The relevant facts leading to this Constitutional petition are that the petitioner, Mst. Rehmat Ara was married to respondent No,2, Abdul Shahid on 25-12-1992 and no child was born from this wedlock. The relation between the spouses became strained and respondent No,2 gave Talaq to the petitioner on 9-6-1996 in presence of the witnesses. The notice of Talaq was received in the office of Chairman Arbitration Council Halqa No,98, Metropolitan Corporation, Lahore on 18-8-1996 and the notices were issued for 19-9-1996 for the appointment of arbitrator. On 19-9-1996, the petitioner as well as the respondent No,2 appeared before the Chairman Arbitration Council and stated that they did not want to appoint any arbitrator and the respondent No,2 also stated that after the expiration of the period of Iddat, Talaq certificate may be issued. In view of the statement of the parties, the Chairman Arbitration Council passed an order that file be now put up after the expiration of the Iddat period on 17-11-1996. On 21-10-1997, the respondent gave a notice of withdrawal of Talaq and on 22-10-1997, the Chairman Arbitration Council passed the impugned order that as the Talaq had been withdrawn, therefore, the divorce proceedings have ended.
Hence this Constitutional petition.
2. It is contended by the learned counsel for the petitioner that Talaq was given on 9-6-1996 and it became final and effective after the expiry of 90 days on 9-9-1996 and, therefore, its withdrawal by respondent No,2 on 21-10-1996 has no relevance and the Chairman Arbitration Council acted illegally in presuming that the Talaq had been validly withdrawn. Learned counsel further submitted that the period of Iddat of 90 days is to be counted from the date of pronouncement of Talaq and not from the date of issuance of notice of Talaq to the Chairman Arbitration Council.
Learned counsel in support of his contention has relied upon Muhammad Nasir Siddique and others v. Muhammad Salahuddin Khan (1984 CLC 879), Allah Dad v. Mukhtar and another (1992 SCMR 1273) and Chuhar v. Mst. Ghulam Fatima and another (PLD 1984 Lahore 234). On the other hand while vehemently opposing this petition learned counsel appearing for respondent No,2 has submitted that deed of Talaq shows that it was written on 9-6-1996 but was served on the Arbitration Council on 18-8-1996 by the representative of respondent No,2 which would show that in fact the Talaq was given by respondent No,2 to the petitioner on 18-8-1996 and not on 9-6-1996.
Learned counsel has also submitted that in the alternative, under the law, the period of Iddat is 90 days and is to be counted from the date of issuance of notice to the Arbitration Council and not from the date of pronouncement of Talaq and, therefore, the Talaq would have become final and effective only on 18-11-1996 and before that, the withdrawal of Talaq on 21-10-1996 by respondent No,2 was valid and respondent No,1, Chairman Arbitration Council correctly held it to have been validly withdrawn.
3. I have heard the learned counsel for the parties and also the Chairman Arbitration Council who was also present in Court and have also seen the record produced by him.
4. The first submission of the learned counsel for the respondent No,2 is not valid because the Talaq deed itself shows that it was pronounced on 9-6-1996 and when his statement was recorded by the Chairman Arbitration Council on 19-9-1996 once again he reiterated that he had divorced the petitioner on 9-6-1996. The contention of the learned counsel for the respondent No,2 that the date 9-6-1996 as mentioned in the respondent's statement dated 19-6-1996 seems to be a forgery as the same appears to be out of the line and this forgery may have been committed by the petitioner or any of her representative. This assertion has been refuted by the Chairman Arbitration Council who was also present in Court and stated that the date is also in his hand-writing and the respondent's statement was correctly recorded by him.
5. The only issue now involved in this petition is as to whether the period of Iddat is to be counted from the date of pronouncement of Talaq i,e, 9-6-1996 or from the date when the notice was served upon the Chairman Arbitration Council i,e, 18-8-1996.
6. Learned counsel for the respondent No,2 has placed his reliance on Ayyaz Aslam v. Chairman Arbitration Council etc. (1990 ALD 702), wherein it was held by the learned Single Judge of this Court that Talaq becomes effective under section 7(2) of the Muslim Family Laws Ordinance, 1961 on the expiry of 90 days from the date on which notice under subsection (1) thereof is delivered to the Chairman. Learned counsel has also relied on Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi and others (1984 SCMR 593) wherein the Supreme Court of Pakistan held that a Talaq which is given without notice to the Chairman Arbitration Council is ineffective and Talaq would be effective only after the notice of Talaq is given to the Chairman and prescribed period of three months is expired. The Honourbale Supreme Court of Pakistan while delivering this judgment also held that the view expressed by the High Court in Muhammad Rafique v. Ahmad Yar and another (PLD 1982 Lahore 825) is erroneous.
7. In Chuhar v. Mst. Ghularn Fatima and another PLD 1984 Lahore 234) --a learned Single Judge of this Court took a view that Talaq pronounced by husband unilaterally would not be defeated by non-giving of notice under section 7 or section 7(1) of the Muslim Family Laws Ordinance, 1961 and it would not become ineffective. In Muhammad Nasir Siddique and others v. Muhammad Salahuddin Khan (1984 CLC 879) similar view was expressed by this Court and it was held that if the execution of divorce deed is once proved then Talaq would become effective after expiry of 90 days even if the notice is not served on the Chairman concerned. Both these judgments relied upon by the learned counsel for the petitioner are not of any help to the petitioner because in 1984 SCMR 593 (Supra) which has been already discussed above, the Honourable Supreme Court of Pakistan expressly held that Talaq would be effective only after the notice of Talaq is given to the Chairman concerned and prescribed period of three months has expired. However, the Shariat Appellate Bench of the Supreme Court of Pakistan in 1992 SCMR 1273, Allah Dad v. Mukhtar and another while considering the various provisions of Muslim Family Laws Ordinance, 1961 has held that divorce would become effective even in the absence of notice to the Chairman under section 7 of the abovesaid Ordinance and ineffectiveness of divorce in absence of a notice to the Chairman as envisaged by section 7 of Muslim Family Laws Ordinance, 1961 was against the Injunctions of Islam.
This shows that the matter has now been finally resolved and the provision of section 7 of the Muslim Family Laws Ordinance, 1961 which made the Talaq ineffective in the absence of notice to Chairman Arbitration Council is no more in the field as the same has been declared to be against the Injunctions of Islam. In the light of the law laid down by the Shariat Appellate Bench of the Supreme Court of Pakistan the Talaq in the present case was validly given by respondent No,2 on 9-6-1996 when the same was pronounced and the period of Iddat of three months expired on 9-9- 1996 and the Talaq became final on the said date and the withdrawal of Talaq by respondent No,2 on 21-10-1996 was inconsequential and ineffective.
8. In view of the above mentioned, this writ petition is accepted and respondent No,1, the Chairman Arbitration Council Halqa No,98, Metropolitan Corporation Lahore is directed to issue necessary Talaq Certificate to the petitioner. However, the parties are left to bear their own costs.