AMIR HANI MUSLIM, J.---Through this petition, the petitioner has prayed for the following relief(s):--
(a) Restrain the respondent from issuing any certificate of confirmation of the Talaq against Mst.
Batool Tahir or from announcing any final verdict upon the application of Raza Abbas Jafri.
(b) Restrain the respondent from taking any further step towards processing the matter till the final disposal of this petition.
(c) Direct the respondents to act in accordance with the law by creating an Arbitration Council and giving opportunity to the petitioner to present her case as a representative/nominee of Mst. Batool Tahir.
(d) Declare that the respondents holds no justification for entertaining the matter of Talaq when the parties are not residing in their jurisdiction at the time of announcement of Talaq.
(e) Any other relief or reliefs deem fit and proper by this Hon'ble Court.
(f) Costs of the petition.
2. The facts as they appear from the Memo. Of Petition are that the petitioner was married to the respondent No,4 at Karachi on 22-11-1993 under Shia Law. ' The marriage was duly consummated and the petitioner and the respondent No,1 proceeded to and settled in USA and have three children from this wedlock.
3. The respondent No,4, husband of the petitioner, by a notice dated 24-10-2003, which notice was accompanied with a copy of the divorce deed, addressed to the Vice-President/Officer Cantonment Board Office Faisal Colony, Karachi intimated him that he has pronounced Talaq upon the petitioner. The Councilor, Cantonment Board in turn issued notice to the petitioner along with the copy of the divorce deed which copy he had received from the respondent No,4. The notice of the Councilor was received by the father of the petitioner, who approached the Councilor and requested him to supply other relevant documents.
4. On 17-1-2003, the father of the petitioner addressed a letter to the said Councilor challenging his authority to issue notice of the nature, inter alia, on the ground that the petitioner and respondent No,4 were permanently residing in U.S.A. And both were the followers of Shia Asna Ashri Sect, according to which, the divorce pronounced by the respondent No,4 was invalid. On 23-1-2004 the said Councilor of the Cantonment Faisal passed an order concluding that the matter pending before him was beyond his territorial jurisdiction apparently on the ground that the petitioner and her husband were permanent residents of U.S.A.
5. Thereafter the father of respondent No,4 made an application for review of the order of the Councilor and on 12-3-2004 the said Councilor held that the divorce pronounced by the respondent No,4 to the petitioner was ineffective as the petitioner was never served with any notice of divorce. It appears that the father of the respondent No,4 has approached another Councilor, who also by his order dated 10-7-2004 held that he did not have the territorial jurisdiction to take cognizance of the matter.
6. The respondent No,4 after the decision of two different Councilors approached the respondent No,2 by serving him notice ex facie under section 7(1) of Ordinance 1961, who in turn had issued notice to the petitioner. The petitioner claims that she was never served with any notice either by the respondent No,2 or respondent No,4 but on acquiring knowledge about the institution of the fresh proceedings against her, she obtained a photo copy of the notice from the office of the respondent No,2. It has further been pleaded by the petitioner that she has approached the respondent No,2 on 4-9-2004 requesting him to provide her a copy of the notice as well as the other documents. The petitioner claims that the respondent No,2 had disclosed to her that he would pronounce the order confirming the divorce and did not pay any heed to the request of the petitioner in regard to the issues raised by her before him. It appears that the petitioner subsequently served the respondent No,2 a legal notice calling upon him to vacate the notice issued to the petitioner but such notices was responded.
7. The petitioner further pleads in the petition that on 8-10-2004 another application was made to the respondent No,2 by her requesting therein for constitution of Arbitration Council which request of the petitioner was also turned down orally by the respondent No,2 and the petitioner was informed that neither any Arbitration Council would be formed nor would the petitioner be called to participate in any proceedings. It has been alleged that the respondent No,2 had expressed that he would confirm Talaq of the petitioner pronounced by the respondent No,4 on expiry of 90 days of the notice received by him. The petitioner has impugned the actions of the respondent No,2 in these proceedings.
8. It has been argued by learned counsel for the petitioner that unless a notice under section 7(1) of the Muslim Family Laws Ordinance, 1961 (hereinafter referred to as the Ordinance) was served by the respondent No,2 in terms of section 7(1) and an Arbitration Council is constituted in terms of section 7(4) of the Ordinance the Talaq pronounced by the respondent No,4 would not become effective. His further submission was that the Chairman, Arbitration Council the respondent No,3, cannot issue a certificate confirming Talaq. He further submits that the Talaq under the Shia law can only be pronounced in presence of the witnesses and not in the manner by issuing notice to the Chairman in terms of section 7(1) of the Ordinance 1961. It was also contended by the learned counsel for the petitioner that since the petitioner was never served with any notice of divorce, therefore, the question of confirmation and its, validation does not arise. He, therefore, submits that the entire proceedings before the respondents Nos.2 and 3 are not covered in terms of section 7 of the Ordinance and are liable to be quashed as the respondent No,2 pursuant to a notice, received by him from the respondent No,4 in terms of section 7(1) of the Ordinance was not competent to issue certificate confirming Talaq. In support of his arguments he has relied upon the judgment of the Honourable Supreme Court in the case of Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yousuf reported in PLD 1963 SC 51 and the judgment of Lahore High Court in the case of Mst. Fahmida Bibi v. Mukhtar Ahmad reported in PLD 1972 Lahore 694 and an unreported judgment of this Court dated 20-9-1987 passed in Constitutional Petition No,90 of 1984 in the case of Dr. Razia v. Chairman, Union Council Panchait Court and Mushir Ahmed Pesh Imam.
9. As against this learned counsel for the respondent No,4 has argued that the petitioner was served with notice of Talaq from respondent No,4 as far back as on 24-10-2003 and was subsequently served with the notice on 7-1-2004 and thereafter the petitioner herself volunteered to obtain copy of notice on 4-9-2004, therefore, the very argument of the learned counsel for the petitioner that the notice was never served upon he petition in terms of section 7(1) of the Ordinance, 1961 was misconceived. He further submits that the role of the respondent No,2 was limited to the extent that on expiry of 90 days from the date of notice received/delivered to him the Talaq becomes effective irrespective of the fact that any Arbitration Council for the purpose of reconciliation was constituted by the respondent No,2 or not. He further submitted that even non- service of notice upon the petitioner would not invalidate Talaq as has been held by this Court in the case Mirza Qamar Raza v. Mst. Tahira Begum reported in PLD 1988 Karachi 169 which judgment was affirmed by the Honourable Supreme Court of Pakistan in the case of Allah Dad v. Mukhtar reported in 1992 SCMR 1273.
10. We have heard learned counsel and have perused the record.
11. It would be seen that both the Councilors who have given findings declaring the Talaq pronounced by the Respondent No,4 ineffective were in error, as they by doing so have travelled beyond their jurisdiction. The Councillors, in law, have no authority to give a findings validating a Talaq or otherwise.
12. Under the provisions of section 7(1) of the Ordinance 1961 the law requires that a person who wishes to pronounce divorce upon his wife, shall after the pronouncement of Talaq, in any form whatsoever, give the Chairman a notice in writing of his having done so and shall supply a copy thereof to the wife. Admittedly the provisions of section 7(1) of Ordinance 1961 do not require that the Respondent No,4 to give Talaq in writing as the word used therein are 'in any form whatsoever'.
This may include the oral Talaq. The law only contemplates a notice in the form of intimation to the Chairman and copy of such notice be communicated to the wife. Subsection (3) of section 7 of Ordinance, 1961 provides that subject to the exceptions provided in subsection (5) of Ordinance, 1961 a Talaq unless revoked earlier expressly or otherwise shall become effective only after expiry of 90 days from the date on which the notice under subsection (1) of section 7 of Ordinance is delivered to the Chairman. Subsection (4) of section 7 of the Ordinance, 1961 provides that on receipt of notice under subsection (1) of section 7 of the Ordinance, the Chairman shall constitute an Arbitration Council for the purposes of bringing about reconciliation between the parties and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
13. From the plain reading of section 7 of the Ordinance, it would be seen that the law provides the Respondent No,4/husband to give a notice to the Chairman in terms of section 7(1) and upon expiry of 90 days from the date of the delivery of the notice to the Chairman, the Talaq becomes effective subject to, however, the conditions contained under subsection (5) of section 7 of the Ordinance, 1961. Non-constitution of Arbitration Council and/or non-issuance of notice to the wife would not invalidate Talaq pronounced by the Respondent No,4 as the provisions of section 7 of Ordinance are directory in nature as they do not entail any penalty for its non-compliance. The Respondent No,2, in law, is merely empowered to bring about a reconciliation between the parties and has no authority either, in law or otherwise, to go into the niceties of the issues raised before him in respect of the validity of the marriage or the validity of Talaq. The Respondent No,2 under the provision of section 7 of Ordinance 1961 could only record the contentions of both the parties before him and then merely state whether he could bring about reconciliation between the parties or whether the reconciliation efforts failed. He has, therefore, no authority to declare whether divorce has become effective or otherwise. The validity or otherwise of a Talaq can only be examined by a Court of competent jurisdiction under the Family laws.
14. In the case of Mst. Fahmida Bibi v. Mukhtar Ahmad reported in PLD 1972 Lah. 694 it has been held that the Chairman, Arbitration Council could only record the fact as to whether the conciliation between the parties has succeeded or not. The Chairman/Respondent No,2 in law has to record the result of the reconciliation and neither can validate the marriage nor can declare a Talaq ineffective in exercise of the powers under section 7 of the Ordinance.
15. We are fortified by the unreported judgment of this Court dated 20-9-1987 in Constitutional Petition No:(S)90 of 1984 wherein this Court has endorsed the above view. We have further examined the judgment of this Court in the case of Mirza Qamar Raza v. Mst. Tahira Begum, reported in PLD 1988 Kar. 169, which view has been affirmed/approved by the Honourable Supreme Court of Pakistan in the case of Allah Dad v. Mukhtar reported in 1992 SCMR 1273, wherein their Lordships have held that a Talaq would become effective even in the absence of a notice to the Chairman under section 7 of the Ordinance, 1961, so also that the Talaq cannot be declared ineffective in absence of a notice to the Chairman as contemplated by section 7 of Ordinance, which provision of law, their Lordships have held, was against the Injunctions of Islam.
16. For the aforesaid reasons we hold that the petitioner Cannot claim that non-issuance of notice under section 7(1) of the Ordinance to her either by the Respondent No,2 or non-supply of the copy of the Talaquama by the respondent No,4 would make Talaq ineffective and or would invalidate it for more than one reason as the petitioner was in knowledge that Talaq has been pronounced by the respondent No,4 besides the fact that the judgment of the Honourable Supreme Court has clearly held that Talaq would become effective on expiry of 90 days from the date it was pronounced irrespective of the service of notice to the Chairman, Union Council and or the wife and non-service of notice to them would not make Talaq ineffective as has been contended by the learned counsel for the petitioner.
17. These are the reasons for our short order passed on 25-11-2004 by which we had disposed of the petition along with the listed applications.