1989 PLP 460 (MLD)

4. Respondent No. 1 could not be served through ordinary process and, therefore, his service was procured by citation in the Daily Nawa‑i‑Waqt, Lahore. He failed to put in appearance on the date fixed for hearing of the case, therefore, ex parte proceedings were ordered against him. His father applied to be added as party. Subsequently, he did not prosecute that application which was dismissed. Respondent No. 1, in early November, 1988, put in an application for setting aside of the ex parte proceedings: His request was not opposed by the petitioner and thus the ex parte proceedings ordered against respondent No. 1 were set aside. He filed written statement and admitted the claim of the petitioner. In reply to paragraph No. 7 of the writ petition, it has been submitted by respondent No. 1:‑ "It is respectfully submitted that the divorce deed is bogus one and is a result of fabrication, manoeuvred by the father of the answering respondent through his influence. The writ petitioner is wife of respondent No.

1. The spouses have a baby aged about 11‑1/2 months approximately and wish to live as husband and wife for the whole life. The respondent's parents who were not happy with this marriage did not participate in the ceremony and making it a prestige question started pressurising him and his in‑laws through various methods so that this marriage may be dissolved at any cost. The father of respondent Rai Manzoor Ahmad Kharal planned to abduct him, wrongfully confined him and forced to give divorce. On 28‑9‑1987, when respondent alongwith his wife visited the house of his parents at 78 Hunza Block, Allama lqbal Town, Lahore at 12 noon, his father‑abducted him with the help of some other armed companions taking him to Sheikhupura while the wife of respondent Mst. Naila was kept in some neighbouring house. The respondent and his wife were tortured and confined at various places in chains. It was all attempted so that respondent may be kept separate from his wife and pressure may be built up for their separation. It is submitted that to assure the confinement of respondent he was escorted by deputed gunman at the instance of his father. During the detention of respondent he was threatened that the wife of respondent and her mother, father and brothers will be killed and before it will be involved in false cases. While in confinement the respondent was initially asked to divorce his wife but on refusal he was given beating and then some intoxicant was given to him forcibly making him to sign some blank papers purporting to be a divorce deed which they had already manufactured. The respondent was wrongfully confined and escorted at the various places as detailed below:‑ (1) New Colony Mohallah Rasul Nagar, Sheikhupura in a lived house. (2) Railway Rest House, Sheikhupura. (3) A village in Hafizabad where petitioner's maternal‑uncle resides. (4) Residence of Inspector of Works, Railway, near Sessions Courts, Sheikhupura. On the incident of abduction of respondent dated 28‑9‑1987, a case F.I.R. No. 1 of 1988, dated 1‑1‑1988, of offences under sections 365/406/34, P.P.C. was registered at the Police Station Wahdat Colony, Lahore, against his father, mother and brother‑in‑law. It is submitted here that to escape from the liability of this case respondent's statement under section 164, Cr.P.C. was obtained on 1.0‑1‑1988, after coercion exonerating the culprits. Subsequently, respondent was compelled to move such application exonerating the accused before the DSP, Ichhra."

5. The petitioner is resident of 17 Hunza Block, Allama Iqbal Town, Lahore. It has been urged that she has never resided in Mohallah Shah Colony, Sheikhupura which address has been shown in the notice sent to the Chairman, Arbitration Council, Ward No. 11, Sheikhupura. Respondent No. 2, Chairman, Arbitration Council, Ward No. 11 when asked about the residence of the petitioner, expressed his ignorance and conceded that personally he was not aware that if she ever resided in Mohallah Shah Colony, Sheikhupura. Under section 7 of the Muslim Family Laws Ordinance, 1961 (Ordinance VIII of 1961), it is incumbent for a man who wishes to divorce his wife that he shall give a notice to the Chairman in writing after the pronouncement of Talaq in any form. A copy of the notice has to be provided to the wife also. Subsection (3) of section 7 ibid provides that Talaq unless revoked earlier expressly or otherwise shall not be effective until the expiration of 90 days from the date on which notice under subsection (1) is delivered to the Chairman. Rule 3(b) of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, provides that in case of a notice of Talaq under subsection (1) of S. 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 pronouncement of Talaq.

6. In the present case, as earlier observed, the petitioner never resided within the territorial jurisdiction of Arbitration Council of which respondent No. 2 is the Chairman. He had, therefore, no jurisdiction to deal with the notice of Talaq, in regard to the petitioner. Thus the impugned certificate re: effectiveness of Talaq to the petitioner by the respondent, issued by respondent No. 2, is coram A non judice and nullity in the eye of law. Regarding the divorce itself, respondent No. 1 has categorically admitted that he has never divorced his wife. Talaqnama purporting to have been executed and signed by him is a forged and fake document. This admission of respondent No. 1 finds support from the background of this case which indicates that the father of respondent No. 1 has continuously been exerting pressure on the petitioner and respondent No. 1 to dissolve their marriage. He falsely involved the couple as also the parents of the petitioner in various criminal and civil cases. A criminal case on the charge of abduction etc. of respondent No. 1 has also been registered against the father of the respondent No. 1 at the behest of the petitioner. Genuineness of the divorce deed is, therefore, certainly doubtful and at least its voluntarily character is not proved.

7. In the above circumstances, the present writ petition is allowed and it is declared that the divorce deed, purporting to have been executed by respondent No. 1 in favour of the petitioner, is a forged and fake document and the certificate of Talaq issued by respondent No. 2 on the basis of the divorce deed is without lawful authority and of no legal effect. Respondent No. 2 shall bear the costs of the petitioner of this writ petition. M.Y.H./N‑208/L Petition allowed.