P L D 1996 Lahore 65 (PLP)

EX Parte proceedings were ordered against the respondent and the case has been now heard on merits.

2. By way Of this writ petition the Petitioner has challenged order dated 27‑11‑1993 passed by the Administrator/Ilaqa Magistrate, Ward No.17, as Chairman, Arbitration Council for a declaration that this order is passed without lawful authority, jurisdiction and justification and that a further direction be given to him to proceed with the case and issue a certificate of effectiveness of Talaq in accordance with law.

3. The brief facts of the case are that the petitioner was given in Nikah vide registered Nikahnama dated 5‑10‑1990 but the Rukhsati did not take place as in column No.17 of the said Nikahnama it was written that Rukhsati will take place after some period after the Nikah alongwith some other stipulations also. According to the submission of the learned counsel, the petitioner left for abroad and came back after 2‑1/2 years although petitioner's parents asked the respondent No.1 for Rukhsati but he postponed the matter for one or the other excuses. Meanwhile due to some incident the relationship between the families of the petitioner and the respondent became strained and due to the intervention of the respectables the matter was solved and respondent No.1 divorced the petitioner vide divorce deed dated 23‑9‑1993. The petitioner also remitted her dower money. This divorce deed was reduced into writing in presence of the independent witnesses and was also orally pronounced in their presence. The words written therein are: This divorce deed is signed by Khalid Saeed son of Muhammad Saeed, Haji Nazir Ahmad son of Bashir Ahmad, Qazi Ehsanuddin son of Qazi Zaheeruddin and Kh. Abdul Latif son of Kh. Abdur Rashid, thumb‑marked by the petitioner and signed by Muhammad Munir respondent. The petitioner vide application dated 20‑10‑1993 applied to the Administrator/Illaqa Magistrate, Ward No.17, Lahore as Chairman, Arbitration Council to issue certificate of effectiveness of Talaq. The Arbitration Council was constituted and both petitioner and respondent after being summoned appointed their arbitrators. Respondent No.1 placed before the Administrator/Illaqa Magistrate as Chairman, Arbitration Council notice dated 17‑11‑1993 showing revocation of Talaq on the ground that the same has been procured by collusion and with the help of Goondas by the father‑in‑law of the present petitioner. He also moved an application before the Collector, Lahore for a direction to the Administrator/Illaqa Magistrate to set aside the proceedings of Talaq and allow revocation of the same.

4. Respondent No.2 (Administrator/Illaqa Magistrate as Chairman, Arbitration Council) vide order dated 27‑11‑1993 dropped the proceedings on the ground that the respondent No.1 has revoked Talaq within 90 days and the present petitioner now has challenged the vires of the order dated 27‑11‑1993 on the basis that the divorce deed dated 23‑9‑1993 announced in presence of the petitioner and also independent witnesses reduced in writing drawn by the same Nikah Khawan who performed the Nikah between the petitioner and respondent No.l as unquivocally and clearly in its words and meanings and that a clear intention on the part of petitioner's husband has been pronounced effectively thrice and has become absolute under the dictates of the Holy Quran as well as Ahadith and Sunnah. The plea of collusion raised by the present respondent was an afterthought.

5. The other ground for challenging the impugned order is that the Administrator/Illaqa Magistrate as Chairman, Arbitration Council according to the provisions of Family Laws Ordinance, 1961 is not possessed with the jurisdiction to declare the validity or invalidity of Talaq. He being a post‑box is only possessed with the jurisdiction to give a certificate about the effectiveness of Talaq.

6. Learned counsel for the petitioner has attracted my attention to sections 311 and 312 of Mahomedan Law by Mulla and by Amir Ali. I have heard learned counsel for the petitioner and carefully perused the record. The certified copy of the Nikahnama existing on the rile at Column No. 17 clearly shows that the marriage was solemnized on 5‑10‑199P vide registered Nikahnama but Rukhsati was stated to be after some time alongwith the some other stipulations. Therefore, it is admitted that the marriage between the spouses remained unconsummated. It is also admitted that the divorce in writing was given by the respondent and it is written over there that he is divorcing the petitioner by pronouncing three Talaqs and is also showing that after Iddat the petitioner has become forbidden for him and become Haram.

7. Now most material question to be determined by this Court is whether Iddat is provided when the marriage does not stand consummated. Surra Al-Ahzab "(The Confederate Tribes) 33:49 reads: "Believers, if you marry believing women and divorce them before the marriage is consummated, you have no right to require them to observe a waiting period. Provide well for them and release them honourably." Qur'an has set at naught that no Iddat is required for a marriage A which is admittedly unconsummated.

8. The next important question to be determined by this Court is, whether three pronouncements of Talaq in one Tuhr is a Talaq and becomes irrevocable and complete. Section 311 of Mahomedan Law gives three modes of Talaq, i.e. Talaq Ahsan, Talak Hasan and Taraq‑ul‑Bidaat or Talak‑i‑Badai. Talak Ahsan means, a single pronouncement of divorce made during a Tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of Iddat. Talaq Hasan consists of three pronouncements made during successive Tuhrs, no intercourse taking place during any of three Tuhrs. Talag‑ul‑Bidaat or Talaki‑i‑Badai.‑‑This consists of. -- (ii) a single pronouncement made during a Tuhr clearly indicating an intention irrevocably to dissolve the marriage e.g. "I divorce thee irrevocably". Section 312.‑‑When talak becomes irrevocable.‑‑(l) A Talak in the Ahsan becomei irrevocable and complete on the expiration of the period of Iddat. (2) A Talak in the Hasan mode becomes irrevocable and complete on the third pronouncement, irrespective of the Iddat, and. (3) A Talak in the Badai mode becomes irrevocable immediately it is pronounced, irrespective of the Iddat. As the Talak becomes irrevocable at once, it is called Talak‑i‑Bain, that is, irrevocable Talak. Muhammadan Law by Syed Amir Ali, provides: "Talak‑ul‑Bain, When a definite and complete separate (Talak‑ul‑Bain) has taken place, the parties so separated cannot re‑marry without the formali of the woman marrying another man and being divorced from him, as mentioned before." A Digest of Moohummadan Law by Neil Bailie deals Buadaee form of divorce as under: 'When a man repudiates his wife three times in one Toohr, either in a single sentence or in different sentences, or joins two repudiations in one Toohr in a single sentence, or in different sentences. When he does this, the repudiation takes place." Sura Albaqra of Holy Qur'an reads: 2.229. Divorce may be pronounced twice, and then a woman must be retained in honour or allowed to go with kindness. It is unlawful for husbands to take from them anything they have given them, unless both fear that they may not be able to keep within the bounds set by Allah; in which case it shall be no offence for either of them if the wife ransom herself. These are the bounds set by Allah; ' do not transgress them. Those that transgress the bounds of Allah are wrongdoers. 2.230. If a man divorce his wife, he cannot remarry her until she has Wedded another man and been divorced by him, in which case it shall be no offence for either of them to return to the other, if they think that they can keep within the limits set by Allah. Such are the bounds of Allah. He makes them plain to men of understanding."

9. Now the question arises whether three Talaqs pronounced to a woman whose marriage stands unconsummated becomes absolute to her. I have already mentioned that a woman whose marriage stands unconsummated does not require any period of Iddat as is clearly envisaged in Sura 33.49 of the Holy Book but whether three divorces pronounced on such woman in one sitting it also irrevocable, this matter is also described in Fatawa Alamgari which reads as under: therefore, this is a settled law according to the Injunctions of Islam that three pronouncements of divorce in one sitting 'Toohr" is irrevocable although the thing differs in respect of period of Iddat in a marriage which is consummated and a marriage which stands unconsummated. The difference is only about Iddat. Therefore, the basic thing is to be seen the intentions of the person who is pronouncing the divorce and as far as this case is concerned there is a clear indication by the husband when pronouncing the divorce that he is completely in knowledge of the fact that he is making an irrevocable divorce to a woman who is required not to go through that Iddat period so the divorce Talaq, Talaq, Talaq pronounced by the clear intention of the husband in one Tuhir or sitting becomes Talaq Badeah whether pronounced in presence of wife or reduced into writing, and pronounced therein, in presence of witnesses against a wife and there then the marriage stands repudiated. An irrevocable divorce pronounced by the husband becomes effective from the time it is pronounced to a wife or in. presence of witnesses or reduced into writing. It is an established principle of law that mere non‑receipt of notice will not render the notice of Talaq ineffective or void. A Talaq if oiherwise valid under Qur'ar and Sunnah takes effect immediately on its pronouncement, and the Arbitration 'Council or its Chairman are not Taiaq‑enforcing agencies and they are not supposed to give any decision on the question of validity or otherwise of the Talaq under the substantive law of Talaq applicable to the parties. Reliance is placed on Mirza Qamar Raza v. Mst. Tahira'Begum and others PLD 1988 Karachi 169.

10. This is also an established law that the Administrator/Ilaqa Magistrate as Chairman of the Arbitration Council is not possessed with the, jurisdiction to annul any divorce or to declare any divorce valid or invalid. There are other forums to challenge the same. The Administrator acting as Chairman, Arbitration Council is just a post‑box and can only issue a certificate after the expiry of 90 days' period of Iddat for a marriage which is consummated. But for a marriage which is non‑consummated no period of 'Iddat is required according to the Injunctions of Holy Qur'an, therefore, I find that the order passed by the Administrator/Ilaqa Magistrate as Chairman, Arbitration Council is completely without lawful authority, jurisdiction and justification.

11. Therefore, I accept this writ petition, bet aside the impugned order and hold the divorce pronounced by the respondent to the petitioner as irrevocable and direct the Chairman/Illaqa Magistrate, Union Council Ward No.17, Lahore to issue a certificate of effectiveness of divorce, as soon as he receives the order of this Court.

12. No order as to costs. M.BA/A‑923/L Petition accepted..