MALIK MUHAMMAD QAYYUM, J.--The dispute in present petition arises out of a matrimonial matter.
Respondent No.2 Mst. Rukhsana was married to Ayaz Aslam petitioner who on 3rd of February, 1990 sent a Talaqnama to the respondent which was received by her on 7th February, 1990.
Simultaneously he sent a notice of Talaq as required by section 7 of Muslim Family Laws Ordinance to the Chairman Committee Ward No.10 Messer Shah Lahore which was received by him on 8th February, 1990. On 22nd of February, 1990 the petitioner revoked this Talaq by sending a telegram to the Chairman which he received on 23rd of February, 1990. Thereafter a written notice dated 24th February, 1990 informing respondent No. 1 that the petitioner had revoked the Talaq was also sent by the petitioner which was duly received by respondent No. 1 on 28th February, 1990. Despite the receipt of the notice as also the telegram respondent No. 1, started proceeding further in the matter with the result that the petitioner filed an application before the Collector Lahore with the prayer that the respondents be directed not to hold any proceedings. On this application report was called from the Chairman Ward No.10 on the basis of which the Collector proceeded to reject the application. This order of the Collector and the proceedings held by the respondents are sought to be quashed through this constitutional petition.
2. The learned counsel for the petitioner relying upon section 7 of the Muslim Family Laws Ordinance 1961 submitted that Talaq having been revoked by the petitioner/husband within the period of 90 days became ineffective and it was not open to the Chairman to hold any further proceedings.
3. Mr. Tariq Ahmad Farooqi, Advocate for respondent No.2 however, contended that the parties were Hanfi by faith and as the marriage has been dissolved by pronouncing Talaq by the petitioner earlier on 5.9.1989, it stood dissolved and respondent No. 1 had ceased to be wife of the petitioner.
The learned counsel while relying upon the judgment of the karachi High Court in Shaukat Hussain vs. Mst. Rubina and others (PLD 1989 Karachi 513) contended that the prevision of section 7 of the Muslim Family Laws Ordinance . 1961 are contrary to the injunctions of Holy Quran and Sunnah and was, therefore, void and no effect can be given to it there to.
4. As regards the question as to whether the provision of section 7 of Muslim Family Laws Ordinance 1961 are void and ineffective, this Court has already held to the contrary in the case of Mst. Kaniz Fatima vs. Wali Muhammad and another (PLD 19. Lahore 490). Even otherwise respondent No. 1 has not challenged these provisions by filling any separate proceedings and it is highly doubtful whether its viries can be examined in a petition filed against her by the petitioner.
5. An regards the merits it is to be seen that the notice as required by section 7 of Muslim-Family Laws Ordinance 1961 for the first time was received by the Chairman on 7th February, 1990 and could be validly withdrawn within 90 days i.e. By or before the 7th May, 1990. Admittedly, the Talaq was revoked by the husband firstly through a telegram which was received by the Chairman on 23rd of February, 1990 and then by the registered notice dated 24th February, 1990 which was received on 28th February, 1990. According to Subsection (2) of Section 7 Muslim Family Laws Ordinance 1961 Talaq becomes, effective on the expiry of 90 days from the date on which notice under subsection (1) is delivered to the Chairman if not unless revoked earlier expressly or otherwise. As in the present case the Talaq stood revoked by the husband through telegram and notice within 90 days of the notice of Talaq, it never became effective and respondent No. 1 has absolutely no jurisdiction to proceed further in the matter.
6. So far as the earlier Talaq dated 5.9.1989, is concerned it is not denied by respondent No.2 that no notice in terms of section 7(1) of the Ordinance in pursuance to that Talaq was ever delivered by the petitioner to the Chairman. Iii these circumstances it cannot be urged with any success that the marriage between the parties stood dissolved on account of the pronouncement of that Talaq.
7. The learned counsel for respondent No.2 next submitted that the petitioner has no desire of living as husband with respondent No.2 and this petition has been filed with mala fide just with a view to prolong the agony to the respondent wife. However, in the absence of any proof it is difficult to accept this contention of the learned counsel for the petitioner. But, in the interest of justice and fairness it is directed that if respondent No. 1 institutes any proceedings for dissolution of marriage, recovery of dower or maintenance etc., the Family Court concerned shall dispose of the same expeditiously and within four months of the institution of those proceedings.
As a result what has been stated above this petition is accepted and the order dated 26.3.1990 and the proceedings undertaken by respondent No. 1 are declared to be without lawful authority and of no legal effect.
There shall be no order as to costs.