P L D 2005 Lahore 644 (PLP)

Instant Constitutional petition prayed that order dated 21-5-2005 passed by respondent No.1 may be declared illegal, void and of no legal consequence whereby he refused to issue certificate of divorce and transferred the matter to Nazim Union Council, Mohallah Imam Bakhsh, Tehsil Shahpur Saddar, District Sargodha.

2. Succinctly, relevant facts are that respondent No.3 was married with the petitioner on. 25-3-1995 through a registered Nikah Nama at Walton Cantt. Lahore according to Injunction of Islam and provisions of Muslim Family Laws Ordinance, 1961. Relations between the spouses did not remain cordial and without any child out of the wedlock, resulted in separation. The petitioner while posted at Lahore where respondent No.3 also lived with him, on 7-2-2005 issued a notice of divorce under section 7 of the Muslim Family Laws Ordinance, 1961 to the Chairman Arbitration Council, Cantonment Board, Lahore Cantt. Copy of which was remitted to respondent No.3 who according to him, was residing in the area .of Lahore Cantonment, at that time.

3. Respondent No.1 on receipt of notice of divorce, summoned respondent No.3 for 15-2-2005 and thereafter on each two days of hearing , received report of the process server that she was not living at the given address. Ultimately, notice to respondent No.3 was got published' in daily newspaper "Pakistan" requiring her attendance on 25-4-2005 on which date an application was moved by respondent No.3 for transfer of proceedings to Nazim Union Council Mohallah Imam Bakhsh, Tehsil Shahpur, District Sargodha as respondent No.3 was residing at that time within that area. Respondent No. 1 without calling upon the petitioner to explain as to why matter be not transferred to Tehsil Shahpur as prayed by respondent No.3, directed the transfer being influenced by the application of respondent No.3. The petitioner has challenged order of transfer, as noted above. Respondent No.3 in response to notice by this Court has appeared and is represented through her counsel.

4. I have heard the learned counsel for the parties and have examined the record, appended herewith. Under law, if any person who wishes to divorce his wife has to give notice in writing of his having done so to the Chairman with a copy of Notice to the wife in terms of section 7 of the Muslim Family Laws Ordinance, 1961. To which Chairman such a notice is to be given for that matter, we will have to refer to the West Pakistan Rules under Muslim Family Laws Ordinance, 1961 whereunder rule 3(b) is relevant and reads, as under: (b) in the case of notice of Talaq under subsection (1) of section 7, it shall be the Union Council of the Union or Town in which the wife in relation to whom Talaq has been pronounced was residing at the time of the pronouncement of Talaq; and The above reproduced rule clearly envisaged that the Chairman concerned means Chairman of the Union Council of the Union or Town in which the wife at the time of pronouncement of Talaq was residing and not the Chairman in whose jurisdiction she subsequently shifted her abode. According to the claim of the petitioner, respondent No.3 was residing within the area of Walton Cantonment, Lahore when he pronounced the divorce hence, he correctly, remitted the notice to respondent No.1. The transfer order by respondent No.1 revealed that he without determining this aspect of the matter remitted the file to Shahpur, on a simple request of respondent No.3. There is no provision of transfer of notice of divorce by the Chairman Union/Town Council, either in Muslim Family Laws Ordinance, 1961 or in the rules framed thereunder and in absence of any such provision, transfer of the matter regarding divorce by respondent No.1 was also without jurisdiction. Confronted with this legal position, both the learned counsel for the parties agreed that the transfer order of respondent No.1 may be set aside and case may be remitted to him for fresh decision with a, specific finding in view of the above legal position, touching his jurisdiction.

5. In view of concurrence between the parties, this petition is accepted and order of transfer as reflected in letter No.U.C.W. 555/2005 dated 21-5-2005 by the Secretary Union Council Walton Cantt. is declared to be illegal, void and of no legal effect with the result that notice of divorce by the petitioner shall be deemed to be pending before respondent No.1 who will decide the matter again, first taking up the dispute regarding jurisdiction of the Chairman, Union/Town Council to issue certificate in terms of section 7 of the Muslim Family Laws Ordinance, 1961. Parties shall appear before respondent No.1 on 21-7-2005. There will be no order as to costs. H.B.T./Z-103/L Petition accepted.