1993 PLP 219 (CLC)

Ch. Naseer Ahmad Sindhu for Petitioner. Nemo for Respondents Nos. l to

5. Syed Iftikhar Hussain Shah for Respondent No.6. Date of hearing: 27th October, 1992. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of a matrimonial dispute.

2. Mst. Rashida Sultana, respondent No.6 herein, was married to Major Muhammad. Hayat, petitioner, on 20‑1‑1984. Unfortunately, the marriage could not prosper and disputes and differences arose between the spouses. On 18‑7‑1987, a notice was sent by the petitioner to Chairman, Ward No. 16, Popular Colony, Gujranwala, (respondent No.4), informing him that he had divorced his wife, Mst. Rashida Sultana. This notice was received by the Chairman on 21‑7‑1987. A copy of that notice was also despatched by the registered post by the petitioner to respondent No.5.

3. It appears that in pursuance to the notice, the Chairman called upon the parties to nominate their arbitrator. Certain other notices are also stated to have been sent by the petitioner to the Chairman and the respondent No.6. In response to the notice issued by the Chairman, the petitioner nominated Mirza Khan Chadharr as his representative, while `respondent No.6 appointed Asif Mahmood Mughal as her representative. 3‑A. During pendency of these proceedings, an application under Section 9 of the Muslim Family Laws Ordinance, 1961, for grant of maintenance was filed by respondent No.6 against the petitioner, in which he was proceeded against ex parte and vide order dated 28‑10‑1987, the Chairman proceeded to award maintenance to respondent No.6 at the rate of Rs.2,000 per month. As regards the proceedings for dissolution of marriage, it was observed that as the petitioner had failed to appear in person despite order of the Chairman, the proceedings be consigned to record.

4. Aggrieved by the aforesaid order, the petitioner filed a revision, which was heard by the District Collector, Gujranwala, who, vide his order dated 14‑5‑1991, proceeded to modify the order of the Chairman Arbitration Council only to the extent that he held respondent No.6 entitled to receive maintenance at the rate of 8.1,000 per month since 3 years from the date on which the order impugned before him was passed.

5. The first contention raised by learned counsel for the petitioner is that admittedly, as a notice of divorce was received by respondent No.4 on 21‑7‑1987, on the expiry of 90 days, the marriage between the petitioner and respondent No.6 stood dissolved by operation of law as provided by Section 7 of the Muslim Family Laws Ordinance, 1961, and the Chairman or the arbitration council had no jurisdiction whatsoever to hold to the contrary.

6. In reply, learned counsel for respondent No.6 has argued that the notice issued by the petitioner did not conforms to the requirements of Section 7 of the Muslim Family Laws Ordinance, 1961, and was, as such, invalid. It was elaborated by the learned counsel that according to Section 7, the marriage must first be dissolved by pronouncing Talaq and only then a notice could be sent but in the present case, the notice itself purported to dissolve the marriage without there being previous Talaq.

7. The argument of learned counsel for respondent No.6 is I hypertechnical in nature and amounts to hair splitting. In Islam, no particular mode is prescribed for dissolving a marriage through a Talaq. Any overt act on behalf of the husband, which is indicative of a firm intention to sever the matrimonial bond, operates as Talaq. So far as Hanfi Law is concerned, it cannot be disputed that it is not necessary to orally pronounce Talaq. In the present case, the despatch of notice by the petitioner under his own signatures was sufficient compliance of Section 7 of the Muslim Family Laws Ordinance, 1961. The rationale behind this provision is that husband must convey his intention to dissolve marriage to the Chairman, so that an effort could be made to bring about reconciliation. This requirement was fully met by the contents of notice dated 18‑7‑1987. The contention of learned counsel for respondent No.6 that it was necessary to separately pronounce Talaq before serving the notice upon the Chairman cannot be accepted.

8. It was not the case of respondent No.6 before the Chairman nor has it been argued on behalf of respondent No.6 by her counsel that the notice was not sent by the petitioner or that it was not genuine. In the circumstances of the case, the insistence that the petitioner must personally appear before the Chairman was wholly uncalled for, especially in view of the fact that the petitioner was duly represented in proceedings before the Chairman and also that the petitioner is employed in Pakistan Army and was posted outside Lahore. In this view of the matter, the Arbitration Council was clearly in error in holding that a marriage between the parties did not stand dissolved on the expiry of 90 days after the service of the notice of Talaq.

9. As regards the other aspect of the matter, it is to be seen that in the proceedings taken by the Chairman on the application under Section 9 of the Muslim Family Laws Ordinance, 1961, filed by respondent No.6 for grant of maintenance, the petitioner was proceeded against ex parte. He went in revision before the Collector, alleging that there was no proper service on him and he had no knowledge of the pendency of the proceedings. Unfortunately, this aspect of the matter was not adverted to by the Collector, although he was under a legal obligation to do so. Learned counsel for respondent No.6 has contended that the revision filed by the petitioner was barred by time. On this question also, there is no decision by the Collector. It is since long well‑settled that a Court or Tribunal, before whom a cause is brought, is obliged under the law to advert to the question of limitation, even it has not been raised. (See Ahsan Ali and others v. District Judge and others PLD 1969 SC 167). Consequently, the failure of the Chairman to decide as to whether the revision filed before him was barred by time and if so, whether there were any valid reasons for condoning the delay has rendered his judgment to be without lawful authority. As a result of what has been stated above, the impugned order of the Collector, so far as it relates to the question of maintenance, is declared to be without lawful authority and of no legal effect, with the result that the revision filed by the petitioner shall be deemed to be pending before him and shall be decided afresh in accordance with law. There shall be no order as to costs. AA./M‑692/L Case remanded.