2014 PLP 813 (CLC)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Facts necessitating for filing of instant Constitutional petition are that the petitioner was married with respondent No.4 on 24-3-1995 and out of the wedlock no issue was born. The relationship between the parties became strained and on 18-3-2013 respondent No.4 pronounced Talaq-e-Salasa to the petitioner in the presence of witnesses and also sent a notice to the Chairman Arbitration Council, U.C. No.120, Ali Raza Abad, Lahore. On 20-6-2013 respondent No.4 gave a notice of withdrawal of Talaq, which was duly contested by the petitioner stating that after expiry of ninety days it became irrevocable. In order to resolve the controversy the Administrator/Chairman referred the matter to respondent No.1 for legal opinion, who vide endorsement dated 10-7-2013 gave the following legal opinion:

"The revocation of Divorce is within the prescribed period of 90 days. The divorce would not be effected. The Union Council can stop the proceedings."

2. Being unhappy with the said legal opinion the petitioner has filed instant Constitutional petition.

3. Learned counsel for the petitioner submits that respondent No.4 pronounced Talaq on 18-3-2013 and it became effective after expiry of 90 days i.e. 17-6-2013; that legal opinion of respondent No.1 that revocation is within time is illegal; that period of Iddat of ninety 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; that respondent No.4 in order to harass the petitioner issued revocation notice after expiry of requisite period.

4. Conversely, learned counsel for respondent No.4 submits that although the divorce was pronounced on 18-3-2013 but its notice was served upon the Chairman Arbitration Council on 20-3-2013; that according to subsection (3), section 7 of the Muslim Family Laws Ordinance, 1961 period of Iddat of ninety days is to be counted from the date of notice to the Chairman Arbitration Council and not from the date of pronouncement of divorce; that opinion of respondent No.1 is in consonance with the relevant provisions of law and no occasion arises for this Court to intervene with the same in its Constitutional jurisdiction.

5. Arguments heard. Record perused.

6. The only question which requires determination in this petition is that whether Talaq becomes effective after expiration of ninety days from the date of pronouncement of Talaq or from the date of notice to the Chairman Arbitration Council. No doubt according to subsection (3) of section 7 of the Muslim Family Laws Ordinance, 1961 divorce shall not be effected until the expiration of ninety days from the date on which notice was delivered to the Chairman but the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan in case reported as Allah Dad v. Mukhtar and another (1992 SCMR 1273) has declared that "ineffectiveness of Talaq in the absence of a notice to the Chairman, as envisaged by section 7 of the Family Laws Ordinance, is against the injunctions of Islam." It was further laid down in the said judgment that:

"It is now evident that a notice of Talaq to the Chairman is not mandatory under the Injunctions of Islam and any divorce pronounced or written by a husband cannot be ineffective or invalid in Shariah merely because its notice has not been given to the Chairman, therefore, if a woman after obtaining a divorce from her husband and after the necessary period of `Iddat' contracts a marriage with a third person, their marriage cannot be held as invalid marriage, at least for the purpose of the Ordinance."

7. In the light of the aforesaid esteemed judgment of the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan, the issuance of notice of divorce to the Chairman as envisaged in section 7 ibid is not mandatory, therefore, the simple answer of the aforesaid formulated question would be that divorce would become effective after expiry of ninety days from the date of pronouncement of divorce and not from the date of issuance of notice to the Chairman Arbitration Council.

8. In the present case, admittedly, respondent No.4 pronounced Talaq to the petitioner on 18-3-2013, therefore, period of Iddat of ninety days expired on 17-6-2013 and Talaq was irrevocable on 20-6-2013 the date when notice for withdrawal of divorce was issued by respondent No.4.

9. For the reasons discussed above, this writ petition is allowed and consequently legal opinion of respondent No.1 dated 10-7-2013 is declared illegal and contrary to law. Respondent No.2/Chairman Arbitration Council, U.C. No.120, Ali Raza Abad, Lahore is directed to issue requisite divorce certificate to the petitioner forthwith. Parties shall bear their own costs. AG/N-60/L Petition allowed.