1. The petitioner and respondent No.l both of whom are governed by Fiqah-e-Jafaria, were married at Karachi on 10-1-1974. A daughter was also born to them out of the wedlock on 9-11-1977. It then appears that differences arose between the parties which could not be resolved and oh 24-12-1977 the respondent sent a written talaq to the petitioner. The pronouncement of talaq by the respondent was further confirmed through a letter, dated 9-1-1978, addressed by one Syed Muhammad Baqar Najafi, claiming to be a Vakil appointed by the respondent for the purpose.
2. However, the petitioner failed to show any response to the aforesaid letter; consequently, a second letter, dated 4-2-1978, was received by her from Eyed Muhammad Baqar Najafi tG the same effect.
3. It then appears that a notice in respect of the talaq was sent by the first respondent to the learned Civil Judge and Ex-Officio Chairman Union Committee, Karachi in accordance with the provisions of section 7 of the Muslim Family Laws Ordinance, 1961 as is evident from her order, dated 25-3- 1978. It further transpires from the order that notices in regard to the second and the third intimation of talaq were also sent by the respondent to the learned Ex-Officio Chairman who after waiting for the statutory period of ninety days (as provided in section 7(3) of the Muslim Family Laws Ordinance) ordered the talaq to become effective. This order has now been impugned by this petition.
4. I have heard Mr. Syed Abbas Zia, learned counsel for the petitioner and Mr. Khalid M. Ishaque learned counsel for the respondent No.l.
5. Mr. Syed Abbas Zia has raised a two-fold contention. First, according to him, there was no valid talaq given to the petitioner by the respondent No.1 and consequently the proceedings which followed before the learned Ex-Officio Chairman resulting in passing of the order dated 25-3-1978 were without jurisdiction,. His second contention was that even if assuming that talaq had been pronounced by the respondent No.l on 24-1-1977, then the learned Ex-Officio Chairman possessed no territorial jurisdiction to act as such on 24-12-1977. Mr. Khalid Ishaque, on the other hand, has argued that the petitioner had failed to establish through reliable evidence that there was no valid talaq pronounced by the respondent No.l and secondly, that in any case there had been an inordinate delay in filing the present petition since the same was filed after a lapse of about six years --after the talaq had become effective, and this petition was, therefore, liable to be dismissed on account of laches.
6. So far as the first argument of Mr. Syed Abbas Zia is concerned, there has been no contest on the point that both the parties in this petition are governed by Shia Law, according to which a Talaq must be pronounced by the husband orally and in presence of two competent witnesses. A Talaq communicated in writing is not valid under Shia Law, unless the husband is physically incapable of pronouncing it orally. This has been mentioned in all text-books on the subject without any exceptions as was observed by the High Court of Lahore and the Hon'ble Supreme Court in the case of Ali Nawaz Gardazi (See PLD 1962 W.P. Lah. 558 and PLD 1963 SC 51). This requirement of Shia Law is in direct contrast to Sunni Hanafi Law, according to which Talaq may either be oral or in writing. Mr. Khalid Ishaque has placed reliance on two letters, one dated 30-11-1977, addressed to the respondent No.l by Syed Muhammad Baqar Najafi, informing him that the petitioner had appointed him her Vakil for the purpose of obtaining Khula from the. Respondent No.l and the other, dated 1-1-1978, addressed by the petitioner's Advocate to the respondent No.l confirming that the petitioner had accepted the divorce from the respondent No.l without any objection, but these letters fail to indicate that Talaq had been pronounced orally by the respondent No.l as required by Shia Law. However, the onus is on the petitioner to establish that there was no oral Talaq pronounced by the respondent No.l which clearly has not been discharged. No doubt, from the documents relied upon by the petitioner in this respect it cannot be determined whether the respondent No.l had also pronounced oral Talaq, but the onus being on the petitioner, no positive evidence has been provided by her in this respect. Furthermore, this question cannot be permitted to be raised at this stage when the same could be raised by the petitioner during the proceedings before the learned Ex-Officio Chairman. Mr. Abbas Zia has, however, argued that the petitioner was not aware of any proceedings pending before the learned Ex-Officio Chairman in respect of the divorce and consequently the question of her raising any objection therein could hardly arise.
7. Reference was made by the counsel to para No.15 of the petition. A perusal of pare No.15 of the petition, however, shows that the petitioner has only denied knowledge in regard to the confirmation of divorce by the learned Ex-Officio Chairman. At least I cannot spell out any thing else therefrom. In any case, the observations made by the Ex-Officio Chairman in her order, dated 25-3-1978, set the entire controversy at rest as according to her notice in respect of the proceedings before her had been served on the petitioner. Now, if notice of the proceedings had been received by the petitioner, it was more appropriate for her to take all such objections before the learned Ex-Officio Chairman first. Since no objection was taken and the petitioner allowed the Talaq to become C final, she cannot be permitted now to challenge the order of the learned Ex- Officio Chairman. The first contention of Mr. Syed Abbas Zia is, herefore, repelled.
8. The next contention of the counsel is based on Rule 3(b) of the West Pakistan Rules framed under the Muslim Family Laws Ordinance, 1961 which provides that:- "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(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."
9. Basing his argument on this rule, it is contended by Mr. Syed Abbas Zia that at the relevant time the learned Ex-Officio Chairman did not exercise jurisdiction within the territorial limits of the area within which the petitioner resided. Two notifications dated 26-2-1977 and 22-2-1978 have been relied upon by him according to which the learned Civil Judge No.XVII and Ex-Officio Chairman had been empowered to exercise jurisdiction in respect of Union Committee cases arising within the territorial limits of Central Division of Karachi District East and Liaquatabad Division of Karachi District West respectively which admittedly did not extend her jurisdiction to the area where the petitioner was residing at the relevant time. Reliance was also placed by Mr. Syed Abbas Zia on the case of Mst. Sharifanv. Abdul Khaliq 1983 CLC 1296 wherein although the wife resided at Karachi but notice in respect of divorce was sent by the husband to the Chairman Union Council at Mirpur Khas and it was held in that case that the Chairman Union Council at Mirpur Khas had no jurisdiction to issue failure certificate. However, in my opinion, neither Rule 3(b) nor the case cited by Mr. Abbas Zia is attracted to the facts of the present case. The requirement of rule 3(b) only appears to be that notice of Talaq under section 7(1) of the Muslim Family D Laws Ordinance should be sent to the Union Council of the Union or Town where the wife is residing. In the present case, the husband and the wife both resided in Karachi, therefore, it is doubtful whether Rule 3(b) was attracted. But in any case, assuming that the rule was attracted, admittedly, no objection to the jurisdiction of the learned Ex-Officio Chairman had been taken by the petitioner during the pendency of divorce proceeding before her. Since the objection is as to the lack of territorial jurisdiction and not inherent jurisdiction, the same under the circumstances cannot be allowed to be now taken before this Court. Reference in this respect may be made to the cases of S.A. Latif v.
10. Nadir Khan PLD 1968 W.P. Lah. 144, M/s. Haji Ahmad and Co. v. Muhammad Siddiq PLD 1965 W.P.
11. Kar. 293 and Sind Alkalis Ltd. v. Presiding Officer IV Sind Labour Court and two others 1983 PLC 119. In the present case, since the petitioner neither appeared before the learned Ex-Officio Chairman nor raised any objection to her jurisdiction in the matter, the contention of Mr. Syed Abbas Zia cannot be accepted.
12. Lastly, referring to the objection raised by Mr. Khalid Ishaque in respect of laches, it may be pointed out that after talaq had become effective on 25-3-1978, no steps were thereafter taken by the petitioner to challenge the proceedings held by the learned Ex-Officio Chairman till filing of the present petition on 5-3-1984. Reference in this respect has been made to the cases of Nasima Begum v. Settlement and Rehabilitation Commissioner 1982 SCMR 913, Shaikh Atta Muhammad v.
13. Housing and Physical Planning Deptt. Etc. 1980 CLC 446 and Inamurrehman v. Federation of Pakistan PLD 1977 Kar. 524. Although no cases are needed to emphasize the point, but it may be pointed out that in cases such as the present one, transactions which have become past and closed due to efflux of time cannot be permitted to be reopened. After all finality has to be given to such matters at some stage; otherwise the parties would be constantly living in a state of uncertainty and fear. I therefore, fully agree with Mr. Khalid Ishaque that the order of the learned Ex- Officio Chairman cannot be permitted to be challenged after a lapse of six years and the petition miserably suffers from laches.
14. For the aforesaid reasons I find no force in this petition and the same is dismissed but with no order as to costs.