2005 PLP 481 (CLC)

The petitioner and respondent No. 1 were married on 25‑12‑1993 within the jurisdiction of U.C. 37, Muslimabad, Shalimar Town, Lahore. The Nakahnama was duly registered. Later the petitioner and respondent No. 1 took up residence in London; U.K. The petitioner who claims to be a Pakistani National issued a notice of divorce on 18‑8‑2003 and sent the copy of the said notice of divorce to the respondent No. 1 and to respondent No.2 for action as prescribed under 'Muslim Family Laws Ordinance, 1961 and rules prescribed thereunder. It has not been disputed by the learned counsel appearing for respondent No. 1 that the said notice was in fact received by respondent No.

1. Respondent No. 2 also received a notice of divorce. On 2‑12‑2003 as per the record of proceedings maintained by respondent No.2, the petitioner was represented before respondent No.2 by Mian Iqbal Hussain father of the petitioner while respondent No. 1 was represented by her brother. It was contended on behalf of respondent No. 1 that she (Mst. Tanveer Batool) was a British National while it was alleged that the petitioner himself was a citizen of Zimbabwe.

2. Respondent No.2 coming to the conclusion that Mst. Tanveer Batool was not residing within his territorial jurisdiction but is a permanent resident of U.K., declined to take any further action upon the notice of divorce for lack of territorial jurisdiction.

3. The petitioner has, through the instant writ petition challenged this act of respondent No.2 as contained in his order, dated 8‑12‑2003.

4. The learned counsel for the petitioner contends that the provisions of Muslim Family Laws Ordinance, 1961 as well as the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961 are fully applicable to the parties and respondent No.2 has the necessary jurisdiction to proceed with the notice of divorce to its logical conclusion. The learned counsel for the petitioner has relied upon section 1(2) of the Muslim Family Laws Ordinance, 1961 to submit that the said Ordinance extends to the whole of Pakistan and applies to all Muslim Citizens of Pakistan wherever they may be. He points out that admittedly both the petitioner and respondent No. 1 are Muslims by faith and shall be governed in matters of marriage, divorce and ancillary matters in accordance with Muslim Personal. Law. It is contended that phraseology that Ordinance "applies to all Muslim Citizens of Pakistan wherever they may be" is of wide connotation and notwithstanding that Muslim Citizens of Pakistan have adopted other places of residence whether within or without Pakistan, they shall continue to be governed by the provisions of the Islamic Law and the provisions of regulatory statutes such as the Ordinance of 1961 and the rules framed thereunder. It is further emphasized that there is nothing on the record to indicate that either the petitioner or respondent No.1 has relinquished his or her Pakistan Nationality or citizenship. According to him the mere acquisition of another nationality would' not ipso facto infer the relinquishment of the Pakistani Nationality. 5‑ The learned counsel for the petitioner has further placed reliance upon Rule 3‑A of the Rules of 1961 to submit that even where the Chairman of the concerned U.C. cannot ascertain the whereabouts of the wife, the notice of divorce is permissible to be served upon the wife through her father, mother adult brother etc. He further submits that in case the whereabouts of any such relatives of the wife are also not known publication in a newspaper shall be a sufficient service of notice of divorce.

6. Continuing in this vein he submits that Rule 3(b) (ibid) only relates to the situation where the wife is actually residing within the territorial limits of a particular union council and has no applicability to situations such as one in hand. It is further submitted that conduct of the parties before respondent No.2 was such which made reconciliation impossible and that it was incumbent upon respondent No.2 to have issued the certificate of divorce. The learned counsel for the petitioner has relied upon the case of Muhammad Salah‑ud‑Din Khan v. Muhammad Nazeer Siddiqi 1984 SCMR 583 to contend that if the divorce is pronounced in accordance with the Islamic Law and the notice in respect thereof is sent to the Chairman, Union Council concerned, the divorce shall become effective after the expiry of 90 days from the receipt of the notice by the Chairman, Union Council. He has also placed reliance upon the case of Muhammad Asad v. Mst. Hamira Naz 2000 CLC 1725 to submit that where the Muslim divorce fulfils the requirement of the Injunctions of Islam, it is complete by itself and that the notice of divorce to the Chairman, Union Council is merely operative as a proof thereof as in the absence of the notice, it can be inferred that Talaq pronounced by a Muslim husband has been deemingly revoked. Reliance is further placed upon Ahmed Nadeem v. Chairman, Arbitration Council 1991 MLD 1187 to urge that no particular form of notice has been prescribed by law and that any intelligible mode can be adopted by a Muslim husband as long as it unequivocally expresses the intention of divorce.

7. On the other hand, the learned counsel appearing for respondents Nos. 1 and 2 intend to rely on section 1(2) of the Ordinance, of 1961 and emphasised that the Ordinance only applied to the Muslim citizen of Pakistan and as both the petitioner and respondent No. 1 have acquired Foreign Nationalities, the Muslim Family Laws Ordinance, 1961 shall not apply in their case. Rule 3(b) of Rules, 1961 have also been stressed to urge that it is only the Union Council where the wife in relation to whom divorce has been pronounced was residing at the time of pronouncement of divorce which would have jurisdiction to proceed in the matter. The learned counsel for respondents Nos. 1 and 2 have placed reliance upon Mst. Saboohi Sarfraz v. Chairman, Arbitration Council 1999 MLD 1115 to submit that any Muslim who has ceased to be citizen of Pakistan could not invoke the provisions of Muslim Law including provisions regarding effectiveness of Talaq under the Ordinance. Reliance has been made to the same effect upon Saima Rasheed v. Imran Riaz 1993 CLC 1331 and Amira Bokhari v. Jamil‑ud‑Din PLD 1994 Lah. 236.

8. Arguments have been heard and record perused.

9. As the matter has been dealt with in detail and arguments have been copiously addressed by the learned counsel for both the parties, this writ petition is being decided as a regularly admitted pacca case.

10. Several facts stand established on the record, it is not denied that at the time of their marriage both petitioner and respondent No. 1 enjoyed the status of being Muslim citizens of Pakistan. The marriage was admittedly solemnized within the jurisdiction of respondent No.2 where the Nikahnama was also registered. It appears from the record that some times thereafter, the petitioner and respondent No.1 adopted permanent residence of the United Kingdom. It is also not specifically denied that at some point of time the petitioner acquired the citizenship of Zimbabwe while respondent No.1 may have acquired the British Nationality. That both the petitioner and respondent No.1 were residing in U.K. at the time of pronouncement of divorce is also not disputed. It is also on the record that notice of divorce was communicated to respondent No.2 by a brother of respondent No.1 while the petitioner was represented before the Chairman, U.C. by his attorney and father. The petitioner has also placed on the record a letter written by respondent No.1, wherein, the receipt of the notice of divorce is acknowledged.

11. From the above narrative, it is firmly established that notice of divorce has been duly communicated by the petitioner both to respondent No. 1 and to respondent No. 2 for further proceedings.

12. There is, however, nothing on the record nor it has been urged by the learned counsel for the parties that either the petitioner or respondent No. 1 have ceased to be citizen of Pakistan and if so in what circumstances and through what process. In the absence of such express relinquishment of Pakistan Citizenship both the petitioner and respondent No. 1 would continue to fall within the ambit of section 1 subsection (2) of the Muslim Family Laws Ordinance, 1961. This being so all the provisions of the said Ordinance shall be applicable to the parties as the condition that Ordinance applies to all the Muslim citizens of Pakistan wherever they may be shall be attracted to the circumstances of this case.

13. The submission made upon the basis of rule 3(b) by the learned counsel for respondents when placed in juxtaposition with the provisions of Rule 3(A) leads to the inescapable conclusion that Rule 3(b) only relates to a specific situation where the wife to whom divorce has been pronounced was actually residing within the territorial jurisdiction of one or the other Union Councils. It is in this context alone that it has been prescribed that a Union Council where the wife was residing at the time of pronouncement of Talaq shall have exclusive jurisdiction. This provisions is not exhaustive. An exception to the same has been expressly provided in Rule 3‑A which provides for a situation where the whereabouts of the wife or her relatives is not known at all. The service of notice‑of divorce can be effected through proclamation in the press.

14. For a parity of reasons, it is held that both the Ordinance of 1961 as well as the Rules framed have extra territorial applicability and apply to all Muslim Citizens of Pakistan wherever they may be.

15. The rule of construction which the learned counsel for the respondents wants to be placed upon Rule 3(b) of the Rules of 1961 would lead to very serious, nay absurd consequences. It would imply that despite the pronouncement of divorce by a Muslim husband, the wife would continue to remain clothed with the status of his wife for simple reason that spouses were presently residing in a Foreign Country beyond the jurisdiction of respondent No.2 the construction would defeat the Injunctions of Islam and would lead to anomalous results. Indeed such an interpretation must be avoided. The learned counsel for respondents have also not been able to satisfy this Court with regard to the contention that the petitioner and/or respondent No.1 had forsaken his or her Pakistani. In Attorney‑General v. C.H. Cooti (1817) 4 price 183 it has been laid down "it is no uncommon thing for a gentleman to have two permanent residences at the same time in either of which he may establish his abode at any period and for any length of time". The concept of having more one permanent residences is not alien to law.

16. In this view of the matter, the writ petition is allowed and the impugned order dated 8‑12‑2003 passed by respondent No.2 is declared to be in the absence of lawful authority. Resultantly, the notice of divorce and the proceedings associated therewith shall be deemed to be pending before the respondent No.2 who shall proceed to decide the same in the light of the observations contained herein before in the shortest possible time. Parties to bear their own costs. M.H./M‑805/L Case remanded.