2006 PLP 1753 (YLR)

MAULVI ANWARUL HAQ, J.--According to this W.P. the petitioner was married to respondent No.3 on 18-7-1997 at Islamabad. The spouses belong to "Shia" sect. Grievance being made out is that on 12-11-2003, the father of the petitioner who is also her attorney received a notice from office of respondent No.2. He put in appearance in the said office on 13-11-2003 and informed that the petitioner is a resident of U.K. However, he was told by respondent No.2 that 90 days of the alleged reconciliation proceedings, pending in his office have expired and he has issued a certificate of effectiveness of divorce. Requisite copies were obtained and revision was filed which was dismissed in somewhat summary manner by respondent No.1.

2. Learned counsel for the petitioner contends that there is no evidence on record that divorce in the manner prescribed by "Shia" faith was pronounced by respondent No.3 upon the petitioner. He has also argued that effective reconciliation proceedings within the meaning of law were not undertaken. He relies upon the cases titled Mst. Maryam Bano v. Hussain Ali and another (1984 CLC 1961), The State v. Syeda Salma Begum and another (PLD 1965 (W.P.) Karachi 185) and Inamul Islam v. Mst. Hussain Bano and 4 others (PLD 1976 Lah. 1466).

3. I have given some thought to the contention of the learned counsel. Now in our country the matter of divorce is governed by section 7 of Muslim Family Laws Ordinance, 1961. The conditions of valid divorce as prescribed in the said law are as follows: (i) Pronouncement of valid divorce by husband upon wife in accordance with the principles of Sect to which the parties belong; (ii) A notice informing the factum of pronouncement of divorce to be sent to the Chairman, Arbitration Council with a copy to the wife; (iii) Upon fulfillment of aforenoted two conditions, divorce shall become effective, if not withdrawn by the husband earlier, upon expiry of 90 days from the date of receipt of the said notice in the office of Chairman or in case wife is pregnant upon termination of pregnancy whichever point of time is later. It has been settled by consensus expressed in several judgments pronounced by the superior judiciary of the country that Chairman has no jurisdiction to issue a certificate declaring as to whether a divorce has become effective or it remains in-effective. A valid divorce can take effect only upon the fulfilment of the conditions noted above.

4. This writ petition accordingly is disposed of with the observation that whenever and wherever in any Court if question arises as to whether or not c respondent No.3 has divorced the petitioner validly, it will be subject to valid proof of several conditions as contained in section 7 of the Muslim Family Laws Ordinance, 1961 enumerated above, and notwith standing any certificate of any nature issued by respondent No.2. M.I./S-72/L Order accordingly.