1987 PLP 1496 (CLC)

‑‑‑S. 491‑‑Muslim Family Laws Ordinance (VIII of 1961), S. 7(1)(8) Jurisdiction under S. 491, Cr.P.C., exercise of‑‑Detenue sui juris‑Exercising jurisdiction' under S. 491, Cr.P.C. the detenu was set at liberty by High Court and allowed to proceed wherever she wished. Muhammad Rafique v. Muhammad Ghafoor P L D 1972 S C 6 and Mst. Sahi Bi v . Khalid Hussain and 6 others 1973 S C !M R 577 rel. Arif Iqbal Hussain Bhatti for Petitioner. Ch. Asghar Ali for Respondent. Date of hearing: 15th April, 1987. This petition under section 491, Cr.P.C. has been moved by Shahbaz Ahmad petitioner against the respondent Sher Muhammad and Ghulam Muhammad for the recovery of Mst. Pathani, wife of the petitioner from the alleged illegal custody of the respondents. It was averred by the petitioner that Mst. Pathani detenue was his lawfully‑wedded wife and the marriage had taken place in accordance with the Muslim law on 6‑1‑1987. It was alleged that two weeks before the institution of the petition the respondents took away the wife of the petitioner Mst. Pathani on the pretext of meeting her mother. It was complained that instead of taking the detenue to her mother's house she was taken by the respondents to their own house in Chak No.679‑GB, Pir Mahal, Tehsil Kamalia, District Toba Tek Singh. The petitioner further alleged that he tried to meet his wife but he was turned out by the respondents from their house. The apprehension was expressed by the petitioner that Mst. Pathani's life was in danger and the petitioner was entitled to her custody.

2. On 25‑2‑1987 this Court directed the respondents to produce Mst. Pathani in this Court on 3‑3‑1987. On 3‑3‑1987 it was stated that Mst. Pathani detenue had lived in the house of respondent No.l for few days but thereafter she had returned to her parents' house who were residing in Chak No.2314/L in Tehsil Chichawatni. Suspecting foul game this Court directed the S.H.0, Police Station Shah Kot, Tehsil Chichawanti to recover and produce Mst. Pathani in this Court on 10‑3‑1987. On 10‑3‑1987 it came to light that Mst. Pathani detenue had on her own married Shahbaz petitioner. The detenue also appeared and admitted her marriage with the petitioner and she further expressed her desire to accompany her husband Shahbaz Ahmad. To ensure that the interest and future of Mst. Pathani detenue is not jeopardised, this Court summoned the father and brothers of the petitioner. Further, direction was issued that Mst. Pathani be lodged in Darul Aman. On 17‑3‑1987 the date fixed for the hearing of the case, the entire controversy took a new shape, inasmuch as, Ch. Asghar Ali, Advocate, appeared and contended that Mst. Pathani detenue was previously married to Bashir Ahmad who had not divorced her and, therefore, the alleged marriage of the detenue with the petitioner was illegal and the offence of bigamy and Zina has been committed. Ch. Asghar Ali, Advocate, placed on the record a certified copy of the proceedings before the Chairman of the Union Council for 2314/L, Tehsil Chichawatni which indicated that Bashir Ahmad had appeared before the Chairman and had stated that the notice of divorce sent by him was bogus and forged. It was contended that Bashir Ahmad had sent a notice of Talaq on which arbitration council was constituted but before the expiry of 90 days, Bashir Ahmad revoked the Talaq by staring that the notice was forged and fake and, therefore, in view of the said statement the proceedings before the Conciliation Court were filed.

3. It may be stated here that this Court also got an enquiry conducted into the affair through S.H.O. who also submitted in his report that the notice of divorce was not owned by Bashir Ahmad and, therefore, the proceedings had been filed.

4. To remove all doubts, this Court summoned the Chairman and Secretary of the Union Council alongwith the original record of the proceedings on the notice of divorce and after perusal of the same this Court examined Mst. Pathani detenue and Bashir Ahmad her previous husband in detail. The enquiry conducted and the examination of the case revealed the following facts:‑

5. That about two years before the institution of this petition Mst. Pathani was married to Bashir in Watta, inasmuch as, in lieu of the said marriage sister of Bashir Ahmad, Haleema was married to the brother of Mst. Pathani, namely, Riaz. It further came to light that Bashir Ahmad restrained Mst. Pathani to meet her parents becuse Bashir Ahmad apprehended danger to Mst. Pathani and himself from the hands of Kathia Jats, living in the village of the parents of Mst. Pathani. Such restraint led to a serious quarrel and it was decided to dissolve both the marriages which took place in Watta. Accordingly, Riaz brother of Mst. Pathani detenue divorced Haleema sister of Bashir and Bashirl divorced Mst. Pathani. The original divorce deed on the stamp paper of Rs.15 was produced in the Court marked Exh.P.A., in which through mutual agreement Bashir divorced Mst. Pathani on 12‑3‑1986 and this deed was got executed through a petition writer. Bashir Ahmad admitted execution of this divorce deed and his thumb‑impression thereon. Similarly, Riaz also executed divorce deed and the said divorce became absolute and final after the expiry of 90 days in he proceedings before the arbitration council constituted under the Muslim Family Law Ordinance, 1961.

6. Unlike Riaz, brother of Mst. Pathani, Bashir did not send any notice of divorce to the Chairman. Constrained by this circumstance Mst. Pathan obtained a photo copy of the extracts of the divorce deed from the register of the petition writer and annexing the same with an application moved the Chairman, Union Council for Chak No.2314/L Tehsil Chichawatni for seeking a declaration that divorce in her favour had become absolute. On the receipt of the said application notices were issued to the parties but Bashir Ahmad did not appear on number of occasions and finally he appeared on 19‑12‑1986 and stated that the notice of divorce was bogus and forged. In the light of the said statement the proceedings were filed. In the meanwhile; under the belief that she had been divorced through mutual agreement Mst. Pathani got married with Shahbaz which was resented to by the respondents and the parents of Mst. Pathani and accordingly she was removed from the custody of her husband which led to the institution of this petition.

7. Ch. Asghar Ali, Advocate has vehemently argued that since Bashir Ahmad had not owned the notice of divorce and had stated the same to be forged and bogus, therefore, Talaq had not become effective and the marriage between Mst. Pathani and Bashir is still in existence and, therefore, Bashir Ahmad is entitled to her custody. In support of his contention learned counsel has placed reliance upon a judgment of the Supreme Court reported as Ghulam Nabi v. Farukh Latif and 2 others 1986 S C M R 1350. The Supreme Court of Pakistan by placing reliance upon the case of Ali Nawaz Gardezi v. Muhammad Yousaf PLD 1963 S. C 52, Abdul Manan v. Safuran Nessa 1970 S C M R 845 and Muhamad Salahuddin Khan v. Muhammad Nazir Siddiqi and others 1984 S C M R 583, held that if a husband does not give such a notice of Talaq to the Chairman under section 7(1) of the Muslim Family Laws Ordinance, it would be deemed that he has revoked Talaq. Before proceeding further it will be necessary to examine two crucial questions, what is the nature of Talaq in the circumstances of the case and what is the nature of proceedings before the arbitration council constituted by the Chairman, Union Council, Chak No.2314/L Tehsil Chichawatni in proceedings whereof Bashir Ahmad had stated that the notice of divorce was bogus and forged. As far as the nature of Talaq in this case is concerned it was through a mutual agreement, in pursuance of which, Bashir Ahmad divorced Mst. Pathani and Riaz divorced Haleema, sister of Bashir. After anxious consideration I am of the view that the nature of Talaq in this case is based upon Mubarat and the case does not directly fall under section 7(i) of the Muslim Family Laws Ordinance but would fall under section 8 of the said Ordinance. I am fortified in this view by the judgment of this Court reported as Sayeeda Khanam v. Muhammad Sami P L D 1952 Lah.

113. In the said case a distinction between Khula and Mubarat was highlighted and it was held that where the desire for separation is mutual, there too dissolution by mutual agreement for a consideration to be paid by the wife to the husband is lawful but it is described in that case as Mubarat. The same view was expressed by. the Supreme Court of Pakistan in the case reported as Ghulam Sakina v. Umar Bakhsh P L D 1964 S C

456. It was held that in the case of Mubarat both sides i.e. husband and wife should desire separation and it was further held that a divorce through an agreement was Mubarat and not Khula. The same view was adopted by this Court in the case reported‑as Muhammad Nawaz v. Mst. Faiz Elahi P L D 1978 Lah.

328. It was held that under Mubarat the divorce becomes irrevocable. The distinction between Khula' and Mubarat and applicability of section 8 of the Muslim Family Laws Ordinance to the later case was highlighted. Yet another judgment in the light of the precedents cited above is illustrative. The said judgment was delivered by Mr. Justice Muhammad Afzal Zullah, J. reported as Princess Aiysha Yasmien Abbasi v. Maqbool Hussain Qureshi and 2 others P L D 1979 Lah.

241. It was held in the said case that Talaq through mutual agreement amounted to Mubarat and was irrevocable. In the light of the judgments cited above it is thus, obvious that through mutual agreement both the marriages which have taken place in lieu of one and the other were dissolved and a divorce deed was executed which has been admitted by Bashir Ahmad before this Court. Accordingly, I hold that Talaq in this case is in the nature of Mubarat and had become irrevocable from the date of its execution and hence the provision of revocation contained in section 7 of the Muslim Family Laws Ordinance was inapplicable. The next crucial question is the nature of proceedings before the arbitration council constituted by the Chairman, Union Council 2314/L, Tehsil Chichawatni. The divorce deed was executed on 12‑3‑1986 and admittedly Bashir after execution of the same did not send a notice to the Chairman. It is surprising that both the learned counsel, while arguing the case were suffering under a misapprehension that a notice was given by Bashir Ahmad which he subsequently did not own and declared the same to be bogus and forged. The truth is otherwise. In fact no notice was ever sent by Bashir Ahmad but it was Mst. Pathani who had invoked the jurisdiction of the Union Counsel under law for seeking a declaration that Talaq had become absolute and effective. The statement as to the forgery and the bogus nature of notice was made by Bashir Ahmad on 21‑2‑1987 while the application was moved by Mst. Pathani for seeking a declaration about the effectiveness of Talaq on 25‑11‑86 whereupon number of notices were issued. It is thus obvious that the Chairman of the Union Council as head of the Arbitration Council constituted by him had acted without jurisdiction and lawful authority to file the proceedings acting upon the basis of the statement of Bashir Ahmad because no notice under section 7(i) of the Muslim Family Laws Ordinance was ever sent by Bashir Ahmad to the Chairman. The application moved by Mst. Pathani with the photostat of the extracts of the divorce deed obtained by her from the register of the petition writer constituted a notice under section 8 of the Muslim Family Laws Ordinance. It is thus, obvious that the Chairman was moved on 25‑11‑1986 and since the Talaq was irrevocable being in the nature of Mubarat, therefore, the Chairman ought to have declared the Talaq effective. The Chairman as head of the Arbitration Council did not conduct an enquiry as envisaged by law about the nature of Talaq and the execution of the divorce deed and, therefore, the statement of Bashir Ahmad had no relevance and significance to justify the filing of the proceedings. In this view of the matter I hold that Talaq was irrevocable and application of Mst. Pathani moved before the Chairman would constitute a notice under section 8 of the Muslim Family Laws Ordinance and, I therefore, the Chairman had no other option but to declare Talaq as effective. Accordingly I hold that Mst. Pathani is no more wife of Bashir Ahmad. It is further pertinent to refer to the conduct of Bashir Ahmad. After having divorced Pathani through mutal agreement on 12‑3‑1986 he did not take any action to have Mst. Pathani back as his wife. On the application of Mst. Pathani, number of notices were issued but Bashir Ahmad any appeared before the Chairman on 21‑2‑1987. During this period of 11 months the conduct of Bashir Ahmad disentitles him to claim Mst. Pathani as his wife. I am confident that he has stepped into this Court at the behest of the respondents, the maternal- uncles of Mst. Pathani who are bent upon to frustrate the marriage of Mst. Pathani with the petitioner.

8. Having held so the next question is, that in exercise of jurisdiction under section 491, Cr.P.C. what suitable order can be passed. I have sought guidance from the two judgments of the Supreme Court of Pakistan reported as Muhammad Rafique v. Muhammad Ghafoor P L D ` 1972 SC 6 and Mst. Sahi Bi v. Khalid Hussain and 6 others 1973 SCMR

577. Relying upon the aforesaid judgments and since the detenu is sui juris, I would, therefore, set her at liberty and would allow her to proceed wherever she wishes. With these observations, this petition stands disposed of. S.A./M‑149/L Detenue set at liberty