Brief facts out of which the present writ petition arises are that the petitioner and respondent solemnised marriage between themselves on 27-12-1996. Relationship of petitioner and respondent No. l became strained, on the intervention of the relations petitioner executed an affidavit on 7-5-1997. The contents of the affidavit reveal that petitioner demanded Talaq.
Respondent No. l also executed divorce deed on 8-5-1997. Respondent No. l sent notice to the petitioner under section 7 of the Muslim Family Laws Ordinance through Chairman Arbitration Council. Respondent No. l before expiry of 90 days submitted an application before respondent No.2 on 17-9-1997 for withdrawal of the notice, dated 31-7-1997. Arb1tration Council accepted the application of, withdrawal of notice on 21-1-1998. Learned counsel for the petitioner contended that respondent No. l could not withdraw the notice of Talaq in violation of the settlement arrived between the petitioner and respondent No. 1. He further stated that Talaq is effected before the filing of application, dated 17-9-1997 to withdraw the notice as respondent No. l executed divorce deed on 8-5-1997. He further stated that Talaq is effective even without notice sent by respondent under section 7 of the Muslim Family Laws Ordinance, 1961. The provisions of section 7 of Muslim Family Laws Ordinance, 1961 was declared against the Injunctions of Islam by the Federal Shariat Court in Muhammad Sarwar's case PLD 1988 Federal Shariat Court 42. Judgment of the Federal Shariat Court is approved by the Shariat Appellate Bench of Supreme Court of Pakistan in Allah Ditta's case 1992 SCMR 1273. He also relied upon Rehmat Ara's case 1998 MLD 486. He further urged that deed of Talaq was executed on account of the settlement on 8-5-1997. Respondent No. l has no authority whatsoever to withdraw the notice sent by him on 31-7-1997. He relied upon 1997 CLC 1985. Dr. Iftikhar Ahmad's case. He summed up his arguments that the Talaq has already been effected before filing the application of withdrawal of the notice. Therefore, order of respondent No.2, dated 21-1-1998 is without lawful authority.
2. Learned counsel for the respondent stated that contentions of the 'learned counsel for the petitioner have no force as the law laid down by the Honourable Supreme Court in Mst. Kaniz Fatima's case PLD 1993 SC 901 wherein it has been observed that the jurisdiction of the Federal Shariat Court and Appellate Bench of the Supreme Court does not extend to the Constitution and the Family Laws. He further stated that respondent No.1 has filed a suit for declaration that the Talaq has allegedly executed by the respondent No. 1, dated 8-5-1997 is the out come of force, undue influence fraud, misrepresentation and coercion and does not in any manner effect the matrimonial life between the parties. He further stated that divorce between the parties without recourse of section 7 of the Muslim Family Laws Ordinance, 1996 is without lawful authority. He relied upon PLD 1989 Lahore 490.
3. I have given my anxious consideration to the contention of the learned counsel for the parties. It is better and appropriate to reproduce the admitted facts between the parties in chronological order which are as follows:--
(i) Divorce deed, dated 8-5-1997.
(ii) 31-7-1997 Notice under section 7 of Muslim Family Laws Ordinance by respondent No. 1, to the petitioner through respondent No.2.
(iii) 17-9-1997 application to withdraw notice, dated 31-7-1997.
(iv) 21-1-199.8 order of the Arbitration Council.
Decision of the Arbitration Council reveals that respondent No. l submitted the aforesaid application, dated 17-9-1997 to withdraw the notice, dated 31-7-1997 whereas the petitioner stated that she got the divorce on the basis of Khula'. It is admitted fact that respondent No. l has challenged the divorce deed, dated 8-5-1997 before the competent Court and the next date of hearing is 22-5-1999. It is settled proposition of law that Court can take notice of the subsequent events at the matter is pending adjudication before the competent Court for adjudication qua the divorce deed dated 8-5-1997 that the same has been obtained from respondent No. l by force, undue influence, fraud, misrepresentation and coercion. Therefore, the question as to whether the Talaq was revocable or irrevocable or that the same was with mutual consent and accepted by the parties as claimed by the petitioner will be determined by the Court where the suit is pending for adjudication. Petitioner is well within his right to rebut the same by filing written statement in the said suit or to file independent suit. Even otherwise the nature of controversy between the parties to the petition by itself for factual controversies which cannot be resolved in Constitutional jurisdiction of the High Court. I am fortified by the Supreme Court judgment 1993 SCMR 618.
4. In view of what has been discussed above, I am not inclined to give my opinion qua the contention of the learned counsel for the parties so that the cases of the either party shall not be prejudiced. The same is dismissed with the aforesaid terms.