P L D 1976 Karachi 416 (PLP)

ABDUL HAYEE KURESHI, J.

The present petition under Article 199 of the Constitution has been filed by Mrs. Parveen Choudhury (hereinafter referred to as the petitioner), challenging an order of the VI Senior Civil Judge acting as the Chairman of the Arbitration Council under section 7 of the Muslim Family Laws Ordinance, whereby a divorce given by respondent Dr. M. H. Choudhry was confirmed. The impugned order was passed on 5-11-74. Mr. Khalid Anwar has appeared for the petitioner and while the Senior Civil Judge and Ex-Officio Chairman was not represented, respondent Dr. M. H. Choudhury was represented by Mr. A. G. Muhammad Ali and Mr. Khurshid Anwar, Advocates.

2. The facts which have led to the present litigation are that respondent Dr. Choudhry was married to the petitioner Parveen Choudhry in 1961 and 3 daughters were born out of the wedlock. The respondent Dr. Choudhry is working as a Doctor in the United States of America since a number of years. It appears that in December 1973, respondent Dr. Choudhry divorced the petitioner by a writing purporting to state that incompatibility on account of emotional problems of the petitioner was the reason for the divorce. Such Deed was attested by a Notary Public at New Jersey (U. S. A.). Respondent Dr. Choudhry thereafter forwarded the divorce deed to the Pakistan Consulate-General in New York requesting that the authorities in Pakistan may be moved to confirm the divorce in accordance with the provisions of the Muslim Family Laws Ordinance. Consequently, the Consulate-General of Pakistan forwarded the papers to the Deputy Commissioner at Karachi, who in turn sent the same to the District Judge at Karachi for proceedings under the Mudim Family Laws Ordinance. The matter came up before the VI Senior Civil Judge, First Class, Karachi, who is by virtue of Notification, designated to perform the functions of the Chairman as envisaged by section 7 of the said Ordinance. The Senior Civil Judge issued notice to the petitioner and the same was served on 7-8-1974. The petitioner had been required to nominate a representative to act on the Arbitration Council. Mr. Ibrahim Lakhani, Advocate, was so nominated by the petitioner and the respondent. Dr. Choudhry had also nominated Mr. Zakir Akhtar Advocate, as his, representative. On behalf of the petitioner objections were filed as to the maintainability of the proceedings, mainly on the ground that the divorce had not been communicated by the respondent to the petitioner and for such reason there was no valid divorce in existence. Reliance in that behalf was placed on the provisions of section 7 of the Ordinance. A further grievance was made that the respondent had to be present in person as otherwise the purpose sought to be achieved by the provisions of section 7(4) of the Ordinance would be defeated and frustrated. It was also alleged that the respondent had before the finality of divorce entered into nuptial ties with some outer, lady. The respondent Civil Judge fixed the meetings of the Arbitration Council on several dates of hearing but ultimately on being informed that attempts at reconciliation had failed the Senior Civil Judge terminated the proceedings by confirming the divorce. Aggrieved by such order the petitioner has filed the present petition. The grounds in the petition were two-fold: Firstly, that the respondent was not a properly constituted, authority within the meaning of section 7 of the Ordinance and secondly, that the respondent Civil Judge, besides failing to follow the procedure as. prescribed by law had failed to appreciate that the mandatory requirement of the Ordinance was that the Arbitration Council should function as such. Together with the petition an application had been filed to restrain the respondent-husband from contracting another marriage pending the disposal of the train petition. By an order dated 25-11-1974 of a Division Bench of this Court the petition was admitted mainly on the ground that the appointment of the respondent Civil Judge as Chairman required considera tion. An ad interim order restraining the respondent husband from re-marriage was also passed. The interim application came up for hearing before another Division Bench of this Court, of which one of us was a member and the learned Advocate for the petitioner was apprised of the appointment of the respondent Civil Judge as the Chairman and such point was not pursued by him further. Even at the time of hearing before us the first point in regard to the validity of the appointment of the Civil Judge as Chairman has not been canvassed.

3. The points that have been raised before us on behalf of the petitioner are that no valid divorce was given, notice of divorce was not given to the petitioner-wife, and that the Arbitration Council had taken no steps to bring about a reconciliation.

4. Before entering into the merits of the contentions it shall be of benefit to reproduce the first four subsections of section 7 of the Muslim Family Laws Ordinance, which read as follows :

"(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy, thereof to the wife. (2) Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both. (3) Save as provided in subsection (5), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman. (4) Within thirty days of the receipt of notice under subsection (1) the Chairman shall constitute an Arbitration Council for the purpose of bringing ' about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation." In regard to the validity of the divorce we have no hesitation in expressing our confirmed opinion that under the Muslim Personal Law as well as the Ordinance no mode is prescribed for pronouncement of divorce. It is established law that a Muslim can pronounce a divorce orally or make the divorce in writing. In fact under the Muslim Personal Law a divorce in writing became irrevokable as soon as the same was written but the` Ordinance has made inroads into the Muslim Personal Law by providing a machinery and procedure for confirmation of the divorce and postponement of its effect for 90 days. In fact, even Mr. Khalid Anwar did not pursue this point very seriously and we see no force in this contention. We would only express that on the factum of divorce there was abundant material on the record of the Civil Judge and even before us.

5. The next contention of the learned Advocate for the petitioner is that a divorce has to be communicated to the wife as to the Chairman. In such context the learned Advocate has placed reliance on the provisions of subsection (1) of section 7 of the Ordnance. Additionally, the learned Advocate has also relied on the impugned order itself in which it is stated as follows :

"It is true that the copy of it has not been sent to the respondent. But, according to me, omission may be an offence under the Ordinance but the omission cannot operate as bar to the proceedings, or affect the divorce." Initially, it must be stated that this statement of fact in the impugned order is factually wrong. An affidavit was filed by respondent Dr. Choudhry in the Court of the respondent Civil Judge wherein it was specifically stated that on 16-12-1973 he bad not only written a letter to, the petitioner intimating about a divorce but also sent a copy of the divorce to deed to her. We also find that a postal receipt was placed on the record of the respondent Civil Judge showing that a letter was sent by the respondent-husband to the petitioner-wife from New Jersey and alongwith this postal receipt a photostat copy of the divorce-deed was attached. We had invited Mr. Khalid Anwar to explain the significance of this postal receipt but the learned Advocate was not able to make any satisfactory answer. A postal receipt is an official document which carries a presumption of genuineness with it, and therefore for this reason alone we have no difficulty in repelling this contention that the divorce was not communicated to the petitioner. Furthermore, while it was specifically asserted in the counter-affidavit of the respondent-husband that a copy of the divorce-deed had been sent to the petitioner-wife, no rejoinder or denial of such assertion was made by the petitioner before the respondent Civil Judge. We may also examine the provisions of subsection (1) of section 7 in -such context and the conclusion is inescapable that this provision only .provides for giving a notice of talaq to the Chairman and a copy thereof the wife. Subsection (2) of section 7 makes the position further clear b providing a punishment for contravention of provisions of subsection (1). As stated above the only impediment to immediate effectiveness of the divorce is information to the Chairman and the forming of the Arbitration Council. To such extent it is very clear to us that the mere fact of absence of communication of the divorce before moving the Chairman under subsection (1) of section 7 of the Ordinance does not invalidate the divorce. However, this is an argument only in addition to our finding that the copy of the divorce was indeed sent to the petitioner-wife by the respondent -husband.

6. We now proceed to consider the last contention on behalf of the petitioner to the effect that the respondent-husband was not present at the time of meetings of Arbitration Council and that the purposes of forming of an Arbitration Council were for such reason defeated. On a plain reading of provisions of section 7 it is very clear to us that the presence of the spouses is not mandatory by virtue of the provisions of section 7 of the Ordinance. All that subsection (4) of the said section postulates is the forming of the Arbitration Council by the Chairman for the purpose of bringing about a reconciliation between the parties, and the said Council shall take all steps necessary to bring about such reconciliation. Without any doubt, an Arbitration Council was formed and the spouses had nominated their respective representatives. The record of the respondent Civil Judge also clearly shows that the representatives of the two parties had appeared before the Civil Judge and it is further clear from the record that in spite of several adjournments, reconciliation between the parties was not possible. We find that on 14-9-1974 and 24-9-1974, the representa tives of both the parties were present but no reconciliation could take place. Thereafter, one or the other representative was not present on a few dates of hearing and again the representatives of both parties were present on 25-10-1974 and 2-11-1974. The respondent Civil Judge has clearly stated that no reconciliation or compromise could take place nor was there any hope for reconciliation, and therefore he had "no alternative but to confirm the divorce". One can well visualise practical situation in cases of this nature. Very often a person at the time of divorce is extremely adamant and for reasons, good or bad, made up his mind against reconciliation with the wife. Even in the present case. Mr. A. G. Muhammad Ali appearing on behalf of the respondent-husband has stated before us that there was no possibility whatsoever of the couple reconciliating. Howsoever unfortunate, the position may be, the law cannot come to the rescue of the petitioner and for such reason alone the petition was hardly purposeful. Mr. Khalid Anwar for the petitioner has urged before us that in fact the representatives made no attempt to bring about 'a, reconciliation between the parties and for such reason the very purpose of law was defeated. Be that as it may, we find that attempts were made to bring about a reconciliation as is provided by subsection (4) of section 7 of the Ordinance but the attempts bore no fruit. In any case, it cannot be stated that the necessities of law had not been followed, what to speak of the same having been flouted. Mr. Khalid Anwar attempted to persuade us to give a determination in regard to the role which the Chairman of the Arbitration Council had to perform but for the purposes of this case it is not necessary to state anything more than what has already been said.

7. In the result, we see no force in this petition which is hereby dismissed. We shall however leave the parties to bear their own costs. S. A. H. Petition dismissed.