PLJ 2010 Lahore
117
Present: Ijaz-ul-Ahsan, J.
KHAWAJA M. SHOAIB--Petitioner
versus
NAZIM U.C. and another--Respondents
W.P. No. 17824 of 2009, decided on 2.11.2009.
West Pakistan Family Law
Rules--
----R. 3(b)--Constitution of Pakistan, 1973, Art.
199--Constitutional petition--Territorial jurisdiction of union council--Notice
of divorce was filed by wife--Challenged due to file before a wrong forum--In
Nikahnama a right of divorce was delegated--Right of divorce was exercised by
the wife--Question of delegation of right of divorce--Confusion regarding
territorial jurisdiction of union councils which were adjacent to each
other--Notice of divorce was submitted with U.C. No. 98 who refused to accept
it citing territorial jurisdiction--Residence of the female was within
territorial jurisdiction of U.C. 97--Scope of--Held: The Union Council within
whose the jurisdiction the lady exercising the right of divorce resides--Where
the nikah was registered or where the husband resides. [P. 120] A
West Pakistan Family
Courts Act, 1964 (XXXV of 1964)--
----Scope and purpose of--To facilitate the woman in
exercising her rights and to save her from getting entangled in legal and
procedural formalities in approaching different fora and Courts of law for
redressal of her grievance--Held: Language of the rule has to be given its
literal interpretation and right of divorce exercised either by husband or by
the wife has to be notified to the union council where the wife/woman resides
at the relevant time. [P. 120] B
West Pakistan Family
Courts Act, 1964 (XXXV of 1964)--
----Ss. 7 & 8--Muslim Family Laws Rules, 1916, R.
3(b)--Non-delegation of the right of divorce--Prima facie--Right once granted
cannot unilaterally be revoked--Question of validity of revocation of right
divorce document--Notice of divorce was filed before wrong forum--Nikahnama was
registered with U.C. 98 while the lady resides within territorial jurisdiction
of U.C. 97--Confusion regarding territorial jurisdiction of both union
councils--Union Council entertained the notice and summoned the parties for
reconciliation--Petitioner participated in the proceedings--Coram non judice,
illegal without jurisdiction--Held: High Court summoned both parties and
provided them yet another opportunity to reconcile--Effort did not succeed
either--Petitioner appeared to be hell bent on keeping his wife hanging and
stuck in legal technicalities and quibbles despite expiry of the statutory
period of ninety days--Further held: Procedural formalities are meant to
facilitate and not thwart justice--No illegality was found in exercise of his
jurisdiction by U.C. 97. [P. 121] C
Mr. Azhar Maqbool Shah, Advocate for Petitioner.
Ms. Shamsa Ali, Advocate for Respondent.
Date of hearing: 2.11.2009.
Judgment
Through this petition the notice of divorce filed by
Respondent No. 2 with Respondent No. 1 has been challenged on the ground that
it has been filed before a wrong forum. It has been stated that the marriage
between the parties was solemnized on 7.12.2008 and Rukhsati took place on
24.12.2008. In the Nikahnama a right of divorce was delegated to Respondent No.
2. This right was exercised by Respondent No. 2 on 8.7.2009.
2. The learned
counsel for the petitioner submits that the marriage took place within the
jurisdiction of UC-98 where it was duly registered. Therefore, filing of notice
of divorce in UC-97 and all subsequent proceedings undertaken by the said Union
Council are coram-non-judice.
3. The learned
counsel relies on rule 3(b) of the West Pakistan Rules under Family Laws to
contend that a notice of divorce is required to be filed at the place of residence
of the spouse against whom such right is to be exercised. It is further
contended by him that the delegation of right of divorce is also challenged by
the petitioner on the ground that the said right was not delegated by agreement
between the parties and that he signed the Nikahnama in ignorance and without
noticing that such right had been delegated in Column No. 18 of the Nikahnama.
He further contends that when the petitioner realized that the Nikahnama
contained such delegation, he executed a revocation of right of divorce
document on 4.7.2009 and communicated it to Respondent No. 2. The learned
counsel contends that where the factum of delegation of right of divorce is
itself under challenge, the Superior Courts have held that the Union Councils have
no jurisdiction to adjudicate upon the matter. Relies on 2000 CLC 202; PLD 2000
Lahore 644 and PLD 1964 (WP) Karachi 306.
4. The learned
counsel for the respondent contests the aforesaid assertions. She submits that
the interpretation of Rule 3(b) ibid as asserted by the learned counsel for the
petitioner is incorrect. The provisions of the rule apply mutatus mutandis to
the wife and she can file such notice at the place where she resides. This is
on the same principle that a wife can file a suit for dissolution of marriage
in a Family Court within whose jurisdiction she resides. She is not required to
file such suit in a Court within whose jurisdiction the husband resides. In
view of the fact that respondent resides within the jurisdiction of UC-97, she
had correctly filed the notice.
5. As far as the
question of delegation of the right of divorce is concerned, she submits that
there was no defect in the original document and the plea has been belatedly
taken after the respondent had exercised the right delegated to her to initiate
proceedings for dissolution of marriage. It is pointed out that the Nikah was
solemnized on 8.12.2008, she sent a notice of divorce on 29.6.2009 and the
revocation of divorce document was executed on 4.7.2009. This clearly shows
that the revocation document was an afterthought and a reaction to the notice
of divorce served by the respondent. She further submits that even otherwise
the right once delegated through the Nikahnama cannot unilaterally be
withdrawn. The learned counsel also points out that an attempt was made on
behalf of the petitioner to seek a restraining order against UC-97 from
proceeding in the matter. However, the civil Court had refused to interfere in
the matter.
6. I have
considered the arguments advanced by both sides.
7. Admittedly the
Respondent No. 2 resides within the territorial jurisdiction of UC-97. Although
the nikah was registered with UC-98 but apparently that occurred on account of
some confusion regarding territorial jurisdiction of both Union Councils which
are adjacent to each other. It has been stated that the notice of divorce was
submitted with UC-98 who refused to accept it citing territorial jurisdiction
constrains and advised the respondent to file it with UC-97 within whose jurisdiction
the respondent admittedly resides. For the purpose of filing notice of divorce,
the Union Council within whose the jurisdiction the lady exercising the right
of divorce resides, is in my opinion relevant, notwithstanding where the nikah
was registered or where the husband resides. The language of Rule 3(b) of the
West Pakistan Rules under Family Laws is quite clear. It has to be interpreted
in light of the intent and purpose of the scheme of the Family Laws Ordinance
which appears to be to facilitate the woman in exercising her rights and to
save her from getting entangled in legal and procedural formalities in
approaching different fora and Courts of law for redressal of her grievance.
Seen from this angle, I am of the opinion that the language of the rule has to
be given its literal interpretation and the right of divorce exercised either
by the husband or by the wife has to be notified to the Union Council where the
wife/woman resides at the relevant time. As far as territorial jurisdiction is
concerned, a woman has the right to approach a Family Court within the limits
of whose jurisdiction she resides. I do not see why the principle would be any
different in case she exercises her delegated right of divorce. In this regard,
the language of Section 8 of the Muslim Family Laws Ordinance 1964 is quite
unambiguous. Section 8 provides as follows:--
"Where the right to divorce has been duly delegated
to the wife and she wishes to exercise that right, or where any of the parties
to the marriage wishes to dissolve the marriage otherwise than Talaq, the
provisions of Section 7 shall, mutatus mutandis and so far as applicable,
apply, (underlining is mine).
8. Section 8, read
with Section 7 and Rule 3(b) ibid clearly show that in a situation, like the
one in the present case, the Union Council within whose territorial limits the
woman resides, has the requisite jurisdiction in the matter.
9. The stand taken
by the petitioner regarding non-delegation of the right of divorce, prima facie
appears to be self-contradictory. On the one hand he has taken the stance that
he did not delegate such right, yet he took steps to revoke such delegation by
executing a Revocation of Right of Divorce Document. The said document is not
of much help to the petitioner either. The right once granted cannot
unilaterally be revoked. The other stance taken by the petitioner that he did
not notice the entry in Column-18 of the Nikahnama when he signed the same,
until the respondent exercised her right under Column-18, does not hold much
water either. There is no explanation why he waited till 4.7.2009 to agitate
the matter. Even otherwise it is hard to believe that an educated and mature
person would sign such an important document without going through its
contents.
10. It is also significant
to note that UC-97 entertained the notice sent by Respondent No. 2, and
summoned the parties for reconciliation. The petitioner received notice,
appeared and participated in the proceedings. The learned counsel has not been
able to point out any prejudice that may have been caused to the petitioner
that may furnish grounds for a direction that the entire exercise undertaken by
Respondent No. 1 is coram non judice, illegal and without jurisdiction. The
union council is exercising its jurisdiction lawfully. It is nobody's case that
it is adjudicating the question of validity of the revocation of right of
divorce document. The said question is the subject matter of a civil suit
pending between the parties in which the learned Court has refused to issue a
restraining order against the union council. The notice of divorce was sent by
Respondent No. 2 to the petitioner and Respondent No. 1 on 29.6.2009.
Respondent No. 1 received the same and summoned the petitioner to appear before
him on 8.7.2009. Admittedly the petitioner has knowledge of the proceedings and
had the opportunity to participate in the process of reconciliation.
Reconciliation did not take place. This Court summoned both parties and
provided them yet another opportunity to reconcile. This effort did not succeed
either. The petitioner appears to be hell bent on keeping Respondent No. 2,
hanging and stuck in legal technicalities and quibbles despite expiry of the
statutory period of ninety days.
11. Procedural
formalities are meant to facilitate and not thwart justice. These should not
and cannot be allowed by the Courts to be misused to harass, torment and
frustrate women, a high percentage of whom constitute the most oppressed
segment of our society.
12. For what has
been stated, no illegality is found in the exercise of his jurisdiction by
Respondent No. 1. As a result this petition fails. It is accordingly dismissed.
(R.A.) Petition dismissed.
