1984 PLP 638 (CLC)

This constitutional petition under Article 9 of the Provisional Constitution Order, 1981, challenges the order passed by the respondent No. 3, on 7th July, 1981 in Chairman Case No. 1849 of 1980 making the divorce effective between the parties L e. petitioner and respondent No.

1. A declaration has also been sought that the marriage between the petitioner and respondent No. I still subsists. 1 have heard Mr. K. M. Nadeem, learned counsel for the petitioner and Shaikh Ejaz Ahmad, learned counsel for respondent No. 1 and also for respondent No. 2, who is the father of respondent No. 1.

2. The petitioner was married at Karachi with respondent No. 1, on 29th March, 1980 and the nikah was duly registered. It appears that differences arose between the parties and their families and it is the case of the petitioner that under duress the divorce deed, dated 29th September. 1980 was got signed from him. It is further averred on behalf of the petitioner that no intimation was sent by the petitioner/husband to the concerned Chairman, so as to complete the proceedings of divorce but a copy of the divorce deed was sent by the private respondents, where upon the proceedings were taken by the respondent No.

3. It is the case of the petitioner that respondent No. 3 illegally and without jurisdiction started recording the evidence on behalf of respondent No.

1. In any case, during the proceedings before respondent No. 3: an application was made by the petitioner, on 26th September, 1981 praying that the statement of respondent No. I may be. recorded on special oath and the petitioner was ready to accept the claim of the respondent No. 1, if she took special oath before respondent No.

3. It is an admitted position that special oath was taken by respondent No. t before respondent No.

3. By .order dated 7th July, 1981, observing that respondent No. 1 had taken special oath as aforesaid and that the reconciliation efforts failed, respondent No. 3 declared that the talaq was effective, as 90 days had expired. An application was filed by respondent No. 1 before respondent No. 3 and the same was dismissed. The relevant portion of the order of respondent No. 3, dated 15th November, 1981 is as follows :‑ "Moreover, during the proceeding of the case representative for the opponent made an application, on 26th September, 1981 praying therein that statement of the applicant may be recorded on Special Oath and opponent is ready to accept the claim of the applicant if she deposes in Court on Special Oath and her witness. The appli cation of the opponent regarding Special Oath was granted and statement of the applicant and her witness were recorded. She stated that opponent has divorced her and gave Talaq orally and in writing before two witnesses. The witnesses have also stated that in their presence opponent gave Talaq to the applicant. Under the circumstances stated above I am of the view that opponent has divorced his wife and the said diverce is effective after the expiry of 90 days 1. e. statutory period. Hence I see no merits in the appli cation filed by the opponent and dismiss the same with no order as to costs."

3. The following contentions were raised by Mr. K. M. Nadeem. learned counsel for the petitioner :‑ (a) Respondent No. 3 had no jurisdiction to take any proceedings relating to Talaq in question, as the petitioner had not sent any intimation to him but a copy of the divorce deed had been sent to the Chairman by or on behalf of the respondent No. 1. (b) In the proceedings in question Special Oath could not be given and no order could be passed on the basis of Special Oath. (c) The divorce deed had been obtained under coercion. (d) A suit for restitution of conjugal rights had been filed by the petitioner. In my view, after having made the application, dated 26th September, 1981 praying that the statement of respondent No. I may be recorded on Special Oath and that if such Special Oath was taken, the petitioner was, ready to accept the claim of respondent No. 1. the petitioner cannot allowed to raise the question of jurisdiction of respondent No. 3 before this Court under its Constitutional jurisdiction. The petitioner had himself prayed to respondent No. 3 to record the statement of respon dent No. 1 on Special Oath. After the respondent No. 1 had taken Special Oath and given her statement, it was not open to the petitioner, in the circumstances of the present case, to challenge the jurisdiction of respondent No. 3 or to take up the plea that the Special Oath could not be given in materimonial proceedings. The deed of divorce having been signed by the petitioner under coercion is also not open to the petitioner after having made the said application, dated 26th September, 1981. Even otherwise, the present is not a case for exercising the extra ordinary jurisdiction by this Court for granting any relief to the petitioner after he had made the aforesaid application, dated 26th September, 1981 on the basis of which Special Oath having been taken by respondent No. 1.

4. Constitutional Petition No. S‑30 of 1982 is dismissed with costs. M. Y. H. Petition dismissed.