2017 PLP 166 (CLCN)

MUHAMMAD AMEER BHATTI, J.

Through this constitution petition, the petitioner has called-in-question the arbitration proceedings initiated by respondent No.1/Chairman Arbitration Council, Ward No.10 Cantonment Board, 42 Sarwar Road, Lahore on the notice of Talaq issued by respondent No.2, inter alia on the ground that respondent No.1 had no territorial jurisdiction to entertain the notice of Talaq. This Court vide order dated 25.02.2010, at the time of preliminary hearing, while issuing notice to the respondents, stayed the proceedings before respondent No.1. During pendency of this petition, civil miscellaneous application bearing C.M. No.3/2010 seeking vacation of interim relief was filed by respondent No.2, which stood disposed of by this Court on 31.08.2010. The relevant portion whereof is as under: "

3. It is quite obvious the respondent/writ petitioner mother has knowingly removed the child from the jurisdiction of the learned Guardian Court contrary to the undertaking given on her behalf to this Court. Under the circumstancts here are no ground for present restraining order imposed upon respondent No.1, Chairman Arbittation Council to be continued. It is accordingly recalled." Pursuant to afore-referred order, the Chairman Arbitration Council issued Divorce Certificate on 06.09.2010 having its effect from 10.03.2010. Through C.M. No 2986/2010, petitioner sought amendment in the instant Constitution petition challenging issuance of Divorce Certificate. Although notice on said application was issued to respondent No.2 but as per statement of learned counsel representing respondent No.2, neither he received any notice nor was he aware of pendency of this application. On the other hand, the writ petitioner filed the amended writ petition even without obtaining requisite order from this Court. In order to regularize the proceedings, the learned counsel for respondent No.2 by showing grace has expressed no objection in order to complete the proceedings of this case and consented to permit the petitioner to file the amended petition. Accordingly, C.M. No.2986/10 is allowed and amended petition already placed on record shall be considered part of this petition.

2. It is noticed that in the prayer clause, the petitioner had not incorporated any prayer for declaring the divorce certificate being illegal, unlawful notwithstanding the fact that the amendment has been incorporated in body of the writ petition. However, in light of settled principle of law laid down by the Hon'ble Supreme Court on the issue involved that any relief can be granted even if it has not been sought in a specific manner in the prayer clause if it is otherwise flowing from the body of the petition and in the light of this background, the case is being heard.

3. The facts necessary for just decision of this case are that the petitioner and respondent No.12 got married on 12.11.2000 and out of this wedlock one child namely Rafeh Mumtaz Cheema took birth on 14.05.2003. The spouses alongwith their child resided in U.S.A. and sometime in U.K. in connection with job of respondent No.2. On account of some differences mentioned in the notice of Talaq, respondent No.2 decided to divorce the petitioner; resultantly he sent a notice under section 7(1) of Muslim Family Laws Ordinance, 1961 to respondent No.1 in order to complete the process of divorce as provided under the Ordinance. Respondent No.1 initiated the proceedings by issuing notice to the petitioner on 11.12.2009 and also adopted the procedure of publication of notice in the newspaper which had appeared in the newspaper dated 16.12.2009. The petitioner approached the Chairman Arbitration Council/respondent No.1 by way of filing an application dated 15.01.2010 and specifically raised the question of his jurisdiction for the reason that the parties were keeping their abode permanently in USA, therefore, this Council had no territorial jurisdiction to entertain the notice of Talaq what to speak of the proceedings. However, on account of inaction on the part of Chairman Arbitration Council to decide the application, in particular, his jurisdiction, the petitioner chose to approach this Court. Hence, this Constitution petition.

4. During the pendency of this writ petition, the petitioner-wife also petitioned for judical separation in the Court of U.S.A. whereas in this petition, the claim of the petitioner is that she intended to return to cohabitation with respondent No.2.

5. It is contended by the learned counsel for the petitioner that the parties are permanently residing in USA, therefore, the Chairman Arbitration Council lacks jurisdiction to determine the validity of the notice of Talaq sent by respondent No.2; that the matter qua divorce is pending in the Court of New Jersey USA where both the parties are in hot pursuit of said case, therefore, respondent No.1 lacks jurisdiction either to entertain such notice or to initiate the proceedings, as both the parties do not reside in Pakistan and as such Family Laws are not applicable, hence the proceedings concluded by respondent No.1/Chairman Arbitration Council are void ab initio and un-sustainable in the eye of law; that notice under section 7(1) of the Ordinance had been issued to the wife/petitioner violating the mandatory provisions of law and; that notice of Talaq issued to respondent No.1 in its present form could not constitute Talaq as before its issuance, Talaq ought to have been pronounced as per mandates of Family Laws which deficiency in itself is sufficient to refuse initiation of proceedings on the notice of Talaq. Lastly he presented the copy of the U.S. Citizenship and Immigration Services Naturalization Oath of Allegiance to the United States of America to establish that after taking this oath on 25th June, 2014, the petitioner has acquired the citizenship of USA, therefore, the proceedings conducted by the Chairman Arbitration Council are illegal, unlawful and without any legal justification, hence are liable to be set-aside. To substantiate his contentions, reliance is placed on Inamul Islam v. Mst. Hussain Bano and 4 others (1973 SCMR 185), Mst. Sardar Bibi and others v. Muhammad Khan and others (2005 SCMR 1671), Mst. Fahmida Bibi v. Mukhtar Ahmad and another (PLD 1974 Lahore 694), Mst. Maqbool Jan v. Arshad Hassan and another (PLD 1975 Lahore 147), Sh. Muhammad Rashid v. Mst. Zarnigar Qaiser Sheikh (PLD 1980 Lahore 61), Dr. Masood Khan v. Chairman, Arbitration Council, Wah and 2 others (PLD 1982 Lahore 532), Mst. Zakia Farooq v. Chairman, Union Council and another (1991 CLC 1720), Mst. Naseem Akhtar v. Syed Shafqat Ahmed and another (1997 MLD 11), Bhambhar and others v. Mst. Nooria and others (1999 YLR 2078), Abdul Haseeb v. Chairman, Arbitration Council and others (2000 CLC 202), Saba Riaz v. Nazim/Chairman, Arbitration Council, Gulberg, Lahore and another (2003 YLR 3189), Sohail Majeed Karim v. IInd Family Judge, South Karachi and others (PLD 2004 Karachi 498), Mst. Saira Shaukat through Special Attorney v. District Collector I.C.T., Islamabad and 2 others (2006 YLR 1753), Louise Anne Fairley v. Sajjad Ahmed Rana (PLD 2007 Lahore 300), Mian Irfan Latif through Special Attorney v. Nazim/Chairman Union Council No.100, Ichhra, Lahore and another (2008 CLC 1580) and Malik Gul Riaz Awan v. Mst. Asma Gul Riaz and others (2009 MLD 1274).

6. On the other hand, learned counsel for respondent No.2 submits that disputed questions of facts have been raised by the petitioner which could not be settled in the constitutional petition. By referring section 1 of Muslim Family Laws Ordinance, 1961 learned counsel submits that it is applicable to whole of Pakistan and to all Muslim citizens of Pakistan wherever they may be, and since both the parties were Muslim citizens of Pakistan at the time of giving notice, therefore, the proceedings conducted by respondent No.1 are legal and fall within the jurisdiction of said authority and no illegality has been committed by the Chairman Arbitration Council while adopting the procedure and ultimate issuance of certificate of Talaq. Further submits that on one hand the petitioner claimed in this writ petition by specifically alleging that she has the intention to live with respondent No.2 under matrimonial roof but on the other hand she applied by filing petition in New Jersey Court for dissolution of marriage. This contradictory stance adopted by her before two different forums in itself debars her to seek indulgence of this Court. It is added that the process of notice was initiated by respondent No.1 on 11.12.2009 by issuing notice to the petitioner and on receiving information about pendency of the proceedings before the Chairman Arbitration Council, she herself filed the application on 12.01.2010 negating her assertion that she had not been informed as required by law about filing of notice. And if any deficiency in sending notice as required under section 7(1) of the Muslim Family Laws Ordinance, 1961 is found, the same stood cured. He referred to different certificates issued by the USA authorities to substantiate his contention that both the spouses were present in Pakistan at the time of filing of this notice and initiation of proceedings. Therefore, the proceedings conducted by the Chairman Arbitration Council were in accordance with law. Learned counsel taking advantage of the case-law reported Allah Dad v. Mukhtar and another (1992 SCMR 1273), Batool Tahir through Nominee/ Representative/Special Attorney Mustojab Zehra v. Province of Sindh through Secretary Local Government Sindh and 3 others (PLD 2005 Karachi 358) and Sanya Saud v. Khawaja Saud Masud and others (2013 CLC 108) summarized his submissions to argue that Talaq would become effective even in the absence of a notice to the Chairman under section 7 of the Ordinance, 1961 and declaration of its ineffectiveness on account of deficiency of notice to the Chairman would be against the Injunctions of Islam.

7. I have heard the learned counsel for the parties and gone through the record of the case as well as the case-law cited from both sides.

8. From the facts and circumstances of the case and arguments advanced by learned counsel for the parties the following two questions of law have been emerged which need to be answered:- i) Whether status of the parties falls within the ambit of section 1(2) of the Muslim Family Laws Ordinance, 1961? ii) Whether Talaq once pronounced and on account of any deficiency to follow the procedure provided under section 7 of the Muslim Family Laws Ordinance, 1961 could affect the validity of Talaq and whether Arbitration Council could expand the period of 90-days to give effect to Talaq pronounced by the husband and what is the purpose and significance of promulgation of this Act particularly the proceedings conducted by the Arbitration Council under section 7 of the Muslim Family Laws Ordinance, 1961? Answer No.1:

9. This question is answered in affirmative as both the parties, undeniably, were Muslim citizens of Pakistan at the time of issuance of notice and its proceedings. Though they were residing in U.S.A. but at the time of pronouncement and submission of notice of Talaq, both were residing in Pakistan and admittedly at that time they did not acquire status of being citizens of U.S.A. The documents available on record demonstrate that for certain period they left U.S.A. in order to stay in Pakistan but simultaneously it is equally true that they lived together for short durations in USA and U.K. etc. Above all, they being Muslims and holder of Pakistani nationality were entitled to avail the process provided under section 7 of the Muslim Family Laws Ordinance, 1961. For proper understanding of the peculiar jurisdiction exercised by respondent No.1, one must briefly know about the basic provisions of law given in section 1(2) of the Ordinance of 1961, which reads as under:- "It extends to whole of Pakistan, and applies to all Muslim citizens of Pakistan, wherever they may be." From the said provision, textually set-out above, it would appear that parties to instant petition fall within the ambit of section 1(2) of the Ordinance 1961, as careful and minute dissection of record does not show that the parties ever expressed their relinquishment of Pakistani citizenship. This aspect has never been urged by either side during course of arguments; meaning thereby they admittedly are Muslim citizen of Pakistan and were present in Pakistan at the time of filing of divorce notice. It is added that the marriage of the parties was celebrated in Pakistan, which was regulated by the law of the country, where they were domiciled. So far as the contention raised by the learned counsel for the petitioner that notice of divorce was permissible to be served upon the petitioner is concerned, suffice it to observe that said notice became effective through proclamation in newspaper on 16.12.2009 in Daily Jang irrespective of the fact that the petitioner defended the notice on gaining its knowledge leading to an irresistible conclusion that she was well within its knowledge during her sojourn in Pakistan. This is beside the point that she challenged the notice of talaq by addressing a letter to respondent No.1 on 15.01.2010 wherein she has made admission of service of notice in Pakistan by saying that, "therefore, notice served in Pakistan is legally flawed and ineffective". Said letter stood negated through letter dated 27.01.2010 issued by respondent No.1 and this fact has been concealed. The letter dated 27.01.2010 is pinned with reply to this petition at page

107. Therefore, the jurisdiction exercised by respondent No.1 in terms of section 7 of Muslim Family Laws Ordinance, 1961 culminating in issuance of certificate of Talaq was in consonance with the said provisions of law; hence, he has not committed any jurisdictional defect or transgressed his prerogative. Even otherwise, non-service of notice entails punishment but it does not restrict its effectiveness. So, if any transgression is found in following the procedure it will not bring the effectiveness redundant. Following the above reasons, the answer of first question is in affirmative. Answer No.2:

10. Section 7 of Muslim Family Laws Ordinance, 1961 has been inserted in the Act to provide a procedure to the spouses to give another thought about their decision. The only connotation appeared from bare reading of said Section transpires that the law-framer had the intention to make a flow to realize the consequences they will face after divorce but it does not mean that the Council established through this promulgation has been empowered to examine the scope/validity of Talaq. Its significance is only to streamline the completion of process of divorce and even on account of non-following the provisions of section 7 will not affect the validity of divorce. It has to reach its logical end provided the spouse who declared Talaq has not revoked it within the stipulated time enunciated by Holy Qur'an. Any deficiency in completion or following of process provided under section 7 of Muslim Family Laws Ordinance, 1961 will not invalidate the consequence of pronouncement of Talaq nor it will enlarge the time of its effectiveness. For this reason the legislature itself being conscious of the norms of Islamic Law intentionally provided the punishment for non-following the procedure but has not declared in any clause of section 7 the effect of Talaq invalid. Therefore, it could safely be interpreted that any deficiency in following the provisions would not annul the effect of Talaq beyond 90-days, therefore, the judgment relied upon by learned counsel for the petitioner reported as Romana Zahid v. Chairman, Arbitration Council/Nazim Union Council and another (PLD 2010 Lahore 681) with all respect is not applicable as the view taken by the learned Judge on the face of it is contrary to the provisions of Muslim Family Laws and even the provisions of section 7 do not construe it mandatory, as no consequence qua effectiveness of Talaq has been provided on account of non-following the procedure defined in section 7 of the Ordinance, 1961. Mere providing of punishment on account of non-following the procedure in section 7 does not mean to bring the provisions within the ambit of 'mandatory provisions' and on this aspect of the case, proper assistance has not been rendered. In order to declare any provision as directory or mandatory, I am aided from the guidelines given by the honourable Supreme Court of Pakistan in a case reported in Niaz Muhammad v. Fazal Raqib (PLD 1974 Supreme Court 134) wherein it was held as under:- "It is true that no universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of the Courts to try to get the real intention of the legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision." To my understanding, the honourable Supreme Court held that unless the act is not declared invalid the direction in the provision would not be mandatory. And in a case reported in Apollo Textile Mills Ltd. and others v. Soneri Bank Ltd. (2012 CLD 337), reliance was placed on the afore-cited case-law of Niaz Muhammad (PLD 1974 Supreme Court 134).

11. At the cost of repetition and in order to supplement my answers to the questions, I am clear in my view that the case-law referred by the learned counsel for the petitioner although articulates the principle of law yet the same somehow or the other is distinguishable on facts involved in the present case. I am also fortified by the judgment of honourable Shariat Appellate Bench of Supreme Court of Pakistan in Allah Dad's case (1992 SCMR 1273), wherein it was held that notice of Talaq to the Chairman was not mandatory under the Injunctions of Islam and any divorce pronounced or written by a husband could not be ineffective or invalid in Shariah merely because its notice had not been given to the Chairman and this view was followed in another judgment of learned Division Bench in case Batool Tahir through Nominee/ Represnetative/Special Attorney Mustejab Zehra v. Province of Sindh through Secretary Local Government Sindh and 3 others (PLD 2005 Karachi 358) by holding: "We are fortified by the unreported judgment of this Court dated 20-9-1987 in Constitutional Petition No.(S)90 of 1984 wherein this Court has endorsed the above view. We have further examined the judgment of this Court in the case of Mirza Qamar Raza v. Mst. Tahira Begum reported in PLD 1988 Kar. 169, which view has been affirmed/approved by the Honourable Supreme Court of Pakistan in the case of Allah Dad v. Mukhtar reported in 1992 SCMR 1273, wherein their Lordships have held that a Talaq would become effective even in the absence of a notice to the Chairman under section 7 of the Ordinance, 1961, so also that the Talaq cannot be declared ineffective in absence of a notice to the Chairman as contemplated by section 7 of Ordinance, which provision of law, their Lordships have held, was against the Injunctions of Islam."

12. Comprehending sensitivity of the issue involved, I took advantage from commentary/translation of Qur'anic text in Surah Al-Baqarah given in Ma'ariful Qur'an authored by Maulana Mufti Muhammad Shafi so as to understand the kinds of Talaq, procedure and its efficacy with concerns. The relevant portion thereof reads: To summarize, it can be said that the three stages of talaq (divorce) established by the Shariah of Islam in the form of three talaqs, do never mean that crossing these three stages are necessary or better. Instead, the intent of the Shariah is that the very initial step towards divorce is a detestable and reprehensible act. If such a step has to be taken under dire compulsion, it is only proper that its lowest possible stage, that is, one (pronouncement of) talaq be considered sufficient, allowing 'iddah (the waiting period) to take its course. Once the `iddah is over, this very one talaq will become sufficient to sever the husband-wife relationship and the woman shall become free to marry another person. This method of talaq is called ahsan, that is, the best. In this method there is wisdom, and an element of advantage as well, since the option of reconciliation will remain open for the parties concerned in the event only one talaq has been given in clear words to that effect. Only taking the talaq back before the expiry of iddah will be sufficient to sustain the Nikah. And after the iddah has expired, the Nikah will, no doubt, be broken and the woman set free, but there still reconcile and wish to remarry each other, the fresh Nikah could be solemnized immediately. But, should a person who does not stick with this method of ahsan talaq and goes on to pronounce one more talaq in clear and unambiguous words during the period of 'iddah', he then, completes two stages of the severance of Nikah, which was unnecessary, and certainly not approved by the Shariah. However, two stages stand complete anyway. But the position, inspite of the completion of these two stages, stays where it was, that is, the choice of rajah (revocation) or return (to one's wife) during the period of iddah remains open and a fresh nikah could be made by the mutual agreement of the parties concerned after the expiry of the period of iddah. The only difference is that the husband has, by reaching the count of two talaqs, broken one more chain of his choices and arrived at the borderline from where the pronouncement of just one more talaq by him would end the matter for ever. For one who has gone through these two stages of talaq, the instruction given later in Surah Al-Baqarah (Verses 229-230) is: : Then either to retain in the recognized manner or to release in fairness. Here two injunctions have been communicated through the words . Firstly, revocation during 'iddah does not require fresh Nikah; instead, only imsak, that is, retaining one's wife by revoking the talaq is sufficient. If this was done, the marriage relationship will stand reinstated on the very basis of the previous Nikah. Secondly, through this, the husband was instructed to take steps to effect his rajah (revocation) only if he intends to correct the situation and looks forward to living in peace and harmony; if not, he should pass this option so that the marriage relationship bends following the completion of 'iddah. The concern here is that rajah (revocation) may not be done just to harass the woman without any intention of correcting the situation. And, if he, inspite of this, elects not to do so, rather, going a step further, pronounces the third talaq as well, he now has reached a dead end where he has, quite unreasonably and unnecessarily, done away with all his options, ignoring in that process, graces allowed by the Shariah. The punishment he now deserves is that rajah (revocation) will not be possible, and without the wife marrying someone else, the couple's being re-united in marriage will also be not possible. In accordance with the dictates of this principle, the false steps taken, such as, the ignoring of concessions given by the Shariah and shooting upto three talaqs unnecessarily, bypassing all choices of talaq one has, no doubt, became a cause of anger for the Holy Prophet and for this reason, this act was considered 'undesirable' by the consensus of the ummah, and 'impermissible' by some; but, if inspite of all this, someone has taken such a step, it should bring forth the same effect as would be that of a permissible talaq, that is, three talaqs become effective and not only the choice of rajah (revocation) but also the very choice of fresh Nikah stands negated. No doubt, the course of action for the Muslim community has been laid down with the consensus of Sahabah and Tabi'in, warning that giving three talaqs simultaneously is certainly a cause of the anger of the Holy Prophet , and therefore undesirable, but despite this, anyone who commits this mistake will end up finding that his wife has become unlawful for him, and thereafter, not to become lawful again, unless she goes through the process of marriage and divorce with another man." Hence, question No.2 is answered accordingly.

13. The crux of whatever has been stated above, it is held that the respondent No.1 has not committed any illegality by initiating the process and issuing the arbitration process on the basis of notice of Talaq sent by respondent No.2, therefore, it is obvious that this petition has no merits. Resultantly, this petition fails and is hereby dismissed.

14. Before parting with judgment, civil miscellaneous application bearing No. 3947-C/2011 filed by respondent No. 2 for dismissal of Writ Petition as having become infructous, stands disposed of accordingly. MH/S-78/L Petition dismissed.