1990 PLP 803 (SCMR)

Respondents Nos. 1 and 2 ‑‑(Notice served). Ch. Irshad Ahmad Virk, Advocate Supreme Court, Ch. Mehdi Khan Mehtab, Advocate‑on-Record for Respondent No.3. Date of hearing: 31st October, 1989. ALI HUSSAIN QAZILBASH, J.‑‑‑This appeal, by leave, arises from the judgment of a learned Single Judge of the Lahore High Court, dated 28‑9‑1988.

2. The facts as given in the appeal are that the appellant was married to respondent No.3 about ten years earlier. Out of the wedlock, a son and a daughter (who died later on) were born. The temporary custody of the son is with the respondent No.3.

3. The spouses could not pull on amicably, therefore, respondent No.3 on 7‑1‑1986, sent a notice of divorce to the Chairman, Union Council No.67 Dhalam, District Sialkot. The said notice remained pending with the Chairman on the objection that the same was not genuine. The appellant then filed an application with the Chairman Union Council praying for maintenance allowance .at the rate of Rs.3,000 per month against the respondent. Respondent No.3 was accordingly served with a notice, who submitted an application for the transfer of the case, which was allowed and the case sent to the Vice‑Chairman Union Council for decision.

4. Respondent No.3 then filed a writ petition challenging the order of respondent No.1 dated 14‑10‑1986 and also the proceedings pending before respondent No.2 as being without lawful authority, oppressive and mala fide. The writ petition was allowed and the proceedings before respondent No.2 were quashed as per the impugned judgment.

5. Leave in this case was granted to examine whether, factual controversy I having been raised before the High Court, respondent No.3's constitutional petition could have been allowed; also if need be to examine whether in the circumstances admitted and established in this case, it can at all be held that the appellant stood divorced before filing of the maintenance application; or that in case of a negative answer, the respondent would have to send a fresh notice. The question with regard to the effectiveness of the so‑called alleged divorce also required examination.

6. The learned counsel for the parties heard and the record perused. The learned Judge in his Chambers while quashing the proceedings observed. "It is not denied by the respondents that a notice of divorce was sent to the Chairman Union Council by Manzoor Ahmad Sahi petitioner on 7‑1‑1986. The objection was that this notice was not genuine and, therefore, no action could have been taken by the Chairman. I find no merit in this objection because Manzoor Ahmad Sahi never at any stage stated that 'the said notice was not sent by him or that it was a wrong/false notice. The Chairman was required to initiate proceedings by summoning the parties for conciliation but instead of following the legal procedure he raised an imaginary objection that the divorce notice was not genuine. The divorce certificate was wrongly not issued within 90 days from divorce notice dated 7‑1‑1986. This means that on 22‑7‑1986 at the time of filing of an application for maintenance allowance, she was no longer wife of Manzoor Ahmad Sahi petitioner. The Chairman/Vice Chairman Union Council, as held in Mushtaq Ahmad v. Collector Lahore 1986 C L C 2312(2) had no power to award maintenance to wife after divorce had become effective."

7. The learned counsel for the appellant, as the case stands, could not make out any case in favour of his client inasmuch as he was absolutely unable to support the proceedings. The notice of the divorce was duly served upon the appellant on 7‑1‑1986 and its copy was sent to the Chairman concerned. Here before us, the learned counsel for the appellant neither controverted the genuineness of the notice of divorce nor its receipt by the appellant. The Chairman, therefore, under the law was bound to give effect to the divorce after the period of ninety days and could not proceed with the application for maintenance submitted by the appellant on 22‑7‑1986, i.e., after more six months.

8. Finding no force in the appeal, the same is dismissed with costs. AA./N‑236/S Petition dismissed.