The relevant facts for the decision of this Constitutional petition are that the petitioner and respondent No. l married in accordance with the Muslim rites but unfortunately they could not pull on well. The result was that the spouses decided mutually to dissolve the marriage and petitioner executed divorce deed on 24-2-1997 on a stamp paper. The copy of the same was supplied by the father of respondent No. l to Chairman, Arbitration Council, Ward No.92, Lahore, who issued the notices to the parties. The petitioner appeared and made application on 31-3-1997 for withdrawal of the notice while respondent No. 1 took up the position that since the divorce has been effected as per consent of the both parties the same could not be withdrawn. Respondent No.2 after hearing the arguments declined the application of the petitioner and since 90 days have passed by this time, therefore, he issued Divorce Certificate, which has been challenged through this Constitutional petition.
2. The learned counsel for the petitioner argued that there was no divorce notice given by the petitioner, therefore, proceedings before respondent No-2 were coram non judice. It is added that as per provisions of section 7 of the Muslim Family Laws Ordinance, 1961 (hereinafter to be referred as Ordinance of 1961) the divorce notice is to be sent by the husband and in the absence there could be no proceedings. It is argued that the petitioner has absolute right to withdraw the notice before the expiry of 90 days and respondent No.2 has no choice but to file the case before him, moreso as advised by the Legal Advisor of the Corporation, therefore, the rejection of his application and grant of certificate are illegal. The learned counsel in this behalf has relied on the judgments in the cases of Syed A.I Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf (PLD 1963 SC 51), Shah Muhammad v. Muhammad Yousuf and another (1970 SCM R 481), Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi and others (1984 SCM R 583) and Ghulam Nabi v. Farrukh Latif and 2 others (1986 SCM R 1350). It is argued that the judgment in Writ Petition No. 12249 of 1994 relied by respondent No.2 was not relevant.
3. I have given by anxious consideration to the arguments of the learned counsel for the petitioner, gone through the provisions of Ordinance 1961 and precedents relied on behalf of the petitioner. It is clear from the divorce deed Annexure ' A' that this was executed as a result of settlement between the parties. The relevant portion reads as under:-- This fact is further confirmed by Annexure ' C' application moved by the petitioner before respondent No.2, wherein it was stated that the parties have handed over and taken over articles of dowry, therefore, it would be a case not under section 7 but under section 8 of the Ordinance of 1961, which reads as under:-- "8. Dissolution of marriage otherwise than by ' Talaq' . Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by Talaq, the provisions of section 7 shall, mutatis mutandis and so far as applicable, apply It is clear from the above text of the provision of la, that no special procedure has been prescribed under this section and the provisions of section 7 have been made applicable but again subject to the condition that 'so far as applicable'. Section 7 of the Ordinance, 1961 deals only with the divorce by the husband and the case of other forms of divorce recognised by Islam would not be covered by it.
4. The divorce having been effected by parties through mutual agreement, therefore, it was "Talaq Mubaraat"' and irrevocable. In this behalf, reference can be made to Muhammad Shahbaz Ahmad v. Sher Muhammad and another (1987 CLC 1496). This is not all. The divorce deed having been executed between the parties of free will and benefits taken thereof. This clearly disentitled the petitioner of any relief in the Constitutional jurisdiction.
The result is that this petition is dismissed in limine.