1. ' Writ Petition No, 1450 of 1984, Writ Petition No, 3255 of 1984 which arise out of identical facts and raise a common question of law can be conveniently disposed of together by one order. Zikria Khan was married to Mst. Arnim, Begum in the year 1972. They lived together for sometimes as husband and wife and then their relations became strained. Zikria Khan pronounced divorce, and under section 7 of Muslim Family Laws Ordinance, 1961 despatched notice of Talaq which was received in the office of Cantonment Magistrate/Administrator Union Committee, Lahore on 5-4- 1983. The Administrator transmitted the notice to the Chairman Union Committee Ward 5, Lahore Cantonment where it was received on 13-4-1983. Proceedings under section 7 of the Muslim Family Laws Ordinance, 1961, read with its rule 6, were then commenced by the Chairman, Union Committee who issued notice to the parties to enter appearance, nominate their representative so as to constitute an Arbitration Council to bring about a reconciliation between them. On the receipt of notice, Mst. Amina Begum appeared and contested that notice as required by section 7 of the Muslim Family Laws Ordinance, 1961 had not been given to her by Zikria Khan, her husband and in the absence of such notice, proceedings cannot be initiated. Zikria Khan despite notice did not enter appearance and adamantly struck to his stand that he had finally and irrevocably divorced Mst. Amina Begum. Chairman, Union Committee Ward No, 5, Lahore Cantt. Vide order, dated 21-9- 1983 impugned in the constitutional jurisdiction, proceeded to observe that divorce pronounced by Zikria Khan cannot be made effective. He strengthened his views by placing reliance on a decision reported in Inamul Islam v. Mst. Hussain Bono and 4 others (1). This order` has been assailed in constitutional jurisdiction with prayer to declare it illegal and to have been passed without lawful authority. Meanwhile, when proceedings, for making the divorce effective, were pending, before Chairman, Mst. Amina instituted a separate application on 16-6-1983 claiming maintenance allowance from Zikria Khan. Notices in the maintenance case were also issued to the parties. Mst.
2. Amina Begum nominated her representative. The
(1) PLD 1976 Lah. 1466 petitioner, however, remained absent. On 11-12-1983, Mr. Aftab Ali Khan, Chairman, Union Committee Ward No, 5, allowed maintenance at the rate of Rs, 1,500 per mensem to the applicant Mst. Arnim..
3. The maintenance order took effect retrospectively for a period of three years preceding the institution of the maintenance claim. When recovery proceedings were set in motion Zikria Khan, writ petitioner, assailed maintenance order in revisional jurisdiction before District Collector, Lahore.
4. Learned Collector on 26-6-1984, observed :- {{URDU TEXT}} ' This order is also under challenge in Writ Petition No, 3255 of 1984.
2. I have heard learned counsel for the parties and examined the record. Learned counsel addressed exhaustive arguments. Judgment was reserved. Writ Petition No, 1450/84 along with the connected Writ Petition 3255/84 has come up for hearing and decision today. Khan Khudadad Khan Burki, Advocate, along with Zahria Khan, on call, was present. Point falling for decision in the constitutional petitions is whether divorce, after expiry of ninety days from the date of receipt of notice of Talaq by the Chairman, Union Committee/Council becomes effective or that Chairman is vested with authority to suspend its operation and annul the divorce. Section 7 of the Muslim Family Laws Ordinance, 1961 governs the matter. It reads :- "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 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) 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 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 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."
5. Under section 7 of the above-noted Ordinance, a person who wishes to divorce his wife shall, as soon as may be, after the pronouncement of Talaq in any form whatsoever, give a notice in writing of his having done so to the Chairman of the Union Council/Town Committee in which the wife in relation to whom Talaq had been pronounced was residing at that stage of time. Simultaneously, - a copy of divorce notice, shall be transmitted to the wife. After the receipt of the notice by the Chairman he is obligated to constitute an Arbitration Council consisting of the representatives of the parties for effecting a reconciliation if any, between the parties. Unless, a notice as required by section 7 of the Ordinance is given to the Chairman, mechanism for bringing about the reconciliation between the parties is not set in motion, nor does the divorce become effective.
6. Obviously, there are two equally important requirements first, notice of divorce must be given to the Chairman, second, a copy of notice must be supplied to the wife. However, subsection (3) of section 7 states that Talaq pronounced unless revoked earlier expressly or otherwise does not become effective until the expiry of the period of 90 days from the day on which the notice of Talaq is delivered to the Chairman, period of ninety days starts from the day notice is received. This period is available to the parties to reconsider and retrace their steps if they are so minded. Legal effects of non-supply of a divorce notice to the wife are not provided in express terms in section 7 of the Ordinance qua the effectiveness of divorce. In Mst. Fehtnida Bibi v. Mukhtar Ahniad and another (I), side note "A", the Court observed a divorce thus does not become effective unless the notice is served on the Chairman of the Union Committee or Council and ninety days expire from the date of receipt of the notice by him. The Chairman is required to bring about reconciliation between the parties for which purpose he is to give notice to them to nominate their representative in order to constitute the Arbitration Council. If any of the parties fails to appear before him, he cannot enforce his attendance nor a default of appearance on the part of any of the parties can be visited with any penal consequence. The divorce, notwithstanding the conduct or attitude of any of the pprties, shall become effective after the expiry of ninety days unless the divorce is revoked earlier by the hus and. In the t'vent, the parties appear before the Chairman and an Arbitration Council is constituted, but reconciliation does not succeed, the only thing the Council or the Chairman may do, is to record in writing that reconciliation has failed. There is no other function which a Chairman or an Arbitration Council is competent to perform in this behalf. If reconciliation does not succeed or the husband does not revoke Talaq before expiry of ninety days, it becomes automatically operative and effective There is no provision either in the Ordinance or the Rules acquiring the Chairman or the Arbitration Council to give a decision or to issue a certificate to make the divorce effective: If the Chairman issued the certificate, it was not under any provision of law and had no legal effect". In Akhtar Hussain v. Collector Lahore etc. (2), the Court observed :- "The proceedings before the Chairman were under section 7 of the Ordinance. The requirements of the law furnished therein so far as this petition is concerned, are that a man who wishes to divorce his wife shall as soon as may be after the pronouncement of Talaq in
(1) PLD 1972 Lab. 694 (2) PLD 1977 Lah. 1173 any form, whatsoever, give Chairman notice in writing of his having done so and shall supply a copy thereof to his wife. A Talaq so communicated unless revoked earlier or the operation of it extended in certain circumstances is not to be effective until the expiry of 90 days from the date when such notice is delivered to the Chairman. The Chairman under the law has a duty on receipt of such notice to constitute an Arbitration Council whose duty is to attempt reconciliation between the spouses within the time permitted under the law for no power was possessed by the Chairman to annul the divorce. Reference to rules for the purposes is not quite relevant. Firstly, if no provision is made in the Act either expressly or by necessary implication then a power cannot be conferred by rules which may make the provisions of the Act inconsistent with it. Secondly, even the rule does not provide that the Chairman has the authority to annul the divorce. On the contrary if any party to the proceedings does not come forward and associate in the proceedings the rule prescribes that proceedings are to continue, whether the party comes forward or not. Such a case cannot be placed on a footing different from the one where attempted reconciliation has failed due to the established fault of one of the parties. The order passed by the Chairman annulling the divorce is clearly without lawful authority and of no legal effect. By the operation of clause (7), subsection (3) read with section 7 of the Ordinance divorce. Will become effective from the date prescribed therein and consequently the period of maintenance would also be governed after taking into account the period of Iddat starting from the time and the date computed by reference to section 8.
7. ' In Inam-ul-Islam v. Mst. Hussain Bono and others (1), the Court had this to say :- "Learned counsel for the petitioner has contended firstly that sending of copy of the notice to the wife under subsection (1) of section 7 of the Ordinance is not mandatory, therefore, even if the respondent's statement to the effect that she never received any notice is accepted, the Talaq would become effective on the expiry of ninety days from the service of notice on the Administrator. Thus, according to him, the Talaq had become effective on 15-12-1971. Secondly, he argued that in any case the respondent having admitted in paragraph 9 of her plaint that the petitioner divorced her on 12-5-1972, she could not have legally claimed maintenance after the said date. Thirdly, it is contended that the maintenance for Iddat period in addition to the period of ninety days provided as cushion period by section 7 of the Ordinance is not permissible under the law. And lastly, learned counsel contended that the maintenance for the daughter (respondent No, 2) at the rate of Rs, 40 p.m. Is excessive. The first three contentions of the learned counsel can be considered together. I do not agree with him that the service of copy of the notice under subsection (I) of section 7 of the Ordinance is not essential to make a divorce effective. There are three important requirements under subsection (1) of section 7 : (i) pronouncement of Talaq in accordance with Muslim Law ; (ii) service of the notice on the Chairman ; and (iii) service of copy of the notice on the wife. If any one of these conditions is not satisfied,
(1) PLD 1976 Lah. 1466 the Talaq would not become effective even after ninety days. The supply of copy of the wife is a necessary part of the requirement of service of notice on the Chairman. Similarly, the provision is clear that the notice to the Chairman shall have to follow a pronouncement of Talaq. Thus, that is also a mandatory requirement. In this case, there is no proof from the petitioner side either of the "pronouncement" on a particular day or of service on the respondent of copy of the notice". In Chuhar v. Mst. Ghulam Fatima and another PLD 1984 Lah. 234 this Court, on section 7 of the Ordinance observed. The main object of section 7 of the Ordinance is to prevent hasty dissolution of marriage by Talaq pronounced by the husband unilaterally, has not been defeated by non- giving of the notice. Section 7 of the Ordinance is obviously for the benefit of female and if section 7(.) of the Ordinance is interpreted in a manner as desired by the learned counsel, it may create many mischiefs and ruin lives of the respondents. To my mind, in the case in hand, the non-giving of notice under section 7(1) of the Ordinance does not render Talaq ineffective."
8. ' In Muhammad Salah-ud-Din Khan v. Muhammad Nazir Siddiqui and others (1), their Lordships of the Supreme Court on section 7(1) (3) of the Muslim Family Laws Ordinance, 1961 observed :- "We observe that in the judgment relied upon by the High Court, namely, Muhammad Rafiq v.
9. Ahmad Yar PLD 1982 Lah. 825, the High Court unfortunately overlooked two pronouncements of this Court, dealing with the same question, namely Ali Nawaz Gardezi v. Muhammad Yusuf PLD 1963 SC 51 and Abdul Mannan v. Safuran Nessa 1970 SCMR 845. In the first mentioned case, it was observed that in view of the provisions of section 7(3) of the Ordinance a Talaq would become effective only after notice of Talaq is given to the Chairman and the period of three months provided for bringing out a reconciliation between the parties has expired. Where the husband does not give a notice of Talaq to the Chairman, it can be deemed that he has revoked the Talaq.
10. While in the second case, namely Abdul Mannan v. Safuran Nessa the view taken by this Court appears with great clarity from the following extract therefrom :- `The learned counsel for the petitioner concedes that no notice of the alleged divorce was given to the Chairman as required by section 7(1) of the Muslim Family Laws Ordinance. That being so the alleged divorce, in view of the express provision of subsection (3) of section 7 of the said Ordinance, is yet to become effective.'
11. ' It is manifest, therefore, that the view expressed by the Lahore High Court in Rafiq's case, which view was relied upon in his impugned judgment by the learned Judge while accepting the revision petition filed by the respondents, cannot be supported and is, in fact, erroneous."
12. Intent of Legislature discernible from section 7 of Ordinance appears to prevent hasty action in pronouncing divorce and if such an action was taken, the law gives time to the parties to retrace and reconcile. In this background, the Ordinance provides for a notice of Talaq to the Chairman and a copy to the wife in relation to whom the divorce had been
(1) 1984 SCMR 583 pronounced. A period of 90 days intervenes, before the divorce is rendered effective. Obvious intent is to make efforts at reconciliation so that if the parties are so minded they can retrace their steps and rejoin to live a happy matrimonial life once again. To achieve this object, Chairman is obligated to constitute an Arbitration Council within a period of 30 days from the receipt of the notice of divorce from' the husband. Divorce becomes effective after the expiry of the statutory period of 90 days unless the wife happened to be pregnant and in that case the period is extended under section 7(5) of the Ordinance. The effect of non-supply of copy of divorced notice to the wife qua the period when the divorce would become effective, is not traceable from the provisions of the Ordinance or the Rules framed thereunder. The whole .Emphasis is on E the date of the receipt of the notice by the Chairman of Union Committe/ Union Council. Terminus a qua is date of receipt of notice by the Chairman. That apart, in the case under consideration there is evidence available on the record that copy of the divorce notice was sent to the wife who had refused to receive it. She appeared in response to a notice not the Chairman, taken the stand that copy of divorce notice had not been given to her and that the divorce thus cannot be made effective. This stand was belied by the record. At no stage of the proceedings Zikria Khan retraced his steps. He stubbornly stuck to his earlier stand of having pronounced divorce. In these circumstances the reconciliation was not possible. Writ petitioner had done all what he could do under the law. He had given a divorce notice to the Chairman indicating his mind irrevocably from which position he never retrieved. He complied with the letter and spirit of section 7 of the Muslim Family Laws Ordinance in sending a 'notice to Chairman and copy to the respondent. Chairman per provisions of section 7 of the Muslim Family Laws Ordinance, was not vested with authority to annul the divorce. After the expiry of they period; as prescribed by section 7, the divorce became effective automatically. The provisions of the Ordinance do not empower the Chairman to stand in the way of divorce becoming effective merely, on account of alleged non-supply of a copy of notice of divorce to the wife. I am of the firm view, in holding that the impugned order of the Chairman lacked authority of law. Impugned order passed was in conflict with the provisions of the Ordinance above-noted, and the Rules framed thereunder. Writ Petition No, 1450 of 1984 is allowed, impugned order is set aside and declared to have been made without lawful authority. By operation of section 7, subsection (3)
13. D read with subsection (5) of the Ordinance, the divorce will become effective from the date prescribed therein i,e, after expiry of 90 days from the date of receipt of notice by the Chairman.
14. ' In the result order dated 26-6-1984 passed by the learned Collector, District Lahore, is also set aside. Revision filed by Zikria Khan to assail correction of maintenance order shall be -deemed io be pending and -required decision on its own merits by the learned Collector after issuing notice to the parties and affording them an opportunity of hearing. Parties to bear their own costs. By an oral order, both the writ petitions were allowed by me on 2-2-1985 where after intimation from office was received at 9-10 a.m. That the list had been cancelled.