SYED MANSOOR ALI SHAH, J.---Brief facts of the case are that the marriage of the petitioner with respondent No,2 was solemnized on 3-11-2006. Thereafter respondent No,2 sent "talati salasa" along with a notice to the Chairman Arbitration Council on 1-11-2008 from Dubai U.A.E.
2. Learned counsel for the petitioner contends that notice for talaq dated 1-11-2008 sent to the Chairman, Union Council No,50/15 Hajipura, Tehsil and District Sialkot, was rejected by the respondent Nazim on 23-12-2008 on the ground that the said notice had to be attested by the Pakistan Embassy in UAE as it was issued outside Pakistan. Thereafter respondent No,2 filed Writ Petition No,4857 of 2009 which was disposed of vide order, dated 19-3-2009. The order is as follows:-- "Nazim present in Court submits that he will decide the matter in view of the statement made by respondent No,4 (present petitioner).
Learned counsel for the petitioner does not want to press this petition for the time being. Disposed of."
3. The statement of respondent No,4/petitioner referred to above was:--
(1) I have come to know that Kashif Amin son of Muhammad Amin Muhala Haji Pura Sialkot through his Special Attorney filed. Writ Petition No,4857 of 2009 against your good sell (sic) seeking a direction for the proceedings on the basis of an alleged invalid notice of Talaq delivered in your office on 10-11-2008.
(2) In the said Writ Petition there was a misstatement and suppression of the fact that the invalid notice was returned back to the sender on address through the Registered Post on 23-12-2008 as the alleged signature's authenticity could not possibly be verified on Muslim Family Laws Ordinance, 1961 as it did not bear the attestation from Pakistan Embassy of Dubai Abu Dhabi.
(3) Without a valid notice as required under section 9 (sic) of Muslim Family Laws Ordinance the Chairman Union Council cannot lawfully undertake the proceeding under the said Ordinance by constituting an Arbitration Council under section 7(4).
(4) The law on the subject of production of Foreign Documents is clear from the judgments attached here with. I have further learnt that the resort to Writ Petition was meant to pressurize your good sell (sic) to start Divorce proceedings without the mandatory pre- requisite valid notice of divorce.
Thereafter vide order dated 6-5-2009 respondent No,1 held that in sptie of the fact that the Talaq Nama was not verified as the period of reconciliation had lapsed, therefore, the Certificate of Talaq is being issued. Thereafter Certificate of Talaq was issued the same day with effect from 9-2-2009. The petitioner has challenged the said Certificate of Talaq dated 6-5-2009.
4. The counsel for the petitioner submits that the issuance of Certificate of Talaq is in violation of section 7 of the Muslim Family Laws Ordinance (VIII of 1961) (`MFLO') inasmuch as that the pronouncement of talaq by respondent No,2 had to precede the issuance of notice. He further submitted that the notice itself is defective as the same had to be attested by the Pakistan Embassy in Dubai, UAE.
He also submitted that stamp has not been properly placed on the said notice as required under item 9 of the Schedule to the Stamp Act, 1899. He further submits that respondent Nazim has also violated the categorical provision of section 7(4) whereby an Arbitration Council had to be constituted and period of ninety days for reconciliation had to be provided to the parties.Counsel has relied upon re: Lal Din and 2 others v. Mst. Zeenat Bibi and 4 others, (1987 CLC 587), re: Mst. Fahmida Bibi v. Mukhtar Ahmad and another (PLD 1972 Lahore 694), re: Mst. Maqbool Jan v. Arshad Hassan and another, (PLD 1975 Lahore 147), re: Syed Musa Raza Rizvi through Special Attorney v. Mst. Syeda Farkhanda Jabeen Rizvi and another, (2006 CLC 1544), re: Mst. Naseem Akhtar v. Syed Shafqat Ahmed and another, (1997 MLD 11) and re: Abdul Aziz v. Rezia Khatoon, (1969 DLC 586).
5. The Nazim appearing in person submitted that notice of talaq was received from respondent No,2 on 10-11-2008. Thereafter notices were issued to the parties but no one turned up before him. He submitted that due to writ petition mentioned above as well as contempt petition filed in the matter, he took pains to verify the signature of respondent No,2 from UAE Embassy at Islamabad, but received no response. He then issued notice to the parties but did not receive any response either. However, he states that in the contempt proceedings he was directed to decide the matter within fifteen days (no such order has been placed on the record). He, therefore, on the basis of the Special Power of Attorney allegedly issued by respondent No,2 and duly attested by the Pakistani Embassy, issued the impugned Certificate of divorce.
6. Counsel for respondent No,2 submits that the notice issued by petitioner has two parts. It has a "talaq salasa" (divorce deed) bearing signature of two witnesses and along with the said deed is the notice issued under section 7 of MFLO for the purpose of talaq.
He also referred to F.I.R. No,478 of 2008 dated 2-11-2008 to show that the brother of the petitioner had admitted that notice of talaq was issued by respondent No,2. He further submitted that the Nazim has no power to comment upon the validity of the notice and in this respect placed reliance upon re: Mehnaz Mehboob v. Ishtiaq ur Rashid and another, (2006 YLR 335) and re: Muhammad Ali v.
Ahmad Yar, (2006 YLR 2515).
7. He further submits that the constitution of arbitration council is not required for the purpose of divorce. Counsel reliecLupon re: Batool Tahir through Nominee/Representative/Special Attorney Mustejab Zehra v. Province of Sindh through Secretary Local Government Sindh and 3 others, (PLD 2005 Karachi 358) and re: Allah Dad v. Mukhtar and another, (1992 SCMR 1273). He submitted that the power of attorney was duly verified by the Pakistani Embassy at UAE and, therefore, constitutes sufficient notice for the purpose of section 7 of the Muslim Family Laws Ordinance, (VIII of 1961). He further submitted that the return of the notice does not invalidate the talaq and relied upon re: Muhammad Zairaf v. Mst. Safia Bibi and 3 others, (2000 MLD 1900). He argued that the failure of notice does not affect the validity of talaq and relied upon re: Shoukat Ali v. The State, (2004 S.D. 190). Lastly, he submitted that the notice of talaq involves question of factual inquiry which cannot be addressed in a constitutional petition and relied upon re: Ch. Muhammad Javed v. The Chairman, Union Committee (Arbitration Council), Lahore Cantt. And another. (1999 YLR 2399), re: Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. And another, (PLD 1995 SC 66) and re: Al Ahram Builders (Pvt.)
Ltd. v. Income Tax Appellate Tribunal, (1993 SCMR 29).
8. Arguments heard, record perused. After hearing the parties the following questions have arisen which need consideration:--
(I) Whether the pronouncement of talaq needs to precede a notice under section 7 of the Muslim Family Laws Ordinance (VIII of 1961) and if so what is the format of the pronouncement of talaq under the said section?
(II) If the notice under section 7 of the Muslim Family Laws Ordinance (VIII of 1961) is issued from outside Pakistan, what is the requirement of verification of such a notice?
(III) Is the presence of parties required for the purpose of section 7 of the Muslim Family Laws Ordinance, 1961 (VIII of 1961) before the divorce is finalized, what is the procedure of verification of the parties to be followed by the Arbitration Council? Does the presence become important when one of the parties is outside Pakistan?
(IV) Whether the constitution of Arbitration Council is necessary and the period of 90 days has to be exhausted before talaq is to be issued?
(V) If the talaq is in the nature of "talaq salasa" do the provisions of Muslim Family Law Ordinance, 1961 (VIII of 1961) need to be followed at all or is the talaq effective automatically in such cases?
(VI) Whether the Chairman Union Council was under obligation to verify the contents of the notice as well as the identity of the person before issuing the divorce certificate?
(VII) When does the period of 90 days commence i.e, after the said verification of the notice or before?
(VIII)
9. Ms. Hina Jillani and Ms. Nasira lqbal, Advocates Supreme Court of Pakistan were invited as Amici Curiae to make their submissions regarding the above questions:--
10. Ms. Hina Jillani, amicus curiae submits as under:-
(i) Section 7 of the Muslim Family Laws Ordinance, 1961 is absolutely clear and the pronouncement of Talaq can be in any form or shape; even if there is a divorce deed as in this particular case intimation of the pronouncement of Talaq has to be given. She relied on Federation of Pakistan v. Mst. Tahira Begum and others (1994 SCMR 1740);
(ii) She submitted that the notice reaches the Chairman Union Council, he has to carry out verification of the said notice in order to ascertain that the notice has been issued by the husband. She submitted that such verification is not pr6vided in the law or rules, but is required to be read into section 7 of the Ordinance, 1961;
(iii) Verification according to the learned counsel could be through attested documents or physical presence or special power of attorney etc;
(iv) She submits that period of 90 days before the arbitration council should commence from the day verification is complete;
(v) Verification must be in the form of an order that can be ascertained from the record maintained by the Chairman Union Council;
(vi) As far as notice being sent from outside Pakistan, once again verification has to take place and this refer to section 3 of the Ordinance, 1961 to submit that Qanun-e-Shahadat has not been excluded, therefore, the provisions of said Order would apply to notice received from outside Pakistan.
(vii) Submitted that divorce can only take place subject to the provisions of section 7 of the Muslim Family Laws Ordinance, 1961 and in no other manner. "Talaq Salasa" or any other mode of Talaq will not hold ground unless the procedure provided under section 7 is complied with. Relied on Syed All Nawaz Gardezi v. Lt. Col. Muhammad Yusuf (PLD 1963 SC 51), Abdul Mannan v. Safuran Nessa (1970 SCMR 845), Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi (1984 SCMR 583); Malik Javid Ali and another v. Abdul Kadir and another (1987 SCMR 518), Mst. Kaneez Fatima v. Wali Muhammad and another (PLD 1993 SC 901), Mst. Kaniz Fatima v. Wali Muhammad and another (PLD 1989 Lahore 490);
11. Mrs. Nasira lqbal, amicus curiae submits as under:-
(i) It is apparent from the plaint working of section 7(1) that the pronouncement of Talaq precedes the written notice to the Chairman, which is a confirmation of the fact that the husband has pronounced Talaq. Regarding the second part of the question as to what is the format of Talaq, it is obvious that the Talaq may be given in any form whatsoever. It may be given orally or in writing. The basic element is the communication of Talaq to the wife in whatsoever manner the husband chooses to communicate the pronouncement.
The provisions of subsection (1) are mandatory because subsection (2) provides punishment for non-compliance of subsection (1).
(This punishment is to be imposed on the husband in case of non-compliance.)
(ii) Any instrument purporting to confer rights or liabilities must be verifiable. Therefore, any instrument including divorce deed which has been executed outside Pakistan must be verified by the concerned Embassy in order to authenticate the contents of the documents as well as the identity of the executants, otherwise there is a possibility of a forged document being prepared.
(iii) Subsection (3) of section 7 provides that Talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiry of ninety days from the day on which notice under subsection (1) is delivered to the Chairman.
(iv) Subsection (4) of section 7 requires the Chairman to constitute an Arbitration Council within 30 days of receipt of notice for purpose of bringing about a reconciliation between the parties.. However subsections (3) and (4) are distinguishable from subsection (1). These provisions appear to be directory and not mandatory, since no punishment is provided for non-compliance. In fact subsection (3) specifically provides that Talaq shall not be effective until the expiry of 90 days. Therefore, frequently the parties do not appear before the Arbitration Council.
(v) Section 2(a) of MFLO defines "Arbitration Council" means a body consisting of the Chairman and a representative of each of the parties to a matter dealt with in this Ordinance; The proviso which immediately follows section 2(a) provides that where any party fails to nominate a representative within the prescribed time, The body formed without such representation shall be the Arbitration Council. This shows that Arbitration Council can be constituted in the absence of either or both parties.
(vi) When one of the parties is outside Pakistan, his/her presence is not mandatory if the notice has been verified by the relevant Pakistan Embassy.
(vii) Under section 7(3) of MFLO, it is the responsibility of the Chairman to constitute an Arbitration Council within 30 days of the receipt of notice of Talaq. However, if either or both parties fail to appear, the Talaq, unless revoked earlier, shall not be effective until the expiry of ninety days from the day on which notice under subsection (1) is delivered to the Chairman. Therefore, period of 90 days has to be exhausted before certificate of Talaq can be issued by the Chairman which is subject to authentication and verification of the execution of the Talaq deed from the concerned embassy if the Talaq has been executed outside Pakistan.
(viii) The requirements of section 7 of MFLO are mandatory and the Talaq Salasa would not be effective unless notice of the same has been sent to the Chairman. The husband can be penalized under section 7(2) of Muslim Family Law Ordinance, 1961 in case of non- compliance.
12. ArgUments heard. Record perused.
13. Section 7 of the Muslim Family Laws Ordinance, 1961 is reproduced hereunder for ready reference:- Section (7)(1) "Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman a notice, in writing of his having done to, and shall supply a copy thereof to the wife."
(2) Whoever, contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees; or with both.
(3) Save as provided in subsection (5) a talaq, unless revoked earlier expressly or otherwise shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under subsection (1), the Chairman shall constitute an Arbitration Council for the purpose of brining about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in subsection (3) or the pregnancy, whichever is later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.
The above section clearly spells out that the notice to the Chairman has to be in writing, however, prior to the notice the pronouncement of talaq can be in any form whatsoever. It is also provided that a copy of the said notice shall be supplied to the wife of the person concerned. The said subsection 7(1) is a mandatory provision as subsection (2) provides for penalty, in case the provisions of subsection (1) are contravened. In the present case the petitioner pronounced talaq salasa through notice, which is acceptable under section 7(1), however, the notice in writing received by the Chairman Union Council from Dubai U.A.E. Had to comply with the requirements of Article 79 of the Qanun-e-Shahadat Order, 1984. This is also important because the Ordinance does not exclude the application of Qanun-e-Shahadat Order, 1984 to the notice under section 7(1) of the Ordinance. In the present case no such notice was ever received by the Chairman Union Council, which was duly verified by the Pakistan Embassy.
14. Learned counsel for the respondent referred to a Special Power of Attorney in favour of Asif Mahmood son of Fazal Karim executed by respondent No,2 and duly verified by the Consulate General of Pakistan, Dubai, U.A.E. On 19-4-2009. The relevant extracts of the said power of attorney are as follows:-- Special Power of Attorney "Know all men by these presents that I Kashif Amin Butt son of Muhammad Amin Butt R/o Mohallah Mohammad Pura, Shahbaz Colony Silakot, presently residing P.O. Box 2997 Dubai. I have divorced my wife Mst. Romana daughter of Zahid Iqbal Butt R/o Mohallah Haji Pura Sialkot, know proceedings are pending in Court Of Union Nazim Haji Pura Sialkot and another case Romana Zahid v. Kashif Amin pending in the Court of Judge Family Court Lahore or any other sue. I hereby appoint and nominate Asif Mehmood son of Fazal Karim R/o Jalal Pur Jattan Gujrat as my attorney arbitrator toappear on my behalf before union council to join the proceedings and act whatsoever he thinks fit to make statement signed on my behalf to do all act as my arbitrator in union council.The said attorney is authorized to do and cause to be done the following acts, deeds,things and matters, and to do, exercise and enjoys the following powers and rights in respect of aforesaid case in my absence from the country."
15. The said Special Power of Attorney does not constitute notice under section 7(1) of the Muslim Family Laws Ordinance, 1961 because it simply authorizes one Asif Mahmood to pursue the matter pending before the Union Council assuming that the proceedings have been initiated on the basis of earlier notice sent by respondent No,2 to the Chairman Union Council. As the earlier notice is not valid, for reasons given above, the special power of attorney can improve the same. It has now been settled law that talaq is not effective without notice under section 7(1) of the Muslim Family Laws Ordinance, 1961. Reliance is placed on Abdul Mannan v. Safuran Nessa (1970 SCMR 845), Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi (1984 SCMR 583), Malik Javid Ali and another v. Abdul Kadir and another (1987 SCMR 518), Ayyaz Aslam v. Chairman Arbitration Council and others 1990 ALD 702, Mst. Kaneez Fatima v. Wali Muhammad and another (PLD 1993 SC 901), Abbas Khan and 3 others v. Mst. Satbherai and 2 others (1993 CLC 2181), Muhammad Siddique v. Mst. Noor Jahan and another (1994 CLC 1674), Federation of Pakistan v. Mst. Tahira Begum and others (1994 SCMR 1740), Mst. Janat Bibi v. Mst. Bhagan and others (1995 MLD 110), Ahmad Nadeem v. Chairman, Arbitration Council and others (1991 MLD 1198), Dr. Qambar Murtaza Bokhari v. Mst. Zainab Bashir (PLD 1995 Lahore 187) and Muhammad Tayyab v. Chairman/Arbitration Council, Ward No,83, Samanabad, Lahore and others (KLR 2000 Civil Cases 391).
16. The second question that required deliberation is the requirement of "verification" of the notice. It is submitted by the amici curiae that the Chairman Union Council must verify the notice received, in the present case the verification could be done only through Embassy of Pakistan in UAE as per Article 79 of the Qanun-e-Shahadat Order, 1984, but even otherwise the Chairman Union Council has to be satisfied that the notice has been duly executed by the person concerned before the period of 90 days under section 7(3) could commence.
17. In the present case, no notice under section 7(1) has been received by the Chairman Union Council still after lapse of 90 days, a certificate of divorce has been issued, which is not effective as per law laid down by the superior courts. The certificate of divorce is therefore, set aside. Respondent No, 2 is however free to issue fresh notice in writing under section 7(1) with a copy to the petitioner, in that case respondent No,1 will duly verify the said notice and proceed further under section 7 (3) of the Muslim Family Laws Ordinance, 1961.
18. For the above reasons, this writ petition is allowed, certificate of divorce, dated 6-5-2009 is set aside.
19. Valuable assistance rendered, by amici curiae, Messrs Nasira Iqbal and Hina Jillani is thankfully acknowledged.