P L D 1994 Lahore 236 (PLP)

Through this Constitutional petition the petitioner has challenged the order dated 22‑11‑1991, passed by the Chairman, Union Council, Ward No.64, Main Market, Gulberg II, Lahore, respondent No.2.

2. The petitioner was married to Faqir Syed Jameel‑ud‑Din Bokhari, respondent No.l on 27‑5‑1979 at Lahore and their Nikah was registered on 28th May, 1979 in accordance with the provisions of the West Pakistan Muslim Family Laws Ordinance, 1961. At that time, the spouses were Pakistani nationals: They lived together as husband and wife at Lahore and out of the wedlock three children were born. They proceeded to America, settled down there and acquired American nationality on 20th November, 1989. During their stay at America relations between the spouses became strained. In 1991 respondent No.l came to Pakistan and sent a notice of Talaq to the petitioner on 16‑8‑1991 at her parents' address as well as her address at America. A copy of the notice was sent to the Chairman, Union Council, respondent No.2 for initiating proceedings under the West Pakistan Family Laws Ordinance. The Chairman sent a notice to the petitioner at her last known address at America. She received it and at first sent a notice and then a telegram to the Chairman stating therein that he had no jurisdiction in the matter. However, the Chairman assumed jurisdiction and started proceedings in the matter. Thereupon, the petitioner filed the present writ petition to assail the legality of the proceedings before the Chairman, respondent No.2. However, during the pendency of the petition the Chairman passed the impugned order on 22nd November, 1991, making the Talaq effective. Thereafter, he issued certificate of effectiveness of Talaq on the same day.

3. The petitioner's learned counsel strenuously urged that the parties being American citizens were not amenable to the jurisdiction of the Chairman, Union Council. He explains that the provisions of the West Pakistan Muslims Family Laws Ordinance, 1961, are applicable only to the citizens of Pakistan. Therefore, certificate of effectiveness of Talaq issued by the Chairman is nullity in the eye of law. He further submits that the respondent could dissolve marriage only in accordance with the New Yark Family Laws as he is citizen of the said State. On the other hand, the learned Deputy Attorney‑General as well as the learned counsel for respondent No.l urged that a Muslim husband is competent to dissolve the marital bond by pronouncing Talaq irrespective of his nationality or, citizenship. They add that the Talaq pronounced thrice immediately results in dissolution of marriage and no further proceedings are required before any legal forum. They place reliance on the cases of Mirza Qamar Raza v. Mst. Tahira Begum PLD 1988 Kar.169, Allah Banda v. Mst. Khurshid Bibi and 2 others 1990 CLC 1683 and Allah Dad v. Mukhtar and another 1992 SCMR 1273. In the last mentioned case it was held that notice of Talaq was not mandatory under the Injunctions of Islam and divorce pronounced or written by a Muslim husband cannot become invalid in Shariah because its notice had not been given to 'the Chairman, Union Council.

4. It is settled law that the provisions of the Muslim Family Laws Ordinance are applicable only to Muslim citizens of Pakistan wherever they may be. It is so provided in section 1(2) of the Ordinance which reads as follows: "It extends to the whole of Pakistan and applies to all Muslim citizens of Pakistan, wherever they may be." However, under the West Pakistan Family Courts Act, 1964, the Court enjoys exclusive jurisdiction to try suits for dissolution of marriage, dower, maintenance, restitution of conjugal rights, custody of children, guardianship and jactitation of marriage, irrespective of the fact whether the parties are Muslims or not. So far as the foreign citizens are concerned, they can invoke the jurisdiction of the Civil Court by virtue of the provisions of section 20 of the Civil Procedure Code, 1908 under which a Civil Court enjoys plenary jurisdiction to entertain and try a suit if the parties, at the commencement of the suit, are residing within its local limits. This question was considered by the Supreme Court of Pakistan in the case of Masood Ahmad Malik v. Mst. Fouzia Farhana Quddus and others 1991 SCMR

681. The Court was pleased to hold as under:‑‑ "Accordingly, any party irrespective of the question whether he is Muslim citizen of Pakistan or not can institute a suit, including a suit for jactitation of marriage before a Court within whose local limits the defendant is, for the time being residing. If the parties are Muslim citizens of Pakistan, the suit will be tried and determined in accordance with the provisions of the Muslim Family Laws Ordinance, 1961. But if they are not Muslim citizens of Pakistan the suit can still be entertained but it will be tried and determined by the proper law of the parties; in the former case by the Family Court while in the latter case by the ordinary Civil Court of competent jurisdiction." . Therefore, a foreign citizen can, not only invoke the jurisdiction of the Civil Court but also approach this Court for redress of his grievance under Article 199 of the Constitution of Pakistan.

5. The arguments of the learned DA: G. and the learned counsel for respondent No.l that a Muslim husband enjoys unfettered power to pronounce Talaq carries weight. The mere fact that the husband happens to be an American citizen or for that matter citizen of any other country would make no difference in respect of his right to pronounce Talaq. Ordinarily a Muslim husband is loath to pronounce Talaq, because out of a number of permissible acts, the Holy Prophet Hazrat Muhammad (p.b.u.h.) had declared Talaq to be most abhorrent. The emphasis of Islamic teachings is to keep the family unit intact and not to break the marital bond unless it becomes absolutely necessary. In the event of Talaq it is not necessary for a Muslim husband to level allegations against his wife and thus drive her out of the house with blots on her character. Likewise, a Muslim woman can claim separation on the ground of Khula` on the solitary ground that she has developed fixed aversion against her husband and cannot lead a harmonious life with him within the limits of Allah. For this purpose she has to make a petition before the Court. The Court on finding that the wife has developed fixed aversion against the husband and that the spouses can no longer live amicably within the limits of Allah can pass a decree for dissolution of marriage.

6. In the present case, the petitioner and respondent No.1 were Pakistani citizens and contracted marriage on 27‑5‑1979 at Lahore in accordance with the Islamic Law. Their Nikah was duly registered on 28‑5‑1979. For a few years they lived together happily and out of their wedlock three children were born to them. Thereafter, they left for U.S.A. and acquired American nationality/citizenship on 20th of November, 1989. However, some serious rift took place between the two, as a result of which the husband/respondent No.1 abandoned the petitioner and came over to Pakistan. He divorced the petitioner by pronouncing Talaq thrice and sent notice of Talaq dated 16‑8‑1991 to the petitioner. He also sent a copy of the notice to the Chairman of the Union Council, Ward No.64, Gulberg, Lahore, for necessary proceedings under the law. The Chairman sent several notices to the petitioner who did not enter appearance before him but sent a notice and a telegram challenging his jurisdiction in the matter. The Chairman constituted the Arbitration Council comprised of himself and the representative of respondent No.l, which issued certificate of effectiveness of Talaq (Annexure `K') on 22‑11‑1991.

7. As held above a Muslim husband enjoys the right to dissolve the marital bond through Talaq pronounced orally or in writing. There are three well‑recognized modes of Talaq which are stated below: (i) Talaq‑e‑Ahsan: ‑It consists of a single pronouncement of Talaq made during a `Tuhr' (period between menstruations) followed by abstinence from sexual intercourse after the period of Iddat. (Iddat is the period during which the divorced wife has to remain in seclusion and to abstain from re‑marriage). The duration of Iddat, if the woman is subject to menstruations is three courses; if she is not so subject, it is three lunar months. If the woman is pregnant at the time, the period of Iddat is extended till delivery. (ii) Talaq‑e‑Hassan: ‑It consists of three pronouncements of Talaq; the first made during one `Tuhr'; the second during the next and the third during the succeeding one. (iii) Talaq‑e‑Bain or Talaq‑ul‑Bidaat: ‑It consists of three pronouncements made during a single `Tuhr' in one sentence e.g. "I divorce you thrice" .... or in three .... separate sentences e.g. "I divorce you", "I divorce you", "I divorce you". If the first two modes are adopted the Talaq remains revocable till it attains finality; either on the expiry of three months in case of Talaq‑e‑Ahsan or the third pronouncement, in case of Talaq‑e‑Hassan. However, if the husband pronounces Talaq thrice (which ordinarily is to be avoided) then it becomes effective at once and is irrevocable. A different note is struck under the Shia Fiqah which does not recognise the validity of the third mode of Talaq. In the present case, the contesting parties have not claimed to mode Shias by faith and are presumed to be Hanafi Sunni Muslims. Hence the Talaq pronounced by respondent No.1 thrice instantaneously became effective and irrevocably dissolved the marital tie. A similar view was expressed in Allah Banda's case,, relied upon by the learned Deputy Attorney‑General. Thereafter, the proceedings taken before the Chairman Union Council respondent No.1 were a mere exercise in futility. Moreover, the provisions of the W.P. Muslim Family Laws Ordinance are applicable to Muslim citizens of Pakistan. Therefore, the provisions for sending notice to the Chairman, constitution of the Arbitration Council and issuance of a certificate of effectiveness of Talaq were not attracted in the present case as the spouses are admittedly American citizens. Looked at from any angle, the proceedings before the Chairman were futile and nullity in the eye of law.

8. Therefore, while holding that the Talaq pronounced by respondent No.1 thrice became effective at once and dissolved his marriage with the petitioner, I partly al1ow this petition and declare the proceedings taken by the Chairman, Union Council, respondent No.2 and the certificate of effectiveness of Talaq issued by him, to be without lawful authority and of no legal effect: The parties are left to bear their own costs. AA./A‑549/L Order accordingly.