ABID HUSSAIN CHATTHA, J. This constitutional Petition calls into question the Order dated 13.09.2018 (the "impugned Order") passed by Respondent No. 1/Chairman Arbitration Council Walton Cantt Board, Lahore.
2. The sole contention of the Petitioner is that vide impugned Order, Respondent No. 1 declared that she was 'validly' divorced by Respondent No. 2 in accordance with law on 19.09.2011 and proceeded to issue a certificate of effectiveness of Talaq under section 7 of the Muslim Family Laws Ordinance, 1961 (the "Ordinance"). In this behalf, it is contended that Respondent No. 1 had restricted and limited power to issue a certificate of effectiveness of Talaq but had no powers to declare that a valid Talaq had taken place under the Shia Law to which the Petitioner is statedly subject to and that the declaration regarding validity of Talaq is reserved by the Family Court under the provisions of the Family Courts Act, 1964. Reliance is placed on case titled, "Mst. Saira Shaukat through Special Attorney v. District Collector I.C.T., Islamabad and 2 others" (2006 YLR 1753).
3. The respective contentions of the parties have been considered and record perused.
4. For ready reference, section 7 of the Ordinance is reproduced as under:-.
"(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: Provided that where the parties belong to Fiqah-e-Jafria,-- a) the man may voluntarily and with his free will pronounce himself or through duly authorized attorney (Vakil) Talaq uttering in literal Arabic words (seegha) in the physical presence of at least two witnesses qualifying the requirements of clause (1) of Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984); b) the pronouncement of Talaq shall be ineffective if it is done jokingly or under anger, intoxication, insanity, duress or coercion of any kind and from any corner whatsoever; and c) in case of dispute, with reference to clauses (a) or (b) arising due to difference of opinion, the parties or any of the parties may have recourse to a court of competent jurisdiction or by approaching the "Mujtahid-e-Alam" and the decision of Mujtahid-e-Alam shall have a status of an award and the same shall be dealt with in accordance with the provisions of the Arbitration Act, 1940 (X of 1940).
Explanation.--The expression "Mujtahid-e-Alain (Faqih-e-Alam)" means a juris-consult, 'religious scholar or doctor of Shia school of thought well versed with Shariah having international repute and of such recognition. The Council of Islamic Ideology shall maintain a panel of Mujtahid-e-Alam having aforesaid qualification.
(1A) As enshrined in Article 227 of the Constitution of the Islamic Republic of Pakistan, the divorce and matters connected therewith or ancillary thereto shall be decided according to the personal law interpreted by Fiqah-e-Jafria (Shia school of thought).
(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 in 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 of talaq is pronounced, talaq shall not be effective until the period mentioned in subsection [(3)] or the pregnancy, whichever be later, ends.
(6) Nothing shalt 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."
5. It is evident from the above that Respondent No. 1 is only conferred with the power of bringing about reconciliation between the parties and issue a certificate of effectiveness of Talaq. The powers do not extend to declare as to whether a Talaq has been pronounced validly or otherwise which is a function reserved for a Court of competent jurisdiction. Therefore, the observations contained in the impugned Order with respect to the validity of Talaq are unlawful. It is also noted for clarity that certain amendments regarding Shia law were made in section 7 of the Ordinance in 2021 as reproduced above. However, even prior to such amendments, the Chairman Arbitration Council had no power of declaration regarding validity of a divorce.
6. Hence, this Petition is disposed of with the observation that whenever and wherever in any court a question arises as to whether or not Respondent No. 2 has divorced the Petitioner validly, such question shall always be subject to valid proof of several conditions as contained in section 7 of the Ordinance stipulated above, notwithstanding that a certificate of effectiveness of Talaq has been issued by Respondent No. 1. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.