P L D 2014 Lahore 632 (PLP)

ABID AZIZ SHEIKH, J.

Respondent No.2 has been served through his father but no one has turned up on his behalf, hence he is proceeded against ex parte.

2. This writ petition has been filed seeking direction against respondents Nos.1 and 3 to issue 'Certificate of Effectiveness of Divorce' in pursuance to divorce deed dated 10-5-2012 in favour of the petitioner.

3. Brief facts are that petitioner was married with respondent No.2 on 7-11-2010. In the beginning, relations between the petitioner and the respondent No.2 were cordial, however, it became strained with the passage of time. Due to intervention of the elders, with mutual consent of the parties, the respondent No.2 not only pronounced `Talaq' in presence of witnesses but also reduced it into writing on 10-5-2012. In addition, the respondent No.2 has also filed an application with respondent No.3 on 24-7-2012 to the effect that he has given divorce to the petitioner. In pursuance to the divorce deed dated 10-5-2012. petitioner applied respondents Nos.1 and 3 for the issuance of 'Certificate of Effectiveness of Divorce', however, the said certificate was refused to the petitioner vide impugned order dated 10-10-2012 on the ground that the respondent No.2 has withdrawn the divorce before the expiry of 90 days period.

4. Learned counsel for the petitioner argued that the divorce became effective by operation of law on the basis of Talaq Muba'arat. Submits that once the divorce deed was signed by the petitioner and respondent No.2 with mutual consent in presence of the witnesses, there was no power left with the husband to retract and respondents Nos.1 and 3 have no authority to refuse to issue the divorce certificate.

5. On behalf of respondents No.1 and 3, learned AAG submits that the divorce deed was presented before the respondent No.3 on 24-7-2012 and before the expiry of 90 days period, the respondent No.2 has withdrawn the notice of divorce, therefore, under section 7 of the Family Laws Ordinance, 1961 (Ordinance 1961), the petitioner is not entitled for the divorce certificate.

6. Arguments heard. Record perused.

7. The perusal of divorce deed dated 10-5-2012 makes it obvious that it was an agreement based upon the consent of the parties and was signed in presence of witnesses. The respondent No.2 also informed respondent No.3 vide notice dated 24-7-2012 about the aforesaid divorce. This factual position is not denied as respondent No.2 has not come forward to contest this writ petition.

8. It is settled law that if divorce is with mutual consent and on the basis of Muba'arat, the husband cannot retract or withdraw the divorce, nor Administrator/Chairman Union Counci1 has any authority to adjudicate upon validity of the divorce. The Administrator/Chairman Union Council is bound to issue divorce effectiveness certificate and has no power under law to entertain the notice of withdrawal of divorce and to start proceedings on the basis thereof. In this regard, reliance is placed on Mst. Shamshad Mai v. Chairman Arbitration Council, Ahmedpur East, District Bahawalpur and 2 others (2000 MLD) 173). The relevant portion of aforesaid judgment is reproduced hereunder:- 'The perusal of the divorce deed and notice of divorce makes it obvious that the divorce was based on consent (Muba'arat). This was conveyed to the Chairman Union Council and notice was also sent to issue certificate of effectiveness. Under the law if divorce is with mutual consent and on the basis of Muba'arat, the respondent cannot retract or withdraw the Talaq nor the Chairman has any authority to adjudicate upon the validity of divorce. The Chairman Union Council is bound to issue a certificate of effectiveness and has no power in law to entertain the alleged notice of withdrawal of divorce or to start proceedings on the basis thereof. Reference can be made to Muhammad Shahbaz Ahmad v. Sher Muhammad and others 1987 CLC 1496, Prince Aiysha Yasmeen Abbas v. Maqbool Hussain Qureshi (PLD 1979 Lahore 241) and Abdul Rashid and 2 others v. SHO Police Station Sadar Rehnala 1995 PCr.LJ 1247 where it has been filed that Talaq in the nature of Muba'arat through mutual agreement of husband and wife is final and provision of revocation contained in section 7 of Muslim Family Laws Ordinance, will not be applicable and the husband has no authority to revoke the divorce".

9. In similar situation, this Court in Princess Aiysha Yasmien Abbasi v. Maqbool Hussain Qureshi and 2 others (PLD 1979 Lahore 241) held that where Talaq is through an agreement and mutual consent of the parties, it will be governed under section 8 of the Ordinance, 1961 and agreement will be valid rictice under section 8 read with section 7 of the Ordinance, 1961. In such situation, Talaq on the basis of Muba 'arat is irrevocable by husband and the Chairman Union Council has no authority except to state that proceedings conducted under section 7 had not succeeded and he had nothing more to do in the case. The relevant observation is reproduced hereunder:- "In the light of above discussion, the Chairman had no authority except to state that proceedings conducted under section 7 had not succeeded and that he had nothing more to do in the case. His observations that no recourse had been taken to the provisions of section 7 of the Muslim Family Laws Ordinance, 1961, and that "the agreement reached between the two matrimonial parties on 28-6-1977 cannot be treated as a notice of Talaq" are without lawful authority and without any legal effect".

10. The aforesaid proposition of law beside the case of Mst. Shamshad Main (supra) is also reiterated in Muhammad Shahbaz Ahmad v. Sher Muhammad and another (1987 CLC 1496) and Mst. Ambreen Shah v. Chairman, Union (Arbitration) Council/Administrator, Union Committee and others (2002 MLD 778 (Lahore). The august Supreme Court in Mst. Kaneez Fatima v. Wall Muhammad and another (PLD 1993 SC 901), where it was held that in cases where divorce is effected with consent of both the parties and confirmed in writing under their own undisputed signatures, section 7 of the Ordinance ibid should not be strictly construed and sending a notice to the Chairman Union Council is merely a formality.

11. In view of the rule in the precedent cases and settled provision of law, I am of the view that in case of Talaq Muba'arat, the husband has no authority to revoke the divorce and Chairman Union Council has no authority except to state that proceedings conducted under section 7 of the Ordinance, 1961 did not succeed and accordingly issue the certificate of effectiveness of Talaq.

12. For the reasons discussed above, this writ petition is allowed and the respondents Nos.1 and 3 are directed to issue "Certificate of Effectiveness of Talaq" to the petitioner in pursuance of divorce deed dated 10-5-2012 forthwith. AG/S-112/L Petition allowed.