2007 PLP 1009 (CLC)

MAULVI ANWARUL HAQ, J.

On 20-12-2000, the petitioner No.1 filed a suit for recovery of dower amount of US $ 10,

000. According to the plaint, she was married to respondent No.1 on 31-3-1988 in USA. Nikahnama was drawn and the said amount was fixed as dower. The respondent had delegated power of divorce to her but he himself divorced her vide divorce document dated 8-9-1998 at Islamabad and a notice was sent to the Arbitration Council. A certificate of effectiveness of divorce was issued on 28-1-1999. One-fourth of the said amount of dower was prompt while the balance was deferred. No part of the dower amount was paid. She accordingly prayed for the said decree. The respondent in his written statement has admitted the factum of marriage and fixation of dower amount. He pleaded that the prompt part of dower was paid on the night of the marriage whereas the balance was also paid to her one month after the marriage. He further stated that he delegated power of divorce to her vide authority letter dated 20-3-1989 and she wrote that she had taken divorce. However, no notice was sent to the Arbitration Council. He admitted having issued a divorce deed and sending a notice to the Arbitration Council, Islamabad, as stated by the petitioner-lady. The issuance of certificate of divorce was also admitted. I may note here that the said spouses were blessed with a daughter as a result of the said wedlock who is with the petitioner. Issues were framed and evidence of the parties was recorded. The learned Judge Family Court held the suit to be barred by time with the findings that the marriage stood dissolved when the petitioner exercised delegated powers of divorce. A first appeal filed by the petitioner was also dismissed by a learned Additional District Judge, Islamabad, on 25-4-2003 upholding the said findings. I may further note here that the petitioner had also made a grievance in the matter of maintenance but learned counsel for the petitioners has opted not to press that part of the writ petition.

2. Learned counsel for the petitioners contends that the impugned judgments and decrees inasmuch as their claim for dower has been rejected on the ground of limitation are without lawful authority. He relies on the provisions of sections 7 and 8 of the Muslim Family Laws Ordinance, 1961 and the cases of Muhammad. Salahuddin Khan v. Muhammad Nazir Siddiqi and others 1984 SCMR 583, Malik Javid Ali and another v. Abdul Kadir and another 1987 SCMR 518 to urge that the divorce become effective only when it was pronounced by the defendant in writing and a notice was sent to the Arbitration Council.

3. Learned counsel for respondent No.1, on the other hand, .supports the impugned judgments and decrees with reference to the case Allah Dad v. Mukhtar and Mst. Rashida Akhtar 1992 SCMR 1273.

4. I have gone through the copies of the record with the assistance of the learned counsel for the parties. I have already reproduced above the contents of the respective pleadings of the parties. The following facts emerged upon reading of the evidence on record: (i) The respondent had in fact delegated the power of divorce to the petitioner. (ii) The said power was exercised by her but no notice was sent to the Arbitration Council. (iii) The respondent sent divorce deed dated 8-9-1998 (Exh.D.4) along with notice Exh.D.5 (under section 7 of the Muslim Family Laws Ordinance, 1961). (iv) The parties joined the conciliation proceedings. (v) No reconciliation took place. (ci) The said divorce became effective upon expiry of ninety days.

5. Section 7 of the Muslim Family Laws Ordinance, 1961, lays down in a mandatory term that in whatever manner a husband pronounces divorce, he shall convey to the chairman, Arbitration Council by means of a notice under registered cover. In absence of any reconciliation, the divorce shall become effective upon expiry of ninety days from the date on which notice is delivered to the said Chairman Arbitration Council. Section 8 of the said Ordinance lays down that the provisions of section 7 shall apply mutatis mutandis in the matter of divorce pronounced by a wife in exercise of delegated right to divorce. The admitted position on record is that no notice was served in terms of section 7 read with section 8 of the said Ordinance, 1961, and the result is that the prescribed period of ninety days never started running so as to make the said divorce effective at any time after the exercise of the said right by the petitioner-lady. The said judgments of the Honourable Supreme Court of Pakistan being relied upon by the learned counsel for the petitioners are to the effect that where no notice is served in the manner prescribed in the said section 7, Talaq pronounced in any manner does to become effective.

6. The learned Courts below have proceeded to dismiss the suit of the petitioner while relying upon the said case of Allah Dad 1992 SCMR 1273. This is a judgment delivered by the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan. This judgment was rendered in a case arising under the provisions of Zina (Enforcement of Hudood) Ordinance, 1979. The clear intent of their Lordships, appearing upon reading of the leading opinion recorded by Mr. Justice Maulana Muhammad Taqi Usmani, is that the rigors of section 7 would not be applicable in relation to criminal liabilities under the said Ordinance. I may note that the facts of the said case were that a private complaint was filed by Allah Dad petitioner before their Lordship alleging therein that his legally wedded wife had eloped with the co-accused and was committing Zina. The defence was that the complainant had divorced the said lady and thereafter she had performed Nikah with the co-accused. This question has been noted in para.8 of the said judgment. The contention raised by the learned counsel for the complainant (the said accused had been acquitted by the learned Courts below) was that although Talaq had been proved yet in absence of any notice to the Chairman, Arbitration Council, in terms of section 7, it had not become effective. His Lordship observed that the provisions of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, have overriding effect on any other law for the time being in force and the question of effectiveness of divorce has to be considered in accordance with the intent and purposes of the said Ordinance, as stated in its preamble, and in case of any conflict between the existing law and the Injunctions of Islam with regard to the validity of a marriage, the latter will prevail. I deem it appropriate to reproduce paragraph 19 of the said judgment appearing at page 507 of the report:-- "Therefore, even if it is assumed that section 7 of the Family Laws Ordinance is a good law, the same cannot affect the validity of a marriage contracted according to Shariah at least to the extent of the criminal liability envisaged in the Ordinance."

7. It will thus, be seen that the said judgment in the case of Allah Dad does not at all derrogate from the law laid down by the Honourable Supreme Court of Pakistan in the said cases of Malik Javid Ali and another as also in the case of Muhammad Salahuddin Khan being relied upon by the learned counsel for the petitioner. I, therefore, do hold that the Talaq pronounced by the petitioner in exercise of her delegated right of divorce never took effect and the Talaq pronounced by the respondent vide Exh.D.4, however, did take effect on the expiry of ninety days from 29-9-1998 when notice was delivered to the Chairman, Arbitration Council, Islamabad. The suit brought on 20-12-2000 was thus, within the period of three years as prescribed in Articles 103 and 104 of the Limitation Act, 1908.

8. The impugned judgments and decrees dismissing the suit of the petitioner for recovery of dower amount on the sole ground that the claim was barred by time are, therefore, declared to be without lawful authority and are set aside. The result would be that the suit filed by petitioner No.1 for recovery of her dower against the respondent shall stand decreed as prayed for. No order as to costs.

9. A copy of this judgment be immediately remitted to the learned District Judge, Islamabad, as also to the learned Judge Family Court, Islamabad. M.H./E-5/L Petition allowed.