The petitioner through this Constitutional petition has assailed the order dated 16-10-2000 passed by respondent No,
1. Chairman Union Council/Administrator Union Committee, Ward No,4, Lahore Cantt. Lahore whereby he had declined to issue certificate of Talaq to the petitioner on the ground that since respondent No,2, Syed Muhammad Raza, husband of the petitioner had filed an application for withdrawals of notice of Talaq within a period of 90 days of the receipt of notice, therefore, the divorce had been rendered ineffective.
2. Learned counsel for the petitioner has argued that Talaq had not been given unilaterally by respondent No,2, rather it was in the form of `Mubaraar where the Talaq had been given .By respondent No,2 at the request of the petitioner, and therefore, it could not be unilaterally withdrawn by respondent No,2 nor were the provisions of section 7 of the Muslim Family Laws Ordinance, 1961 (MFLO) attracted to the case since this form of Talaq is covered by section 8 of MFLO. Further argued that respondent No,1 has disallowed the certificate on legal advice and had not given any details of legal advice so obtained and respondent No,2 being a Sunni while petitioner was a Shia, Talaq in the form of `Mubaraar could not be revoked by respondent No,2.
Further argued that the divorce deed, which was duly signed and was accompanied with an agreement dated 19-7-2000 was placed before respondent No,l. In this agreement the respondent No,2 has specifically stated that he had divorced the petitioner at her request and on account of her hatred for him. He (respondent No,2) and his wife (present petitioner) had appointed Maulana Muhammad Shafi Najfi as their Vakeel to issue Khula' decree, which he had issued in the presence of the witnesses. That this agreement was duly signed by both the spouces and the witnesses, who were present at the .Time of execution and that subsequently Maulana Muhammad Shafi Najfi signed the document of Talaq as well as the agreement and pronounced the Talaq by writing the words(URDU TEXT)which rendered the Talaq effective. Further that respondent No,2 had given a copy of his Identity Card on which he had written the words for 'divorce purposes only' which was appended with the application dated 26-7-2000 filed before respondent No,1 wherein he had been requested to declare the Talaq effective. In this application both the parties acknowledged that the Talaq had been entered into with mutual consent and that there was no room for reconciliation, and therefore, Talaq should be declared effective on completion of Iddat' period and a certificate be issued to the effect. Thereafter, respondent No,2 had no authority to withdraw the divorce deed nor was the respondent No,1 authorised to return the divorce deed or to decline issuance of certificate of effectiveness of Talaq to the petitioner, therefore, the impugned order dated 16-10- 2000 should be declared without lawful authority. In support of his arguments the learned counsel has placed reliance upon the following citations:--
(1) Muhammad Nawaz v. Mst. Faiz Elahi (PLD 1978 Lah. 328).
(2) Princes Aiysha Yasmeen Abbasi v. Maqbool Hussain Qureshi (PLD 1979 Lah. 241).
(3) Muhammad Shahbaz Ahmad v. Sher Muhammad (1987 CLC 1496).
(4) Abdul Rashid v. S.H.O. Police Station Sadar Rehnala (1995 PCr.LJ 1247.
3. On the other hand, learned counsel for the respondent No,2 has vehemently opposed the petition on the grounds, inter alia, that the petitioner had filed civil revision against the order of respondent No,1 which had been dismissed as being not maintainable on 9-12-2000; and that since the parties belong to Fiqah Jaffaria, the Talaq is revocable within 90 days, which is so stated in Vol.1, translated by Moulana Syed Safdar Hussain Najfi, at page 431 of aforesaid treatise reliance has been placed on surah Baqara verse 228 in which divorced women had been asked to wait for three 'Tuhrs' and during the period if their husbands reconcile with them they are entitled to divorce. On these grounds learned counsel for respondent has urged that respondent No,2 was entitled to revoke the Talaq and order of respondent No,1 suffers from no infirmity.
4. Respondent No,1 was also represented and learned counsel first of all took the objection to the arguments of the parties regarding belonging to different sects on the ground that MFLO is applicable to all Muslims and it does not distinguish between different sects of Islam. He further argued that under section 7 of MFLO the notice to respondent No,1 is mandatory and under subsection (3) a Talaq can be revoked within 90 days and would become effective only if it had not been revoked within that period.
5. I have heard the learned counsel for the parties and I have also gone through the record as well as judgments and authorities cited by both the parties. From the record I find that respondent No 2 had executed the documents of triple divorce in favour of site petitioner at her own request on 9-7- 2000, which was duly signed by respondent No,2 and attested by the witnesses. Thereafter, both the parties had appointed Moulana Muhammad Shafi Najfi as their Vakeel to issue a decree of Talaq. It was also signed by both the parties and attested by witnesses on which Moulana Muhammad Shafi Najfi had entered the words(URDU TEXT)and had signed the same thereof.
Thereafter, on 10-7-2000 an application was moved by the petitioner before respondent No,1 for issuance of certificated regarding effectiveness of Talaq. This was followed by an application signed by both the parties dated 7-8-2000 to the effect that the parties have entered into divorce by mutual consent and since there is no room for reconciliation, therefore, the Talaq should be declared as effective and the certificate should be issued in this behalf. Respondent No,2 had also appointed his father to appear as his representative before respondent No,1 Thereafter, respondent No,2 filed an application before respondent No,1 on 4-9-2000 requesting that the Talaqnama he had filed before respondent No, I should be retruned to him since he was entitled to, withdraw the same during the period of 'Iddat'. On the basis of this application, respondnet No,1 vide impugned order dated 16-10-2000 declared the Talaq ineffective with the observation that the petitioner may file a suit for dissolution of marriage if she seeks Talaq. All these documents have been certified by the office of respondent No,1 and have been produced from his record.
6. It is obvious from the document of Talaq that it is not a unilateral pronouncement, rather it is a Talaq in the form of Mubaraat' i,e, which has been entered into by the consent of both the parties..
In this case it is a mutual revocation of the contract entered into at the time of Nikah and since both the parties have mutually revoked the contract, one party cannot unileterally revive the contract without the consent of the other. Under section 62 of the Contract Act if a party to a contract agreed to substitute a new contract for it, or to rescind or alter it, the original contract need not to be performed. Therefore, the Nikah also being a contract and both the parties having agreed to rescind from it, the contract need not to be performed and one party cannot unilaterally revoke the rescission. The case-law relied upon by the learned counsel for the petitioner is fully applicable to the present controversy wherein it was held that a Talaq in the form of 'Mubaraat' which is from in which the present Talaq was executed is irrevocable from the date of its execution and the provisions of section 7 of MFLO would be inapplicable to such a case. It has been further held that if the party to Talaq applies for a certificate from the Chairman regarding the effectiveness of Talaq, he would have no option in such case but to declare the Talaq as effective.
It has been further held that an application for cancellation or revocation to the Chairman and issuance of cancellation certificate was not competent and was held to be without lawful authority.
7. As far reliance placed by learned counsel for respondent No,2 on the verse 228 of Surah Baqara, as cited in this Verse is preceded by Varses 226 and 227 which refers to unlateral divorce by the husband. Learned counsel has not adverted to Verses 229 and 230 which are re-produced hereunder for ready reference;--- "229 Divorce mutually pronounced twice and then in kindness. And it is not lawful for you that ye take from women aught of that which ye have given them; except (in the case) when both fear that they may not be able to keep within the limits (imposed by) Allah. And if ye fear that they may not be able to keep the limits of Allah, in that case it is no sin for either of them if the woman ransom herself. These are the limits (imposed by) Allah. Transgress them not. For whose transgresseth Allah's limits such are wrongdoers."
"230 "And if he hath divorced her (the third time), then she is not lawful up to him thereafter until she hath wedded another husband.-Then if he (the other husband) divorces her it is no sin for both of them that they come together again if they consider that they are able to observe the limits of Allah. These are the limits of Allah. He manifest them for people who have knowledge."
(Translation cited;)
(The meaning of the Glorious Qur'an) (by Muhammad Marmaduke Pickthall) (Underlining mine.)
It is clear from the translation of verse 230 that once triple divorce has been pronounced, the Talaq becomes irrevocable. In such circumstances respondent No,2 could not have revoked the notice of triple Talaq since (a) it was not an unilateral (b) Talaq it was irrevocable Talaq in terms of verse 230 of Holy Qur'an. Reference can also be made with advantage to section 319 of Principles of Muhammadan Law by D.F. Mullah. In subsection (3), it has been clearly stipulated that the offer in a 'Mubaraat' divorce may proceed from the wife, or it may proceed from the husband, but once it is accepted the dissolution is complete.
8. In view of the above discussion, this petition is accepted and the impugned order dated 16-10- 2000 whereby respondent No,1 declined to issue certificate of Talaq to the petitioner is declared to be without lawful authority and of no legal effect. The Talaq between the parties having been issued by mutual consent in the form of 'Mubaraat' is irrevocable and is declared to have attained finality. Respondent No,1 shall issue certificate to this effect.