JUDGMENT MIAN NAZIR AKHTAR, J. - This Constitutional petition has been filed to challenge the legality of orders dated 2.1.1997 and 28.1.1997 passed by the Chairman Arbitration Council, respondent No. 1 and the 1 Secretary, Union Committee, respondent No. 2 respectively.
2. Briefly stated the facts giving rise to the petition are that the petitioner contracted marriage with Mst. Saira Amir, respondent No. 3 on 16.12.1994 and out of their wedlock a female child was born.
After sometime the relations between the spouses became strained whereupon the petitioner (as per his claim) divorced respondent No. 3 on 31.10.1996 and sent intimation to her as well as the Chairman, Arbitration Council, Ward No. 83, respondent No. 1. Subsequently, he repeated the divorce notice in the months of November and December, 1996. Copies of the divorce deeds have been placed on the record as Annexes "B, B/l and B/2". The acknowledgement receipt of one notice bears the signatures of respondent No. 3. The same has been placed on the record as Annex 'C'. It appears that after receipt of the notice, the Chairman fixed a few dates for the petitioner's appearance but he remained absent. However, Mst. Saira Amir, respondent No. 3 appeared before the Chairman and claimed that she was never divorced by her husband and that she. Did not receive any Talaqnama from him. Due to non-appearance of the petitioner, the Chairman held that it could not be verified whether the petitioner had really divorced his were. Hence, he declared the case to be infructuous for non-prosecution and lack of interest on the part of the petitioner vide his order dated 2.1.1997. The subsequent proceedings show that the parties had a meeting in the office of the Secretary Union Committee, respondent No. 2. After about half an hour, the petitioner submitted a written application (Annex 'E') stating therein that no reconciliation could be made with his were.
3. The petitioner's learned counsel strenuously urged that the petitioner had lawfully divorced his were and respondent No. 1 had no option to declare the divorce ineffective after the expiry of 90 days from the date of receipt of notice of Talaq; that respondent No. 1 did not issue any notice to the petitioner and collusively passed the impugned order dated 2.1.1997; that the acknowledgement receipt Annex 'C' clearly shows that the notice was sent on the correct address of respondent No. 3 and was' received by her; that the marital bond had come to an end with pronouncement of three Talaqs by the petitioner on 23.8.1996 and subsequent notices were sent out of abundant caution; that it was not open to the Chairman or the Secretary Union Committee to declare that Talaq was not effective. On the other had, the learned AAG urged that after sending notice of Talaq to the Chairman, it is not essential for the husband to appear before him; that the Chairman is bound to issue certificate of effectiveness of Talaq even if the Arbitration Council is not constituted. In this connection, he relies on the judgment reported as 1973 DLR 227; that even if notice of Talaq is not sent to the were it does not affect validity of Talaq; that in such an eventuality penalty provided u/S. 7 (2) of the Muslim Family Laws Ordinance can be awarded to the husband.
In support of his contention he relies on the judgments in the following cases:-
(i) Mrs. Parveen Chaudhry Vs. With Senior Civil Judge It Class, Karachi and another (PLD 1976 Karachi 416).
(ii) Akhtar Hussain Vs. Collector, Lahore, etc. (PLD 1977 Lahore 1173).
(i.e) M. Zikria Khan Vs. Aftab Ali Khan and another (PLD 1985 Lahore 319).
4. The learned counsel for respondent No. 3 submits that after receipt of notice of Talaq allegedly sent by the petitioner, the Chairman sent notices to the petitioner for 21.11.1996, 12.12.1996, 26.12.1996 and 2.1.1997 but he did not appear whereupon the case was declared to have become infructuous; that the impugned order dated 2.1.1997 does not say that the Talaq pronounced by the petitioner is ineffective; that respondent No. 3 had filed an application on 24.12.1996 before the same Arbitration Council for grant of maintenance which was allowed vide order dated 16.12.1997 and she was granted maintenance allowance at the rate of Rs. 10,000/- per month since August, 1995; that the said order was challenged by the petitioner before the Collector who reduced the amount to Rs.
7,000/- per month vide his order dated 27.6.1998; that against the above- referred two orders the petitioner filed Writ Petition No. 14646/98 which is pending in this Court and that the story of divorce has been concocted to avoid the liability of maintenance allowance.
5. The petition was admitted for regular hearing on 16.5.1997 and notices were issued to the respondents. Respondent No. 3 entered appearance through her counsel on 22.12.1997. The case was adjourned on a number of dates for one reason or the other and finally arguments were heard on 31.3.1999 and 1.4.1999. The learned counsel for respondent No. 3 had filed his power-of-attorney in this Court on 22.12.1997 but did not i.e any written statement although he had sufficient opportunity to do so before the hearing of the petition. Therefore, the facts stated in the writ petition have remained uncontroverted and can be presumed to be correct. The petitioner has categorically stated in para 2 of the writ petition that he was constrained to divorce respondent No. 3 and sent a registered notice to her on a stamp paper with acknowledgement due on 31.10.1996 and thereafter send two other divorce deeds on 17.11.1996 and 23.12.1996. He added that copy of the divorce deed sent to respondent No. 1 was also received by him. The divorce deed dated 23.8.1996 shows that the petitioner had pronounced Talaq three times. With the pronouncement of Talaq thrice the marital bond came to an end under the Islamic Law/Fiqa Hanfia. The subsequent notices again mentioned Talaq-e-Salasa. The petitioner's learned counsel submits that the subsequent notices were sent out of abundant caution because it was apprehended that pronouncement of Talaq might be treated as one pronouncement. The petitioner has throughout maintained that he had divorced his were three times and repeated the same after every month and broke the marital tie irrevocably. According to him, the Chairman had no option but to grant Certificate of effectiveness of Talaq after the expiry of 90 days from the date of receipt of intimation about Talaq.
There is no cavil with this preposition of law but it is emphasized that after sending intimation to the Chairman regarding pronouncement of Talaq a husband ought to appear before the Chairman to verify that he had really pronounced Talaq and sent notices to the Chairman. If the husband does not appear before the Chairman it can give rise to an inference that presumably he had not sent a notice of Talaq and in that case the Chairman can consign the matter to record. However, if once the husband appears and verifies that he has sent the notice of Talaq and thereafter does not appear or nominate his representative for constituting the Arbitration Council it would simply mean that he was not interested in reconciliation and the Chairman would issue certificate of effectiveness of Talaq after the expiry of 90 days. In the present case, initially the petitioner did not appear before the Chairman on 21.11.1996, 12.12.1996, 26.12.1996 and 2.1.1997, therefore, the Chairman had no option but to consign the case to record. However, subsequently the parties appeared before the Secretary Arbitration Council on 28.1.1997 as would be evident from the proceedings of the said date embodied in Annex 'F'. It is mentioned therein that both the parties, i.e. The petitioner and respondent No. 3 had a meeting in the office of Sectary Union Committee; that they were given time tor reconciliation but after about half an hour the petitioner submitted a written application that he could not have reconciliation with respondent No. 3. This would fairly show that so far as the petitioner is concerned, he remained consistent that he had pronounced divorce and freed respondent No. 3 from the marital tie. The Secretary Union Committee had merely recorded certain proceedings and did not pass any order, therefore, the proceedings dated 28.1.1997 cannot be set aside. It may be mentioned that so far as the proceedings on the notice of Talaq are concerned, the same were consigned to record vide order dated 2.1.1997. Therefore, the proceedings dated 28.1.1997 embodied in Annex 'F' might be relatable to the maintenance matter which was initiated by respondent No. 3 through a written application dated 24.12.1996. There is force in the argument raised by the learned AAG that even if notice of Talaq is not sent to the were, it does not affect its validity and that in such an eventuality the penalty provided u/S. 7 (2) of the Ordinance can result.
This view finds support from the cases of Mrs. Parveen Chaudhry, Akhtar Hussain and M. Zikria Khan (relied upon by the learned AAG), In the case of "Allah Dad Vs. Mukhtar and another" (1992 SCMR 1273), the Hon'ble Supreme Court of Pakistan was pleased to hold that the failure on the part of the husband to send a notice of Talaq to the Chairman does not render the divorce ineffective in Sharia. This view was reiterated by the Supreme Court in the case of "Mst. Zahida Shaheen and another Mir. The State and another" (1994 SCMR 2098). In the case of "Mst. Kameez Fatima Vs. Wali Muhammad and another" (PLD 1993 S.C. 901) it was held as under:- "The provisions of Section 7 of the Ordinance have remained controversial from the very beginning and there are conflicting views in general about it. In view of the Constitutional restraints the Courts cannot give any verdict on the conflicting claims challenging or justifying the provisions of Section 7 of the Ordinance. However,> keeping in view the facts of each case the applicability and interpretation of Section 7 has to be construed in that light. In a case where with the consent of both the parties divorce is effected and confirmed in writing under their undisputed signatures Section 7 should not be strictly construed particularly in cases where penal provision of Section 7
(2) is to be enforced because in such cases the parties do not wilfully commit breach and bona i.e believe that they have been divorced with the consent of each other and sending of notice to the Chairman, Union Council, is merely a formality. The notice can be sent at any time thereafter to comply with the provisions of Section 7. -Where such view has been taken but its validity has been challenged, the Court would be justified to refuse to issue writ and exercise its jurisdiction."
In the present case since the facts stated by the petitioner have not been controverted it can be safely held that the petitioner had pronounced Talaq thrice and put an end to the marital tie under the Islamic Sharia; that he had sent notices to the Chairman and did not appear before him as he did not want reconciliation with his were after pronouncement of Talaq thrice; that he had substantially complied with the provisions of Section 7 of the Ordinance and that the Chairman Arbitration Council ought to have issued certificate of effectiveness of Talaq. So far as respondent No. 3 is concerned, she had received notice of Talaq on 31.10.1996 as is evident from the acknowledgement receipt Annex 'C'. Respondent No. 3 has not denied her signatures on the said document by filing a written statement, therefore, it does not lie in her mouth to say that the petitioner had not complied with the provisions of Section 7 of the Ordinance.
6. For the foregoing discussion, the petition is accepted, the impugned order dated 2.1.1997 is declared to be without lawful authority and of no legal effect and respondent No. 1 is directed to issue certificate of effectiveness of Talaq to the petitioner, in accordance with the law. The parties are left to bear their on costs.