1994 PLP 1053 (CLC)

I have considered the above submissions of the learned counsel for the parties. In order to appreciate the submissions of the learned counsel, it would be pertinent to reproduce the provisions of sections 7 and 8 of the Ordinance which read as under: "7. "I .‑‑(I) 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 a 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 b~ punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees o with both. (3) Save as provided in subsection (5) Talaq unless revoked earlier expressly or otherwise, shall not be effective until the expiration o ninety days from the day on which notice under subsection (1) c 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 o bringing about a conciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation. (5) If the wife be pregnant at the time Talaq is pronounced, Talaq shall not be effective until the period mentioned in subsection (3) or the pregnancy, whichever later, ends. (6) Nothing shall debar a wife whose marriage has been terminated be Talaq effective under this section from remarrying the same husband without an intervening marriage with a third person, unless such termination is for the third time so effective.

8. Dissolution of marriage otherwise than by Talaq.‑‑‑Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by Talaq the provisions of section 7 shall mutatis mutandis and so far as applicable apply." A plain reading of the above sections would show that section 7 of the Ordinance deals with the case where a man wishes to divorce his wife and all that he is required to do is to give such notice to the Chairman "after the pronouncement of Talaq". Section 8 of the Ordinance provides that such right if delegated to the wife may be exercised by her and the provisions of section 7 shall mutatis mutandis apply. Thus it may be observed that this provision comes into operation only where any of the two spouses wishes to divorce and pronounces Talaq or taken any other steps towards dissolution than such notice is to be given and in consequence of such notice, the Chairman will issue a Certificate confirming the divorce or dissolution after lapse of 90 days unless revoked earlier. In the present case there is no such pronouncement or action taken by any spouse for dissolution, not even a decree or order passed by competent Court in this respect. Thus there is no occasion for the Chairman to issue such certificate. The very contents of notice dated 6‑1‑1991 issued by the petitioner which has been placed on record as Annexure `B' shows that she herself has stated that on account of act of defiling Panjsoorah Sharif by respondent No. 2, the marriage stands terminated. This fact she has supported by Fatwah of Ulemas. However, the question before the Chairman would be as to whether the marriage stands terminated. I am of the view that it would not be within the jurisdiction of the Chairman to decide this question. In these circumstances, the Chairman has rightly observed that it would be for the Civil Court or any other competent Court to decide this question. As regards the issuance of Certificate to the effect of confirmation of dissolution of marriage it would be consequent upon such declaration. Even the ground No. 5 taken in ‑the present petition reads as under: . "That this is not a case for dissolving marriage but it is notice of dissolved and terminated marriage." This also shows that the petitioner herself had treated the marriage to have already been dissolved or terminated and thus the question of seeking any such order from the respondent No. 1 does not arise, as the marriage was not dissolved by the petitioner who has given notice to the (respondent). The other question involved in the present petition is as to whether the provisions of Muslim Family Laws Ordinance would be applicable. in the, present case. According to the petitioner herself the respondent No. 2 had become Kafir or Murtad and thus he is no more a Muslim, whereas section 1 of the Ordinance reads as under: "

1. Short title. extent. application and commencement.‑‑(1) This Ordinance may be called the Muslim Family Laws Ordinance, 1961. (2) It extends to the whole of Pakistan and applies to all Muslim citizens of Pakistan, wherever they may be. (3) It shall come into force on such date as the Central Government may, by notification in the official Gazette, appoint in this behalf." Clause (2) above would show that the provisions of the Ordinance would apply to all Muslim citizens of Pakistan. This takes the non‑Muslims out of the ambit of the provisions of this Ordinance. In the case of Samual Masih v. Mst. Terasa Marriam (PLD 1976 Lahore 290) a Division Bench had held that in case the parties who are Christian by religion the matter cannot proceed against them under Muslim Family Laws Ordinance. In this view of the matter also the provisions of this Ordinance would not be applicable to a non‑Muslim. In view of the above discussion, the present petition is misconceived and is accordingly dismissed with no order as to costs. However, it will be open for the petitioner to seek any declaration or dissolution before the Civil Court or Family Court if so advised. Above are the reasons for the short order announced on 19th I December, 1993. H.B.T./S‑1041/K Petition dismissed.