Mudassir Khalid Abbasi, J.: Through this petition under Article 199 of the Constitution, petitioner has challenged the legality of judgment and decree dated 05.07.1995 passed by Judge Family Court, Lahore/respondent No.2 and judgment and decree dated 26.09.2013 passed by Additional District Judge, Lahore/respondent No.3.
2. Precisely, the facts of the case are that the petitioner was married with the respondent No.1 on 06.04.1978 against the consideration of Rs.25,000/- which was fixed as prompt dower . Out of this wedlock, three children namely Kashifa, Nubla Fatima and Syed Ghulam Farid Bukhari were born. Petitioner filed a suit for maintenance of herself and minors against respondent No.1 on 18.11.1993 which was contested by respondent No.1 by filing his written statement.
Out of divergent pleadings of the parties, following issues were framed:-
1. Whether the plaintiffs are entitled for past and future maintenance allowance as prayed for or to what extent?
OPP
2. Whether the suit is not maintainable in view of preliminary objection No.1? OPD
3. Whether the plaintiffs have no cause of action and the suit is not sustainable in law? OPD
4. Whether the claim of malicious and defendant is entitled for special costs? OPD
5. Relief.
After framing of issues, evidence of the parties was recorded and after hearing the arguments, learned Judge Family Court, Lahore vide judgment and decree dated 05.07.1995 decided the suit in following terms: "Suit to the extent of plaintiff No.1 is hereby dismissed but a decree in favour of plaintiffs No.2 to 4 and against the defendant is hereby granted fixing the monthly maintenance allowance at the rate of Rs.2000/- per month per child from the month of the institution of the suit till the daughters reach the age of majority and are married, and till the custody of minor son is obtained in due course of law or he reaches the age of majority, whichever comes earlier. The defendant is further required to continue depositing the school fee for the minor son in addition to the above maintenance allowances provided he wishes his son to continue his studies in the Aitchison School and the mother of the child has no objection on visiting the child in the school either by his father or his father's father. The defendant is further required to deposit the maintenance allowance at the rate of Rs.2000/- per month per child from the month of November, 1993 till the month of July, 1995 in lump sum within one month and to continue depositing the same before the 15 of each successive month till further orders of this Court. "
3. Petitioner feeling aggrieved with the said judgment and decree passed by respondent No.2, filed an appeal before respondent No.3 who vide impugned judgment and decree dated 01.09.1996 dismissed the same. Petitioner assailed said judgment and decree dated 01.09.1996 in W.P.
No.28810/97, this Court while setting aside the judgment and decree of appellate Court dated 01.09.1996 remanded the case to lower appellate Court for decision afresh in accordance with law. On 18.02.2006, learned Appellate Court again dismissed the appeal of the petitioner , the same was assailed in W.P. No.3690 of 2006. This constitutional petition was accepted with the concurrence of the parties and the impugned judgment and decree dated 18.02.2006 was set aside and case was remanded to lower appellate Court for its decision afresh in accordance with law vide judgment dated 06.11.2012. On 26.09.2013, appellate Court once again dismissed the appeal filed by the petitioner , however , the petitioner was held entitled for the recovery of maintenance @ Rs.10,000/- of her Iddat period.
4. Learned counsel for the petitioner contends that judgments and decrees passed by learned Trial Court and lower appellate Court are result of misreading and non-reading of evidence on the record. Contends that Courts below did not appreciate the law relating to effectiveness of Talaq and disentitled the petitioner from maintenance by holding erroneously that marriage has ended. She further argued that the requirement of Section 7 of the Muslim Family Law Ordinance, 1961 was not fulfilled as the respondent No.1 was required to send the Talaq at the residence of the petitioner where she was residing at the time of pronouncement of talaq, but the respondent No.1 with malafide intention issued the notice of Talaq to the residence of her brother who was residing in Karachi whereas the petitioner was permanent resident of Lahore, therefore, such notice is in violation of the Section 7 of Muslim Family Laws Ordinance read with Rule 3(b) of West Pakistan Rules made under the Muslim Family Laws Ordinance, 1961. She further argued that since no divorce was effected, therefore, the petitioner is entitled for the past present and future maintenance in accordance with her claim before learned Trial Court.
5. It is pertinent to mention here that the respondent No.1 was proceeded exparte on 16.09.2015.
6. Arguments heard. Record perused.
7. There are two critical important questions involved in this case, Firstly, as to whether divorce pronouncement by respondent No.1 has become effective and secondly non compliance of Section-7 of Muslim Family Law Ordinance, 1961 read with Rule 3(b) of WestPakistan Rules under Muslim Family Law Ordinance, 1961 would render the divorce ineffective. In order to address the proposition it would be appropriate to advert to the pleadings of the parties and evidence adduced in support of their stance. Respondent No.1 in his written statement has asserted that he has divorced the petitioner on 28.08.1993 and remarriage in June, 1994. Respondent in his documentary evidence produced divorce deed as Ex-D-32 and receipt of registered AD as Ex-D-33 which was issued to the petitioner as well as to the Administrator,Municipal Corporation, Karachi. Respond ent No.1 also addressed letter to the Mayor/Administrator , Municipal Corp oration, Karachi for issuance of certificate of effectiveness of Talaq on 20.02.1994 which is produced as Ex-D-34. Record further reveals that the then Director Karachi Municipal Corporation forwarded the request of respondent No.1 to the Council Officer, Zonal Municipal Committee (East)
Karachi vide letter dated 01.03.1994 as Ex-D-35. The extract of the letter is reproduced here as under:- "In pursuance to notification No.O.R.8(199)/93 dated 18.03.1993, Notice Divorce dated 20.02.1994, addressed to Administrator , KMC by Mr. S.M. Waqar ul Hassan Shah Bukhari S/O Syed Nazar Hussain Shah Bukahri is sent herewith for further necessary action under Muslim Family Law, 1961. As divorcee is residing within the Union Council/Punchayat Committee falling with the jurisdiction of Zonal Municipal Committee (East) Karachi, therefore, necessary action under rules may be taken, under intimation to the applicant ."
8. Stance taken by the petitioner/plaintif f is that she was not served with notice of Talaq at Lahore where she was residing as required under Section 7 of the Muslim Family Laws Ordinance, 1961, therefore, the Talaq has notth been effected, so far. It is pertinent to mention here that it is an admitted fact on the part of the petitioner that she has received the divorce deed dated 21.08.1993 at Lahore.
9. In order to address the controversy , it would be appropriate to go through Secti on-7 of the Muslim Family Laws Ordinance, 1961:-
7. Talaq.-
(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 notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever , contravenes the provisions of sub- section (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 sub-section (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 sub-section (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing 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 effect until the period mentioned in sub-section [(3)] or the pregnancy , whichever be 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.
Rule 3(b) of W est Pakistan Rules made under the Muslim Family Laws Ordinance, 1961 is reproduced as under:- 3-A. Where the whereabouts of the wife who is to be supplied a copy of the notice of talaq under sub-section (1) of section 7 of the Ordinance, are not known to the husband, or cannot, with due diligence, be ascertained by him, he may, if so permitted by the Chairman, give notice of the talaq to the wife through her father , mother , adult brother or adult sister , or if their whereabouts are not known to the husband or cannot, with due diligence, be ascertained by him, he may, with the permission of the Chairman serve the notice of talaq on her by publication in a newspaper , approved by the Chairman, having circulation in the locality where he last resided with the wife.
10. Guidance can also be sought from the Mullah's Principles of Muhammadan Law which reads as under: "308 Divorce by talak "Any Muslim of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause"
310-T alak may be oral or in writing- "A talak may be effected (1) orally (by spoken words) or (2) by a written document called a talaknama".
313-When talak in writing becomes irrevocable" In the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce (talak-i-bain), and takes effect immediately on its execution."
11. As far as the question of effectiveness of Talaq is concerned, with reference to afore-cited provisions of law it has been held in "Allah Dad v. Mukhtar and another" (1992 SCMR 1073) that divorce would become effective even in the absence of notice to the Chairman under Section-7 of Muslim Family Laws Ordinance, 1961. In continuation of the afore- cited pronouncement in another judgment "Mst. Zahida Shaheen and another v. The State and another" (1994 SCMR 2098), Hon'ble apex Court has further elaborated the effectiveness in following terms:- "Failure to send a notice to the Chairman does not render the divorce ineffective"
12. Larger Bench of Hon'ble Supreme Court titled as "Mst. Kaneez Fatima v. Wali Muhammad and another" (PLD 1993 Supreme Court 901), has held as under:- "The provisions of Section 7 of the Ordinance have remained controversial from the very beginning and there are conflicting views in general about it. In view of the Constitutional restraints the Courts cannot give any verdict on the conflicting claims challenging or justifying the provisions of Section 7 of the Ordinance. However, keeping in view the facts of each case the applicability and interpretation of Section 7 has to be construed in that light."
In a case reported as "Farah Khan v . Tahir Hamid Khan and another" (1998 MLD 85 ) it has been held that:- "Even if it is presumed that the Arbitration Council had no jurisdiction to entertain the notice of Talaq given by respondent No.1 under the provisions of section 7 of the Muslim Family Laws Ordinance, 1961, the right of talaq vested with a husband under the Sharia has not been taken away from a Muslim irrespective of the country to which he belongs. In view thereof, despite the restrictions contained in the Muslim Family Laws Ordinance, 1961, the husband's right of talaq prevails as given to him under the Quranic Injunctions. In Allah Dad v. Mukhtar (1992 SCMR 1273), it was held by the Supreme Court that the Muslim Family Laws Ordinance, 1961, shall have to be interpreted and construed in accordance with the Injunctions of Islam as laid down under the Holy Qur'an and Sunnah and in case of any conflict between the existing law, the Injunctions of Islam shall prevail. In a recent judgment (Muhammad Hanif and others v. Mukarram Khan and others (PLD 1996 Lahore 58), a Division Bench of this Court has held that even if no notice of divorce, as required under section 7 of the Muslim Family Laws Ordinance, 1961, is given to the Chairman Local Council, it will not make a divorce ineffective under Sharia.
In view of the above, the divorce pronoun ced by respondent No.1 on 1-2-1991, had taken effect under the Islamic Injunction even if the notice to the Arbitrat ion Council intimating such talaq or subsequent proceedings taken in this regard and the certificate issued by the Arbitration Council endorsing the effectiveness of talaq are ignored. "
13. In the present case, pronouncement of Talaq and its communication to the petitioner is admitted by both the parties, therefore, keeping in view the afore-cited dictums laid down by the Superior Courts it has become abundantly clear that ef fectiveness of Talaq has taken place.
14. This Court is not inclined to enter into factual controversies. However , it has observed while going through the pleadings that petitioner had been changing her addresses frequently which is evident from the different addresses given in suit/appeal/petition.
15. It is well established principle that powers of judicial review of this Court are not analogues to those of appellate Court, reason being that appellate Court is final Court for determination of question of fact.
16. Interference under the constitutional jurisdiction is permissible only in case of any jurisdictional defect or legal infirmity which does not exist in the present case.
In view of above, this petition does not succeed and is dismissed.