1984 PLP 879 (CLC)

‑‑ S. 7‑Talaq‑Notice‑Once execution of divorce deed proved talaq, held, became effective after expiry of ninety days even if notice not served upon Chairman concerned. Muhammad Rafique v. Ahmad Yar P L D 1982 Lab. 825 rel. This revision petition has arisen out of order, dated 2nd November, 1982 of the learned Additional District Judge,' Lahore whereby he set, aside the order, dated 17th April, 1982 of the learned Civil Judge, Lahore by means of which he allowed the application of the present petitioners for the issuance of succession certificate in their favour.

2. The relevant facts leading to this petition are that Mst. Tabira Siddiqui was married to Muhammad Salah‑ud‑Din Khan respondent on 11th November, 1973. He divorced her vide divorce deed, dated 30th March, 1975. Subsequently she died on 17th October,' 1975. The petitioners claiming themselves to be the heirs of the deceased filed application for obtaining succession certificate regarding the estate left by the deceased. The respondent moved an application for impleading him as one of her heirs and pleaded that she was his legally‑wedded wife till the date of her death. The learned trial Court framed following issues :‑ (1) Whether respondent M. Salabuddin had ,,divorced the deceased ? (2) What are the rights of the parties ? (3) What are the assets left by the deceased ? (4) Relief. On the basis of the evidence led by the parties the learned Civil Judge held that Salah‑ud‑Din respondent has divorced the deceased. The learned Additional District Judge, however, in appeal reversed the decision of the learned trial Court holding that even if the execution of divorce deed (Exh. P/1) was proved, notice as envisaged under section 7 of the Muslim Family Laws Ordinance, 1961 had not been sent to the Chairman as such the divorce remained ineffective. The petitioners assailed the aforesaid order the leatned . Additional District Judge by means of the instant revision petition.

3. Learned counsel for the petitioners stated that the divorce deed executed by the respondent having been proved to be duly executed by the respondent the divorce became effective after the expiry of ninety days from the date of the, pronouncement of Talaq viz. 30th March, 1975. It was submitted that the respondent never pleaded that he did not give notice to the Chairman and even if no notice was given to the Chairman it was violation of subsection (i) of section 7 of the aforesaid Ordinance for which penalty was provided under the law against the respondent, and it would not render the divorce to be ineffective. In support of his contention he relied on Muhammad Rafrque v. Ahmad Yar (P L D 1982 Lah. 825).

4. Learned counsel for the respondent, on the other hand, stated that in case the pronouncement of Talaq wits not proved, therefore, the divorce remained ineffective for want of notice from the date of pronouncement of divorce.

5. I have considered the contentions raised by learned counsel for the parties and I am of the view that the learned trial Court after taking into consideration the divorce deed (Exh. P/1) and comparing signatures of the respondent on the admitted document like general power‑of‑attorney executed by him came to the conclusion that the respondent had executed the divorce deed. Once execution of the divorce deed has been proved Talaq became effective after the expiry of ninety days even if the notice under section 7 of the Muslim Family Laws Ordinance VIII of 1961 was not served upon the Chairman concerned. This view finds support from the law laid down in Rafiq's case cited by the learned counsel for the petitioners. The learned Additional District Judge committed material illegality in holding that notice under section 7 of the aforesaid Ordinance was prerequisite for the divorce to become effective.

6. In the result this petition is allowed. The impugned judgment of the learned Additional District Judge, Lahore is set aside and that of the learned trial Court restored with costs. M. Y. H. Petition allowed_