MAMOON RASHID SHEIKH, J.---Through the instant petition the petitioner has challenged the order , dated 30.04.2015, and the Divorce Certificate, dated 30.04.2015, issued by the Chairman, Reconciliation Committee, Ward No,7, Cantonment Board, Walton Cantt., Lahore (respondent No,1), on the ground that the Divorce Certificate has been issued without jurisdiction and is, therefore, void and of no legal effect. As a consequential relief it has been prayed that the Divorce Certificate be ordered to be cancelled.
2. Notices were issued to respondent No,3 through various modes. However , despite service respondent No,3 failed to enter appearance, therefore, exparte proceedings were initiated agains t him through the order dated 06.08.2015.
3. The brief facts giving rise to this petition are to the effect that the petitioner and respondent No,3 are Muslims and were married at Lahore, their Nikah was performed on 04.08.2007. It is stated that at the time of their marriage the parties were dual nationals of Pakistan and the United States of America (USA) and continue to be so.
In the parties Nikah Nama the petitioner has been shown to be a resident of DHA Lahore whereas respondent No,3 has been shown to be a resident of House No,37-A, Jail Road Lahore. The parties are stated to have moved to Prattville, Alabama, USA, immediately after their marriage. The parties have one son, namely Noah Mehboob Khan, who was born in the USA on 25.07.2008. Respondent No,3 is a member of the Unites States Military and at the time of filing of the petition he was said to be stationed at Honolulu; Hawaii, USA.
The marital relationship between the parties is stated to have deteriorated, at some point in time, resulting in separation on 19.09.2013. On 28.10.2013, respondent No,3 is stated to have "purportedly" divorced the petitioner by way of triple "talaq" whilst he was in Garmisch, Germany with the U.S. Armed Forces. It is further state d that at that time the petitioner and respondent No,3 were permanently residing in Alabama State, USA. Thereafter , on 13.03.2014, respondent No,3 sent a notice, under section 7(1) of the Muslim family Laws Ordinance, 1961 (the Ordinance), through his mother and special attorney , namely Naheed Khan, to respondent No,1 for initiation of proceedings under Section 7 of the Ordinance and issuance of a divorce certificate on the basis of the Divorce Deed. In the said proceedings the petitioner initially went unserved, however , after publication of notice she entered appearance before respondent No,1, in May, 2014. The petitioner joined the proceedings and called into question the validity of the Divorce Deed, the Special Power of Attorney of respondent No,3's mother and more importantly the jurisdiction of respondent No,1 to entertain the matter of divorce between the parties. The matter kept on pending and through the order , dated 28.08.2014, respondent No,1 whilst requiring respondent No,3 to produce the original Power of Attorney and an authenticated copy of the Divorce Deed, adjourned the proceedings sine die. The proceedings were re-initiated on 20.02.2015, upon filing of an application by the special attorney and mother of respondent No,3 for revival of the proceedings. Ultimately through the impugned order , dated 30.04.2015, the impugned Divorce Certificate was issued on 30.04.2015.
4. The learned counsel for the petitioner submits that the sole point which requires determination is the lack of territorial jurisdiction of respondent No,1 to entertain respondent No,3's request for issuance of a divorce certificate on the basis of the purported undated divorce deed wherein the date of the alleged pronouncement of divorce (talaq) is given as 28.10.2013.
5. Further submits that admittedly the parties were married at Lahore. It is also an admitted position that the petitioner and respondent No,3 are dual nationals of Pakistan and the USA. It is further admitted position that the parties have been permanently residing in the USA since their marriage. It is also admitted that respondent No,3 is a member of the US Armed Forces. Separation, between the parties, took place on 19.09.2013. On 28.10.2013 respondent No,3 is alleged to have pronounced divorce (talaq) upon the petitioner , whilst he was in Garmisch, Germany , with the U.S. Armed Forces. At that time, however , the parties were permanently residing in the USA.
6. Further submits that on 13.03.2014 respondent No,3 through his mother , purportedly acting as his special attorney , filed an application before respondent No,1, through mail, for issuance of a divorce certificate under Section 7 of the Ordinance on the basis of the Divorce Deed purportedly executed by respondent No,
1. In the said application the petitioner's address was deliberately wrongly given by respondent No,3 and/or his mother . As a consequence, the petitioner remained unserved. The petitioner became aware of the proceedings before respondent No,1 and the purported pronouncement of talaq after publication of notice in the daily "Dawn", on 13.05.2014. On 15.05.2014 the petitioner moved an application before respondent No,1 for obtaining copies of the proceedings initiated by respondent No,1. The petitioner immediately challenged the territorial jurisdiction of respondent No,1 to entertain respondent No,3's application. The petitioner informed respondent No,1 about the divorce proceedings pending between the parties before the Circuit Court of Jefferson County , Alabama. The petitioner also challenged the veracity of the Divorce Deed as well as the Special Power of Attorney executed in favour of respondent No,3's mother . Respondent No,1 instead of deciding the question of jurisdiction adjourned the proceedings sine die, on 28.08.2014, for production of the original Divorce Deed and the Special Power of Attorney .
7. On 20.02.2015 respondent No,3's mother moved an application for revival of the proceedings. And even though, the original Divorce Deed was not presented, respondent No,1 resumed the proceedings. Similarly , from the copy of the Special Power of Attorney filed by respondent No,3's mother it is evident that the Special Power of Attorney only pertains to the guardianship petition filed by respondent No,3 before the Guardians Courts at Lahore. The Special Power of Attorney did not confer any power upon respondent No,3's mother to either file any proceedings before respondent No,1 or to pursue them. Respondent No,1, however , assumed jurisdiction and proceeded with the matter .
8. Further submits that the petitioner also questioned the jurisdiction of respondent No,1 on the ground that through the Notification/S.R.O.No,1086(K)/61, dated 09.11.1961, the Federal Governm ent under Section 2(b) of the Ordinance had authorized the Director General (Administration), Ministry of External Affairs, to appoint officers of Pakistan missions abroad to discharge the functions of Chairman under the Ordinance. Submits that it was, therefore, contended before respondent No,1 that jurisdiction in the matter lay before the relevant Pakistan mission in the USA as the petitioner as well as respondent No,3 were not only nation als of the USA but were also permanent residents thereof.
9. Submits that respondent No,1, however , turned down the objection on the ground that since the parties Nikah was registered within his jurisdiction and the parties' marriage was also solemnized in DHA, Lahore and that the petitioner was resident at DHA, therefore, he had jurisdiction in the matter and proceeded to pass the impugned order , dated 30.04.2015, and issue the Divorce Certificate of the same date.
10. Contends that under the provisions of Section 2(b) of the Ordinance the Federal Government had issued the above Notification, therefore, the jurisdiction in the matter lay with the foreign mission concerned and not respondent No,
1. This fact was totally ignored by respondent No,
1. Relies on the judgment reported as "Syeda Wajiha Haris v . Chairman, Union Council No,7 Lahore" ( 2010 MLD 989 ).
11. Further submits that this is a classic case of postal divorce. The divorce (talaq) was allegedly pronounced upon the petitioner by respondent No,3 whilst he was in Germany . The pronouncement of divorce (talaq) is purportedly recorded in the undated Divorce Deed. However , the original Divorce Deed was never filed before respondent No,1, therefore, the veracity thereof remains questionable.
12. Further submits that the Divorce Deed has been purportedly notarised but the Notary has not written the date on which the Divorce Deed was notarised. The original Divorce Deed was not presented before respondent No,1 by respondent No,3's attorney . In fact a copy of the Divorce Deed was received by respondent No,1, by mail, purportedly sent by respondent No,3. Contends that in such circumstances no authenticity can be attached to the Divorce Deed.
13. Further submits that the Special Power of Attorney does not confer any power on respondent No,3's mother to pursue the divorce proceedings before respondent No,1 . As such it could not have been acted upon.
14. Further submits that respondent No,1 further erred in not actually constituting an Arbitraion Council as envisaged by Section 7 of the Ordinance.
15. Further contends that Section 7 of the Ordinance does not admit of proceedings being adjourned sine die by the Chairman. Respondent No,1, therefore, erred in having done so.
16. The learned counsel for respondents No,1 and 2 relies on the report and parawise comments and submits that the impugned order , dated 30.04.2015, and the Divorce Certificate of even date, were issued in accordance with the law .
17. Submits that the marriage ceremony/Nikah of the parties was performed at DHA, Lahore. The petitioner was residing within the jurisdiction of respondent No,1, therefore, respondent No,1 had jurisdiction in the matter and the Divorce Certificate has been issued in accordance with the law .
18. Further submits that the Notification, dated 09.11.1961, referred to by the learned counsel for the petitioner has no relevance in view of Rule 3(b) of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961 (the Rules). The Notification has been made only to facilitate Pakistan nationals living abroad. It does not oust the jurisdiction of respondent No,
1. Contends that Rule 3(b) of the Rules determines jurisdiction in such like matters.
Respondent No,1, assumed jurisdiction in the matter in accordance with rule 3(b). Reiterates that the Divorce Certificate has been issued in accordance with the Ordinance and the Rules framed thereunder .
19. Heard. Record perused.
20. The facts of the case have been set out in quite some detail in the preceding paras. The sole point in issue, as argued by the learned counsel for the petitioner , is the assumption of jurisdiction by respondent No,1 in order to pass the impugned order , dated 30.04.2015, and to issue the impugned Divorce Certificate, dated 30.04.2015.
21. In support of their respective arguments the learned counsel for the parties have referred to. Sections 2(b) and 7 of the Ordinance, the Notification/S.R.O. No,1086(K)/61, dated 09.11.1961, which has been issued under Section 2(b), ibid. and Rule 3(b) of the Rules. in order to better appreciate the arguments of the learned counsel it would be advantageous to reproduce the afore-referred provisions hereunder:- Section 2(b) of the Ordinance.
"Section 2(b):-"Chairman" means the Chairman of the Union Council or a person appointed by the Federal Government in the Cantonment areas or by the Provincial Government in other areas or by any officer authorized in that behalf by any such Government to discharge the functions of Chairman under this Ordinance." (Emphasis supplied)
Section 7 of the Ordinance.
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 a notice in writing of his having done so, 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 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 effective until the period mentioned in subsection (3) or the pregnancy , whichever be later , ends.
(6) ________________ ------------- Notification/S.R.O. No,1086(K)61 dated 09.1 1.1961:- "In exercise of the powers conferred by clause (b) of section 2 of the Muslim Family Laws Ordinance 1961 (VIII of 1961), the Central Government is pleased to authorize the Director General (Adm inistration) Ministry of External Affairs to appoint officers of Pakistan missions abroad to discharge the functions of Chairman under the aforesaid Ordinance." ------------- Rule 3(b) of the Rules "Rule 3. The Union Council which shall have jurisdiction in the matter for the purpose of clause (d) of section 2 shall be as follows, namely:---
(a) _______________
(b) in the case of notice of talaq under subsection (1) of section 7, it shall be the Union Council of the Union or Town where the wife in relation to whom talaq has been pronounced was residing, at the time of the pronouncement of talaq: Provided that if at the time of pronouncement of talaq such wife was not residing in any part of West Pakistan, the Union Council that shall have jurisdiction shall be-- in case such wife was at any time residing with the person pronouncing the Talaq in any part of West Pakistan, the Union Council of the Union or Town where such wife so last resided with such person; and
(ii) in any other case, the Union Council of the Union or Town where the person pronouncing the talaq is permanently residing in W est Pakistan;" (Emphasis supplied)
22. Section 2(b) of the Ordinance defines the word "Chairman" to mean the Chairman of the Union Council concerned. And the Union Council as defined in the Ordinance means the basic Local Government Unit. Section 2(b) also provides that the relevant Government may authorize any of its officers to discharge the functions of the Chairman under this Ordinance.
23. Under the provisions of subsection (1) of Section 7, when a man (the husband) wishes to divorce his wife then as soon as he pronounces divorce (talaq) upon his wife he is required to give the Chairman a notice in writing of his having divorced his wife. The husband is further required to supply a copy of the notice to the wife.
24. Under subsection (3) of the Section 7, the Chairman in turn is required to constitute an Arbitration Council within 30 days of the receipt of the notice under subsection (1). so as to bring about a reconciliation between the parties/spouses. The Arbitration Council normally consists of the Chairman and a representative of each of the spouses [Section 2(a) of the Ordinance refers]. The Arbitration Council so formed is required to take all steps necessary to bring about such a reconciliation. However , if the spouses do not reconcile within the stipulated period the Chairman issues the divorce certificate.
25. As will be clear , the Chairman plays a pivotal role in terms of Section 7 of the Ordinance. And in view of the large number of Pakistanis living abroad the Federal (Central) Government in exercise of its powers under Section 2(b) of the Ordinance, has issued the Notification, dated 09.11.1961. The Notification authorizes the Director General (Administration) Ministry of External Affairs, to appoint officers of Pakista n missions abroad to discharge the functions of the Chairman under the Ordinance.
26. Rule 3(b) envisages that the Union Council or in other words the Chairman, which shall have jurisdiction in the case of a notice of divorce (talaq) under subsection (1) of Section 7, shall be the Union Council/Chairman within whose territorial jurisdiction the wife in relation to whom divorce (talaq) has been pronounced was residing at the time of pronouncement of divorce (talaq). The proviso to Rule 3(b) goes on to state that, if, at the time of pronouncement of divorce (talaq) the wife was not residing in any part of Pakistan then the Union Council/Chairman, which shall have jurisdiction in the matter shall be: (a) in case the spouses had resided together in any part of Pakistan at any time then the Union Council/Chairman within whose jurisdiction the wife so last resided with the husband: and (b) in any other case the Union Council/Chairman within whose jurisdiction the husband is permanently residing in Pakistan.
27. I have considered the arguments of the learned counsel for the parties in the light of the above provisions and tend to agree with the learned counsel for respondents Nos,1 and 2 that jurisdiction in the matter is to be determined under the provisions of Rule 3(b). However , the Notification, dated 09.11.1961, also has relevance in the facts and circumstances of the case, as will be elaborated in the later part of the judgment.
28. As will be evident, under rule 3(b), the basic factor which determines the jurisdiction of the Union Council and/or the Chairman for entertaining and procee ding on a notice of divorce (talaq) under subsection (1) of Section 7, of the Ordinance, is the place where the wife was residing at the time of pronouncement of divorce (talaq). In other words the Union Council and/or the Chairman, which would have jurisdiction in the matter would be the Union Council and/or the Chairman within whose territorial jurisdiction the wife was residing at the time of pronouncement of divorce (talaq). Reference in this regard is made to the judgment reported as "Mk Sharifan v. Abdul Khaliq and another" ( 1983 CLC 1296 ).
29. I have examined the facts of the case on the touchstone of Rule 3(b) and find that it has been asserted in the petition, which is duly supported by an affidavit, that at the time respondent No,3 is alleged to have pronounced divorce (talaq) upon the petitioner she and respondent No,3 were permanently residing in Alabama State, in the USA, however , respondent No,3 was stationed in Garmisch, Germany with the U.S. Armed Forces. There is no rebuttal of this assertion nor any counter affidavit has been filed to the petition, as respondent No,3 despite service has failed to enter appearance. In view thereof, on the strength of the judgment reported as "Islamic Republic of Pakistan through Secretary , Ministry of Defence, Government of Pakistan, Rawalpindi and another v. Amjad Ali Mirza" (PLD 1977 Supreme Court 182), wherein it has been inter alia held that in absenc e of a counter affidavit or other material in rebuttal, the averment of facts made in a petition, which is supported by an affidavit, is to be normally accepted as correct, I hold that the petitioner was not residing within the jurisdiction of respondent No,1 at the relevant time. Indeed, she was not residing in any part of Pakistan at the relevant time.
30. In view thereof and on the strength of "Mst. Sharifan's case (supra) I hold that respondent No,1 did not have jurisdiction in the matter . Respondent No,1 has, therefore, erred whilst passing the impugned order , dated 30.04.2015, and issuing the impugned Divorce Certificate, dated 30.04.2015.
31. However , at this stage, on account of the petitioner being not resident in Pakistan at the relevant time the proviso to Rule 3(b) assumes relevance. When the facts of the case are examined in the light of the proviso to Rule 3(b), even then, respondent No,1 does not have jurisdiction in the matter . The reason for the above conclusion is that the marital home of the parties as well as the permanent residence of respondent No,3 in Pakistan is respondent No,3's house/residence at 37-A Jail Road, Lahore. The said house/a ddress does not fall within the jurisdiction of respondent No, 1.
32. As to the contention of the learned Counsel for respondents Nos,l and 2 that the Notification, dated 09.11.1961, has been made to only facilitate Pakistan nationals living abroad and it does not oust the jurisdiction of respondent No,1, suffice it to say that the Notificati on has been promulgated to precisely deal with such like cases. The Notification is an enabling provision and creates a convenient forum for Pakistanis who are resident abroad, especially permanently resident abroad, for dealing with their matrimonial affairs under the Ordinance in the Pakistan mission in the country of their residence.
33. As has been held hereinabove respondent No,1 does not have jurisdiction in the matter , therefore, I tend to agree with the argument of the learned counsel for the petitioner that in the first instance, since the petitioner as well as respondent No,3 are dual nationals of Pakistan and the USA and were permanently residing in the USA at the relevant time, therefore, respondent No,3 should have approached the authorized officer of the concerned Pakistan mission under Section 7, of the Ordinance. Moreover , when this objection was raised before respondent No,1, he should have stayed his hands and required respondent No,3 to first have recourse to the authorized officer of the concerned Pakistan mission abroad.
34. In this respect reference is made to "Syeda Wajiha Haris's case (supra), cited at the bar by the learned counsel for the petitioner , wherein it has been, inter alia, held that for Pakistanis residen t abroad the law has created a remedy and forum for reconciliation between the spouses under the Ordinance in the Pakistan mission in the country of their residence, In view thereof, the husband (therein) was directed to first avail of that remedy in respect of his divorce proceedings.
35. The argument of the learned counsel for respondents Nos,1 and 2 is accordingly repealed.
36. Under the circumstances, I hold that the impugned, order dated 30.04.2015, and the Divorce Certificate, dated 30.04.2015, to be of no legal value and ef fect and are accordingly set aside.
37. The petition is accordingly allowed with the observation that respondent No,3 may approach the appropriate forum, if so advised.
38. The record of the case be remitted to respondent No,1 forthwith.
39. In view of the issues involved, there is no order as to costs.