P L D 1979 Lahore 241 (PLP)

Order dated 7-12-1977 passed by the Assistant Commissioner, Cantonment, Lahore, acting as Chairman, Arbitration Council constituted under the Muslim Family Laws Ordinance, 1961 has been brought under challenge in the following circumstances.

2. The petitioner, Princess Aiysba Yasmien Abbasi, was married to the respondent, Maqbool Hussain Qureshi in 1976. It appears that differences between the spouses arose within a short period of about a year. In consequence thereof they entered into an agreement, dated 28th June 1978 the contents whereof read as follows: "We the undersigned, whose marriage was solemnized in Ward No. 36 at Lahore, on the 19th of August, 1976, have mutually decided and agreed to dissolve the marriage under the Muhammadan Law and within the purview of Muslim Family Laws Ordinance of 1961. Of the dower amount fixed at the time of marriage, Rupees One Lac, excluding the House, has been paid by Maqbool Hussain Qureshi; son of Nawab Sadiq Hussain Quresh4 to Princess Aiysha Yasmien Abbasi, daughter of Nawab Muhammad Abbas Khan Abbasi, and, she has returned all items of jewellery received by her at marriage, to him, in full and final settlement and in accordance with our mutual agreement and consent. Neither of us the undersigned have any further claims against the other. In view of the rituals mentioned above, we, the undersigned have also decided and agreed not to have any resort to any Reconciliation Council for purpose of bringing about any reconciliation or settlement of any dispute, and this decision of both the parties is final and conclusive."

3. Both the parties signed this agreement in presence of two witnesses, both of whom also signed it (the agreement). Not only the parties entered into the above-quoted agreement but they sent it to the Secretary/ Chairman Union Committee Ward No. 36, Lahore and requested the authority concerned that "the marriage between the undersigned be dissolved" and to complete the formalities with intimation to each one of the parties to the agreement. The Chairman of the Union Committee duly received the abovementioned communication on same day, i. e., 28-6-1977. Notices were sent to both the parties for nominating their representatives as also for appearance. Both the parties participated in the ensuing proceedings. It appears that initially the respondent's counsel took the stand that he had revoked the "Talaq" before the expiry of 90 days but this position was subsequently given up and a firm plea was taken before the Chairman that the communication in the form of agreement addressed to the Secretary (Chairman) did not constitute a notice under section 7(1) of the Ordinance; therefore, no form of dissolution of marriage/Talaq could become effective. The petitioner's counsel, however, after reiterating the position that the dissolution of marriage through the aforequoted agreement having become final and conclusive, Arbitration Council could not change it. However, it was also specifically pointed out to the Chairman that section 8 of the Ordinance provided that where any of the parties to a marriage wishes to dissolve the marriage otherwise than by Talaq, the provisions of section 7 would be attracted only mutatis mutandis. In other words it was the petitioner's case that section 8 read with section 7 would cover the situation. Written arguments were also placed from the petitioner's side on the record of the Union Committee. After the proceedings the Chairman came to the following conclusion: "I have considered the entire case from all aspects and reached the conclusion that the Chairman of the Arbitration Council is competent to take cognizance of divorce matters only under the provisions of section 7(4) of the Muslim Family Laws Ordinance, 1961 and no other provision of any law empowers him to proceed in such matters. Section 7 of the Muslim Family Laws Ordinance, 1961 gives any man a right to divorce his wife under subsection (1) of which a notice to writing shall be given to the Chairman who shall within 30 days of the receipt of such notice constitute an Arbitration Council as provided under subsection (4). It may also be added that such notice of divorce can be revoked any time before the expiry of 90 days. The learned counsel for Prineess Aiyasha Yasmien Abbasi has argued that the separation between his client and her husband had taken place under the provision of section 8 of Muslim Family Laws Ordinanze, 1961 which reads as follows:

8. Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq the provisions of section 7 shall, mutatis mi4tandis and so far as applicable, apply." It would be observed that the right to divorce had never been delegated by Mr. Maqbool Hussain Qureshi to his wife and all that has been brought on record is a mere agreement between the parties that they wanted to revoke their matrimonial relationship. The said Maqbool Hussain Qureshi has also submitted in writing that be had never given any or talaq notice of talaq to his wife. In view of the above it is evident that since no recourse has been taken to the provisions of section 7 of Muslim Family Laws Ordinance, 1961 as such the agreement reached between the two matrimonial parties on 28th of June, .1977 cannot be treated as a notice of talaq. " The proceedings and the order of the Chairman have been brought under challenge in this writ petition with a view to seek two alternative remedies: (i) for setting aside the order of the Chairman dated I-12-1977; and (if) for direction to be made to the Chairman to give effect to the dissolution dated 28-6-1977. The writ petition, as it appears, has by way of abundant caution, been amended with the permission of the Court to urge that the "impugned order dated 7-12-1977, pasted by respondent No. 2 is contrary to law and is of no legal effect". Respondent No. 1 despite all efforts to serve him on known/admitted addresses, on which he was also earlier served when the case was before the Chairman, has chosen not to defend this writ petition and has remained absent throughout. Orders passed in this behalf particularly on 22-11-1977 and 18-12-1977 may be read as part of this judgment. There was no alternative left except to .proceed ex parte.

5. Learned counsel has raised the following points:-- ., (ii) that the respondent having chosen not to defend the petition, if not all the submissions of the petitioner, at least those made on facts and stated in the writ petition be accepted as uncontroverted. That being so, the petitioner's position that the marriage was dissolved by both the parties through mutual consent and agreement should be treated as a proved fact. Learned counsel has further argued that it would be a case. of dissolution of marriage by Kbula' or Mubara' at; (ii) that in either case whether the dissolution is by Khula' or Mubara'at the same is irrevocable and as such has become effective. Reliance in this behalf has been placed on Mst. Khurshid Bib! v. Baboo Muhammad Amin ((1) P D 1967 S C 9 ) and Muhammad Nawaz v. Mst. Fait Ealhi and 2 others (978 Lab ) ; (iii) that the communication Annexure 'A' which contains the agreement of dissolution of marriage verbatim . addressed to the Secretary/ Chairman on the same day the marriage was dissolved, is a valid notice under section 8 read with section 7 of the Muslim Family Laws Ordinance; (iv) that although the marriage was irrevocably dissolved on 28-6-1977, in any case the dissolution became effective on 26-9-1977, f. e. on expiry of 90 days as provided under section 7 read with section 8 of the Ordinance; (v) that although the proceedings before the Chairman took place after the expiry of 90 days because of late service of notice on the parties, the fact remains that the spirit of section 7 stood satisfied by both the parties participating in the proceedings before the Chairman which were conducted with the help of counsel appearing for both the sides. Thus, according to the learned counsel there is no contravention of section 7 of the Ordinance; (vi) that although the respondent by a written application dated 20-10-1977, i. e. after the dissolution had become effective, denied his having ever served a notice tinder section 7, this would not be of any advantage to the respondent firstly because it was after the expiry of ninety days; and secondly, as noted above, there was no question of separate notice under section 7; according to the learned counsel it, was a case of a notice/communication under section 8 read with section 7 of the Ordinance; and (vii) on the basis of the above submissions learned counsel argued that approach/order of the Chairman of the Arbitration Council, in that the communication (Annexure 'A') was not a valid notice and that a separate recourse to provisions of section 7 was necessary, is not only erroneous but also without lawful authority and of no legal effect.'

6. I agree with the learned counsel that dissolution of marriage byj way of Khula' and Mubara'at is irrevocable in so far as the authority of the husband to revoke the same is concerned; but the ancillary argument on account of the stated position of law the proceedings before the that 'Arbitration Council would either be unnecessary or without lawful authority is not acceptable. The case of Muhammad Nawaz cited by the learned counsel is distinguishable. The . Chairman in the said case had conducted the proceedings on a notice of revocation and had given a certificate of cancellation/revocation of the notice of Talaq. These proceedings regarding revocation being against Muslim Law, were held to be without lawful authority. The spirit of the law would be satisfied if a notice of dissolution of marriage in the form of Khula'/Mubara'at is sent to the Chairman by virtue of the provisions contained in section 8 read with section 7 of the Ordinance. Because of use of the expressions "mutatis mutandis and so far as applicable" in section 8, the form of the notice would of course change and it might be different from the one in simple Talaq which is to be sent by the husband1E under subsection (1) of section 7 of the Ordinance. In this case as the nature of the agreement between the parties shows, they having agreed mutually to dissolve the marriage the communication sent by both of them in the form of Annexure 'A' and addressed to the Secretary, Chairman was in accord with the provisions of section 8 read with section 7 of the Ordinance. Thus, while I do not agree with the learned counsel that proceedings under section 7 were not necessary, on the other hand, the view taken by the Chairman that the communication Annexure 'A' did not satisfy the provisions of law applicable in the case is held to be erroneous. The said communication was a valid notice under section 8 read with section 7 of the Ordinance and to that extent the order of the Chairman is held without lawful authority.

7. The next question arises whether the provisions of section 7 in the circumstances of this case stood complied with, the answer in absence of any defence from the respondent has to be in the affirmative. Both the parties were asked to nominate their representatives and were afforded opportunity of appearance which both of them availed of. They engaged counsel and represented their respective point of view before the Chairman. This all can be treated as in the nature of proceedings which are necessary to be conducted by the Arbitration Council. Thus the requirement of law that the provisions contained in section 7 would mutatis mutandis anJ so far as applicable apply have been satisfied in this case.

8. The question as to when exactly the dissolution in this case became effective is in the circumstances of this case, more academic than real. The respondent has not contested the, writ petition. There is no reason to dispute the fact that the dissolution became effective in accordance with the provisions of the Muslim Family Laws Ordinance on expiry of 90 days, 1. e. on 26-9-1978. It cannot be seriously questioned.

9. In the light of the above discussion the Chairman had no authority except to state that proceedings conducted under section 7 had not succeeded and that he had nothing more to do in the case. His observations that no recourse had been taken to the provisions of section 7 of the Muslim Family Laws Ordinance, 1961, and that "the agreement reached between the two matrimonial parties on 28-6-1977 cannot be treated as a notice of Talaq" are without lawful authority and without any legal effect.

10. With the above declaration this petition is allowed. There shall be no order as to costs. s. A. H. Petition allowed.