2009 PLP 2331 (YLR)

SAJJAD ALI SHAH, J.

Through this petition the petitioner seeks quashment of the Divorce confirmation certificate dated 14th March, 2008, herein under referred to as the impugned certificate and a declaration to the effect that respondent No.1 is still his legally wedded wife. Briefly stated the facts are that the petitioner on 19-8-2006 pronounced divorce upon respondent No.1 through SMS, the written extract whereof is placed on record by the petitioner, himself, at page

23. The petitioner claims that after pronouncement of divorce within no time the same was withdrawn by way of recourse. However, the respondent No.1 by concealing the fact of recourse initiated proceedings under section 7 of the Muslim Family Laws Ordinance, 1961, hereinafter referred to as `the said Ordinance, before the concerned Arbitration Council (respondent No.2) who without properly providing an opportunity of hearing to the petitioner confirmed the "Talaq" by way of issuing impugned certificate. Mr. Taza Gul Khatak, learned counsel appearing for the petitioner, contended that since no proceedings under section 7 of the said Ordinance were initiated by the petitioner, therefore, respondent No.2 could not have issued the impugned certificate. It was next contended that since the petitioner claimed to have made recourse and respondent No.1 denied, therefore, the impugned certificate could not have been issued, without recording evidence. On the other hand, Mr. Muhammad Masood Khan, learned counsel for respondent No.1, has invited my attention to the admitted extract of SMS dated 19-8-2006 in which filthy language has been used by the petitioner and three divorces with the margin of 10 seconds were pronounced. Learned counsel in order to show that the petitioner had full knowledge of the proceedings before respondent No.1, has further invited my attention to the proceedings taken place before respondent No.2 which reflect that respondent No.2 had spoken to the petitioner on telephone and the petitioner's parents had appeared before respondent No.2. Mr. Masood lastly contended that the petitioner has admitted the pronouncement of divorce and thereafter the petitioner never met with respondent No.1, therefore, the question of withdrawing divorce by way of recourse does not arise. Learned counsel has further placed reliance on the judgment of Shariat Appellate Bench of Honourable Supreme Court in the case of Allah Dad v. Mukhtar and another (1992 SCMR 1273) and Federal Shariat Court in the case of Allah Rakha and others v. Federation of Pakistan (PLD 2000 FSC 1) wherein it has been held "that divorce becomes effective even in the absence of notice to the Chairman Arbitration Council under section 7 of the `said Ordinance' to hold that divorce was ineffective in the absence of notice to the Chairman was against injunctions of Islam. I have heard the learned counsel for the respective parties and have perused the record. As to the first contention of the learned counsel regarding non-issuance of notice by the petitioner under section 7 of the `said Ordinance', suffice it to observe that there is nothing in section 7 or in any other provision of said Ordinance which prevent divorcee from issuance of notice under section 7 of the said Ordinance' seeking confirmation of Divorce. In eases, where a husband pronounces a divorce upon his wife and does not dispute the pronouncement before the Chairman Arbitration Council, then the fact of issuance of notice under section 7 of the `said Ordinance' by divorcee wife becomes irrelevant. As to the second contention, a perusal of the admitted extract of SMS reveals that the petitioner has used very filthy language against respondent No.1 which leads to the conclusion that the parties had very strained relations since August, 2006. Even before pronouncement of Talaq, the petitioner in the said SMS had asked respondent No.1 to abort the new comer she was carrying. There is nothing on record to prove that after pronouncement of divorce, the parties had rejoined. The petitioner further has not taken such plea before the Chairman Arbitration Council, on the contrary as evident from the certified copy of proceedings of respondent No.2, the petitioner throughout was aware about the pendency of the proceedings and had on 23-2-.2008 upon telephonic contact by respondent No.2 refused reconciliation. The parents of the petitioner also appeared before the Chairman Arbitration Council and made written application but neither disputed the factum of divorce nor informed him that the divorce was withdrawn. Even otherwise, these being a question of fact cannot be decided in the instant petition. In view of the fact that this petition contains disputed question of fact which cannot be resolved in this petition, the petition consequently is dismissed in limine along with listed application. H.B.T./M-141/K Petition dismissed.