PLJ 2000 Lahore 1345
Present: CH. LJAZ ahmad, J.
Ch. MUHAMMAD
JAVED-Petitioner
versus
CHAIRMAN, UNION COMMITTEE WARD NO. 7, LAHORE
CANTT, LAHORE and
another-Respondents
W.P. No. 29747 of 1997, heard on 28.4.1999.
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
—-S. 7--Constitution of Pakistan
(1973), Art. 199--Petitioner divorced respondent and sent notice thereof to
official respondent alongwith copy of divorce deed—Petitioner, however,
allegedly withdrew notice of divorce before expiry of 90 days-Official respondent
on expify of 90 days from receipt of divorce deed, issued divorce certificate to
respondent-Petitioner challenging divorce certificate-Constitutional petition-Maintainability-Petitioner
admittedly had sent notice of divorce to respondent (wife) and official
respondent-Petitioners further claim that he had subsequently withdrawn notice of
divorce before expiry of 90 days was disputed by both respondents-Factual
controversy thus, existed between
partiec which required evidence, therefore, Constitutional petition was not proper remedy-Petitioner,
however, has alternative remedy under
provisions of Muslim Family Law Ordinance 1961, Constitutional petition, therefore, was not maintainable.
[Pp. 1348 &
1349] A&B
PLD 1963 SC 51; 1971 SCMR 51; PLD 1981 SC 460; NLR 1985 SC 204; NLR 1986 Civil 584; PLJ
1981 SC 812; NLR 1987 SCJ 239; 1992 SCMR 1273;1993 CLC 219; PLD 1985 Lah. 319; 1988
CLC 1872; PLD 1990 SC 504;1986 SCMR 1961; PLD 1982 SC 413; PLD 1972 Lah. 694; PLD
1986 SC246;
1989 SC 360; 1993 SCMR 29 ref.
Syed Muhammad Kaleem Ahmad Khurshid, Advocate for
Petitioner. Mr. Taqi Ahmad Khan, Advocate for Respondent No. 1. Date of hearing:
28.4.1999.
judgment
Brief facts out of
which the present writ petition arises are that the petitioner and
Respondent No. 2 solemnised marriage No. 2. 17.4.1987. Out of the wedlock 2
daughters were born who are with respondent o. Thereafter the relationship of
the petitioner and Respondent No. 2 became restrained. Petitioner divorced
Respondent No. 2 vide divorce deed dated 8.9.1997 and sent notice
thereof to Respondent No. 1 alongwith copy of divorce deed but subsequently petitioner withdrew the
aforesaid divorce deed before the expiry of
90 days on 2.12.1997 and also sent copy of the same to Respondent No. 2. Respondent No. 1 after receiving the letter
dated 2.12.1997 summoned the previous
record and sent notice to Respondent No. 2 for 13.12.1997. Petitioner appeared before Respondent No. 1 on 13.12.1997
but he refused to take any action on
his notice on the ground that he has already issued divorce certificate in favour of Respondent No. 2 on 29.9.1997
on the basis of divorce deed dated
29.6.1997. Learned counsel for the petitioner contended that the petitioner neither divorced Respondent No. 2 on 29.6.1997 nor sent any notice of Talaq as
prescribed by Section 7 (1) of the Muslim Family Laws Ordinance 1961. Hence
divorce certificate issued by Respondent
No. 1 in favour of Respondent No. 2 is violative of the mendatory provisions of the Muslim Family Laws
Ordinance 1961 and law laid down by
the superior Courts. He further urged that divorce certificate issued by Respondent No. 1 is based upon bogus and
fictitious and manoeuvre divorce deed. He further stated that he served notice
to Respondent No. 2 on 8.9. 1997 and
the notice was withdrawn by him on 2.12.1997
before 90 days. Notices were issued by the Respondent No. 1 to Respondent No. 2 on the address of the petitioner
which were received by the Respondent
No. 2 which shows that all the proceedings are manipulated as the divorce deed dated 29.6.1997 is photo copy
the record of the Respondent No. 1.
He further urged that since the notice was not sent by the petitioner alongwith the divorce deed on
29.6.1997. Therefore proceedingsare in violation of the law laid down by the
superior Courts. He relied upon the following judgment:
(i) PLD 1963 S.C 51.
(ii) 1970SCMR51.
(iii) PLD 1981 S.C 460.
(iv) NLR 1985 Supreme Court Judgment 204.
(v) NLR 1986 Civil 584.
(vi) PLJ
1981 S.C 812.
(vii) NLR 1987 Supreme Court Judgment 239.
2. Learned counsel
for the Respondent No. 1 stated that Respondent No. 1 did not receive any
letter dated 2.12.1997 regarding withdrawal of the divorce deed dated
29.6.1997. He further stated that this letter was never received by the
Respondent No. 1 and is not available in the record of the Respondent No. 1. He
further stated that Respondent No. 1. received photo copy of divorce deed dated
29.6.1997 from either of the party. He further stated that petitioner has submitted
application for obtaining copies of the documents in which these facts are not
mentioned at all that he has withdrawn the divorce deed dated 29.6.1997 or that he
has sent a letter to withdraw
the divorce notice dated 8.9.1997. Learned counsel for the Respondent No. 2 raised the following preliminary
objections which are as follows:--
(i) Question
involved in the writ petition requires inquiry into the facts which cannot be
done in Constitutional jurisdiction.
(ii) Petitioner has
alternative remedy by way of filing a revision petition before District Collector
u/s 16 or the Muslim Family Laws Ordinance 1961.
(iii) Respondent No.
2 has solemnised second marriage on 7.12.1997 and a child has also been born
out of the second wedlock.
He further stated that Talaq is
effective even without notice sent by the petitioner. He relied upon the following
judgments:--
(i) 1992 SCMR 1273.
(ii) 1993 CLC 219.
(iii) PLD 1985 Lahore 319.
He further stated that the petitioner approached this Court
with unclean hands as the petitioner himself
admitted in ground-A as the petitioner had only written the word "I divorce" you without address anything
to Respondent No. 2 and petitioner
is not entitled any discretionary relief. He relied upon the following judgments:
(i) 1988 CLC 1872.
(ii) PLD 1990 S.C 504. (iii) 1986 SCMR 1561. (iv)
PLD 1982 S.C 413.
He summed up his arguments that the
petitioner has two alternative remedies either to agitate the matter before the
Collector or to file a civil suit.
3. Learned counsel for the petitioner in rebuttal
stated that petitioner has no alternative remedy as the petitioner has
challenged onlyvires of the notice and
wrongful assumption of jurisdiction by Respondent No. 1. He relied upon PLD 1972 Lahore 694. He
further stated that nodisputed question of fact arises as the petitioner
has not sent any divorce deed to Respondent No. 1 or send notice to Respondent
No. 2. He furtherstated that this fact is
fully borne out from the record of the Respondent No. 1 as the divorce deed dated 29.6.1997 is a
photo-copy.
4. I have given my anxious consideration to the
contention of the learned counsel
for the parties and perused the record myself. It is admittedfact that according to the petitioner he has sent
or served notice to Respondent No. 2
on 8.9.1997 and he has withdrawn the same on 2.12.1997before expiry of 90 days whereas according to the
Respondents Nos. 1 and 2 petitioner
has sent divorce deed on 29.6.1997 and' proceedings werecontinued in according with the law for some time
and finally after the expiry of the
90 days Respondent No. 1 has issued divorce certificate toRespondent No. 2 on 29.9.1997. The nature of
controversy between the parties to
the petition by itself for factual controversy which cannot beresolved in Constitutional jurisdiction of the
High Court. I am fortified by the
judgment of the Hon'ble Supreme Court. Muhammad Yunas's case 1993 SCMR 618. It
is a consistent view of the Supreme Court that in cases wherefactual controversies are involved, Constitutional
petition is not proper remedy.
Petitioner has alternative remedy under the Provisions of theMuslim Family Laws Ordinance 1961. Therefor this
writ petition is not maintainable as
is held by the Hon'ble Supreme Court in a case reported asCh. Muhammad ismaeel's case PLD 1966 S.C 246. My
learned brother Ishnul Haque
Chaudhery J has considered this aspect of the case in W.P. No4174-98 and laid down the following principle:
"There is recent tendency to file
Constitutional petition without exhausting remedies under the statute. This
recent trend is dangerous. Hon'ble Supreme Court clearly held in case reported as Pir Sabir Shah's case
PLD
1995 S.C 66.
The contention of the learned counsel for the
petitioner that he has challenged the vires of the notice, the writ petition is
not maintainable as the principle laid down by the Hon'ble Supreme Court in Shugufta
Begum's case PLD 1989 S.C 360 and 1993 SCMR 29.
In view of what has been discussed
above without pre-judging the issues
on facts, the petitioner is directed to avail alternate adequate remedies in accordance with law. Therefore, I am of the
view that the petition laches merits
which is dismissed in limine.
(A A)
Petition dismissed.
