011 passed orders dated 21.12.2011 & 23.01.2012 & 25.01.2012 as
illegal, corium non-judice and without jurisdiction.
2. The facts narrated in the petition whereby
the petitioner entered into contract of marriage with Respondent No. 1 on
30.03.2006 according to Muslim rites. Couple started living more than one year
in America.
After marriage, one child namely Rehan Khawaja Masud was born as a
result of wedlock on 24.09.2007, who by virtue of his birth, is the citizen of USA.
The couple
returned for visit of Pakistan
in the month of August, 2011, where father of the petitioner was in intensive
care struggling for his life. Respondent No. 1 started quarrelling on petty
matters with the petitioner and by using abusive language, he made life of the
petitioner as well as her family miserable, therefore, no way remained with the
petitioner, except to return to USA and she left for America on 28.9.2011 at
4:00 a.m. in the morning. On reaching America, the petitioner filed
family suit for dissolution of marriage, custody of minor and equitable
distribution of the property before Supreme Court of New York on 06.10.2011. Summons were served upon Respondent No. 1, who appeared with
his counsel on 01.11.2011, produced a forged divorce deed. Prior to that, he
avoided process of law and to defeat the ends of justice, prepared a forged
divorce deed, presented it before Respondent No. 2, who by maneuvering the
record to defeat valuable rights of the petitioner, showed such proceedings
initiated by complying the proceedings required u/S. 7 of the West Pakistan
Muslim Family Laws Ordinance, 1961, thereby validating the divorce deed. The
petitioner, therefore, immediately appeared before Respondent No. 2, on
acquiring knowledge, raised objection about her non-residence within the
territorial jurisdiction of Respondent No. 2. Such point of jurisdiction raised
as well as apprised about the illegalities committed by Respondent No. 1 by
sending notice to petitioner, but instead to consider such legal questions,
Respondent No. 2 assumed the jurisdiction to proceed with the matter. Such
order passed by Respondent No. 2 dated 21.12.2011 was impugned through the
revision petition before Respondent No. 3, which was disposed of with the
direction to Respondent No. 2 to execute divorce deed after determination of
exact date of communication to the petitioner. However, Respondent No. 3 failed
to appreciate the question of territorial jurisdiction. Respondent No. 2,
without providing an opportunity or hearing to the petitioner, issued divorce
certificate dated 25.01.2012. The petitioner, feeling aggrieved by the said
order, invoked constitutional jurisdiction of this Court.
3. Learned counsel for the petitioner Raja Inam Ameen Minhas,
Advocate, while referring divorce deed at page-18 of the petition, pointed out
that it contains date of communication to be 28th day of September, 2011,
whereas the same has been attested on 29.09.2011, hence same while referring
page-27 showing the petitioner leaving in the morning of the said date, as
such, the divorce deed is forged document. He also referred page-32, Ground No.
3 of the revision petition, whereby such plea raised with reference to
submission of divorce deed before Chairman, Arbitration Council on 28.09.2011,
showing that it is a forged/fabricated document prepared with intention to
frustrate the proceeding pending against respondent before Supreme Court of New
York, USA filed by the petitioner. He contended that when the documents, which
were prepared to achieve ill purposes, or on the face of it, appears to be
fabricated, therefore, rest of the claim of pronouncement of Talaq on the basis whereof, is totally vague. He emphasized
that after 12:00 on
28.09.2011, she left Pakistan, she filed a petition for custody of minor on getting
knowledge about the maneuvering of record to defeat the proceedings at New York. She further
agitated her rights before Respondent No. 2 as well as Respondent No. 3. While
referring page-22, which is a notice showing its date
of issuance as 26.10.2011, containing address of New York, therefore, same should have been
sent to New York.
Plea of divorce while challenging jurisdiction of Arbitration
Council.
He referred
page-16, whereby Deputy Commissioner, ICT, Islamabad passed order, while sending the
file to the Chairman, Arbitration Council to execute divorce deed after
determination of exact date of communication to wife. However, Respondent No. 3
observed that there is no chance of reconciliation, but case was remanded to
examine the record produced before the forum and to decide the issue of divorce
in accordance with law and merits on the expiry of three months keeping in view
the purported date of communication to wife, that too, are dated 01.10.2011
& 02.10.2011 needs to be ascertained as per record. He emphasized that such
directions issued vide order dated 23.01.2012 by Respondent No. 3 have not been
complied with by Respondent No. 2. He referred Section 7 of the West Pakistan
Muslim Family Law Ordinance, 1961, which requires service of notice upon wife,
which on the fact of fact and record, not served upon wife, therefore, cannot
be considered as divorce for which, finally the order was passed on 28.09.2011,
subject notice of divorce.
He, in support
of his contention relied upon 1993 CLC 2181 (Abbas
Khan & 03 Others Vs. Mst. Sat Bherai
and Others), whereby the Hon'ble High Court while
considering the issue, observed that Talaq would not
become effective, unless until period of 90-days has elapsed w.e.f, date of receipt of notice of Talaq
by the Chairman, Union Council concerned, a copy thereof has also been received
by the wife. It is observed that 90-days period has not elapsed from the date
of issuance of notice of Talaq. Therefore, relation
between spouse remained as husband and wife after the
death of husband on 14.6.1969, when notice was received by the Chairman on
19.05.1969.
Another case law
has been submitted by the learned counsel for the petitioner reported in PLD
2010 Lah. 681 (Romana Zahid Vs. Chairman, Arbitration
Council/Nazim, Union Council & Another). The Hon'ble High Court, while deciding the impugned
certificate, observed that notice to the Chairman must be in writing and copy
thereof must be supplied to wife. Muslim Family Law Ordinance, 1961 has since
not excluded application of Qananoon-e-Shahadat Order, 1984, which is to be complied with the
requirement of Article 79 of Qanoon-e-Shahadat, 1984. The Chairman, even on expiry of 90-days has
not received notice of Talaq duly verified by
Pakistan Embassy, as such, issuance of certificate, of Talaq
by the Chairman on the basis of such unverified Talaq-e-Salasa became ineffective.
The case law
reported in 2010 MLD 989 (Syeda Wajiha
Haris Vs. Chairman Union
Council No. 7, Lahore)
specified same issue of notice received by wife from the Chairman, Union
Council informing him about notice of divorce by the husband offering
reconciliation proceedings under Muslim Family Law Ordinance, 1961, spouses
were residing abroad. The Hon'ble Court observed that
husband should avail that remedy as forum of reconciliation between spouses in
the Pakistan Mission in countries of their residence lacking whereof,
invalidates such proceedings initiated by the Chairman.
Another case law
reported in PLD 1976 Lah. 1466 (Inamul
Islam Vs. Mst. Hussain Bano & 4-Others) has been referred, which provides the
requirement of pronouncement of Talaq in accordance
with Muslim laws, which includes service of notice on Chairman and on wife,
lacking of any condition even after 90-days, not gives effect to Talaq pronounced.
Learned counsel
for the petitioner further argued that e-mail address of the petitioner was
available. She could have been served through that e-mail, that too, is
lacking, which lead towards an aspect that all the proceedings shown to have
been initiated by Respondent No. 2 in connivance with Respondent No. 1, are
managed merely to defeat the proceedings initiated by the lady at New York.
4. Learned counsel for the respondent argued
that Section 7 of the Muslim Family Laws Ordinance, 1961 is directory in
nature. He emphasized the effectiveness of the divorce not on 28.09.2011, but
it was effected on 25.09.2011 and few days back, she
went to her father with minor son.
He referred
Page-26, a divorce deed signed on 28.09.2011 by Respondent No. 1, whereas
covering letter also contains the same date of its issuance i.e. 28.09.2011
mentioning the address of the petitioner. He also referred Page-29 Annex-B,
containing the date to be 29.09.2011 as well as the receipt of courier service,
both containing the same address. He also drew my attention towards page-30,
which is an e-mail communicated to the petitioner by Respondent No. 1,
containing its date as 01.10.2011. At para-5 of the said e-mail, attachment of
divorce deed has been clearly mentioned for her record and requires
confirmation thereof, so also the other issues, which were required to be
settled between them with regard to the minor. Therefore, while referring such
e-mail, there remained no reason to disbelieve that she was not served with the
notice. Learned counsel for the respondent has also referred Page-32, the first
notice issued from the Chairman, Arbitration Council, whereby the petitioner
was directed to attend the Office on 26.10.2011. He also referred page-33,
whereby the Chairman, Arbitration Council ordered for issuance of notice to the
parties with the caption "Notice Talaq". By
the said notice, it is contended that Respondent No. 1 has given the Chairman
not only the address of the petitioner, but also notice of Talaq
issued to her and further requested for onward proceedings. He also referred
page-44, whereby, the petitioner has appointed her father Khawaja
Dawood Masud as her agent
and he subsequently participated in the proceedings The
said document contains signature and thumb impression of the petitioner with
its date of execution on 04.10.2011, duly received in the Office of the
Chairman on 26.10.2011. He also referred document, a letter issued to
Respondent No. 1 by the Chairman for onward proceedings in this regard, showing
appearance of Raja Inam Ameen
Minhas, Advocate for Kh. Dawood Masud, the
father of petitioner on 21.12.2011, requiring the parties to appear on
28.12.2011. He also referred another notice issued by the Chairman, Arbitration
Council, Islamabad to the lady i.e. the petitioner at her address of New York,
which is a document communicated through registered post as well as Page-40 an
envelope through which, it was dispatched, so also the postal receipt submitted
at Page-41. He referred Page-5 Annex-K submitted with the reply to the instant
petition, whereby the petitioner herself submitted a reply affidavit in support
and in opposition of cross motion before the Supreme Court of County of New
York, showing wherein the Respondent No. 1 as defendant. He specifically
referred Para-26, whereby the fact of divorce, as admitted by the petitioner,
has been mentioned. By the said reply in Para-26, she herself has mentioned the
date to be 26.10.2011 and her appearance before the Arbitration Council on
14.12.2011. He also referred Rule 3(b) of West Pakistan Family Rules, 1961
framed under the Muslim Family Laws Ordinance, which provides the address of
lady to be considered, where she lastly resided with her husband. He argued
that all efforts were made to serve her, which sufficiently prove
that she had the knowledge about pronouncement of Talaq,
issuance of notice and she herself admitted such fact in para-26 of the above
referred document, therefore, it now needs not require to be proved again and
again. He emphasized that purpose is to only acquire knowledge by the lady and
for this purpose, law is very clear, even the legislation by making law,
foolproof procedure, provided in case, she avoids to receive notice.
In support of
his contention, he referred a case law reported as PLD 2005 Karachi 358 (Batool
Tahir through Nominee Vs.
Province of Sindh through Secretary, Local Government
Sindh and 03 Others). The said case was decided by a
Division Bench of the Hon'ble Sindh
High Court, which in view of the scheme of law that Section 7 of the Ordinance
being directory in nature, did not entail any penalty for its non-compliance,
formed an opinion that wife could not claim that non-issuance of notice u/S.
7(1) of the Muslim Family Laws Ordinance, 1961 either by the Nazim Union Council or non-supply of copy of the Talaqnama by her husband, would make Talaq
ineffective or would invalidate the same, merely for the reason that she knew
about Talaq pronounced by the husband, besides the
fact that Talaq would become effective on expiry of
90-days from the date of its pronouncement respective of service of notice on
the Chairman, Union Council or wife. It was also observed that non-service of
notice on them would not make Talaq ineffective.
He also referred
unreported decision of Hon'ble Lahore High Court,
whereby his Lordship Mr. Justice ljaz-ul-Ahsan has
also, while discussing such issue at length, observed that provision of Section
7 (1) and Rule 3(b) are directory in nature, as no penalty provided for
non-compliance, therefore, non-service of notice is merely irregularity, which
does not affect validity of divorce pronounced and communicated. Also, another
issue has been discussed, a notice of divorce to be sent to the U.C., where
wife resides, to facilitate her participation in the proceedings, if she
desires so. The purpose since adequately served, by service of notice on
current address, where she presently resides, when cognizance is taken and for
this score, it cannot be challenged.
Learned counsel
for the respondent has also relied upon a case law reported in 1992 SCMR 1273
(Allah Dad Vs. Mukhtar & Another), whereby while
deciding several other issues, their Lordship observed the effectiveness of the
divorce, even in the absence of notice to the Chairman u/S. 7, as same being
injunctions of Islam.
5. Arguments heard, so also the authorities
referred, the relevant provisions of law and record perused.
6. At the very outset, issues were raised
through the instant writ petition with regard to the service of notice effected upon the petitioner and the jurisdiction assumed by
the Chairman, Arbitration Council.
7. Besides all other factual controversies
raised by other side, I am constraint to confine myself to the extent of her
own admission, which she while submitted a reply affidavit before the Supreme
Court of County of New York in its para-26, as clearly asserted in below
mentioned paragraphs, which is reproduced:--
"After I
filed this action in Court on October
7, 2011 Defendant did not try to leave some documents for me on or
about October 18, 2011
at my parent's residence in Pakistan
with full knowledge that I was in New
York at that time. On or about October 26, 2011, I received
notification for the Arbitration Council (Exhibit 6 to my husband's moving
papers) on my right to attend the proceedings of the Arbitration Council under
the Muslim Family Laws Ordinance/Rules, 1961. In any case, no divorce in Pakistan could
be granted before ninety (90) days from October 26, 2011 (January 24, 2012)"
From the said para, it is crystal clear that petitioner had the knowledge
about the pronouncement of Talaq, proceedings before
the Arbitration Council from the date mentioned in it, therefore, now with such
lame excuses she cannot deny the pronouncement of Talaq
as well as proceedings
initiated by the Arbitration Council, which were likely to be commerced from the date disclosed and to be concluded, on
its assessment.
8. Likewise, while referring Rule 3(b) of the
Rules under the West Pakistan Muslim Law Ordinance, 1961 and its provisos,
which for convenience, are reproduced hereunder:--
"3(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; and"
It is absolutely
clear scheme of law on referring the above procedure provided by the rules,
whereby at the time of pronouncement of Talaq, if not
found available, the Union or Town, where such
wife last resides with such person, has the jurisdiction. Therefore, the point
of jurisdiction is entirely resolved by referring the said Rule 3(b) and its
provisos, which needs not to be further discussed.
9. Likewise, the case law referred by the
learned counsel for the petitioner enunciates a very important principle of law,
which strongly favours the case of Respondent No. 1,
coupled with her own admission as mentioned above.
10. I, therefore, hold that the petition in hand,
merits no consideration, as no illegality has been highlighted nor there is any
reason available on record on the basis whereof, orders passed earlier, could
be interfered, nor there is any valid reason to set aside the same.
11. In view of foregoing reasons, instant writ
petition is dismissed accordingly.
(R.A.) Petition
dismissed
