1998 PLP 85 (MLD)

2. It is said that during petitioner's stay with respondent No.1 in U.S.A relations between the parties became strained. In the meanwhile, Tahir Hameed Khan, respondent No.l, applied for divorce under the United States Domestic Relations Law. Consequently, b` order of the Supreme Court of the State of New York dissolution of marriage between the parties was recorded on 29-1-1991. Later, on receipt of a communication, the Court re-opened the proceedings and vacated the divorce decree. Respondent No.l, thereupon, by a notice to the concerned Chairman, Union Council, dated 1-2-1991, divorced the petitioner. In pursuance thereof, an Arbitration Council was constituted. During the proceedings of the Arbitration Council, the articles of dowry, including jewellery, were received back by the petitioner's father who represented her before the Council. Hence, by its order dated 27-8-1991, the Arbitration Council endorsed that the divorce pronounced by respondent No.l had become effective. The petitioner has now by this Constitutional petition assailed the said order of the Arbitration Council, Ward No.2, Jhang Bazar, Faisalabad, dated the 27th August, 1991, pronouncing effectiveness of Talaq given by respondent No. 1 claiming the same to be illegal as he, being a citizen of U.S.A., could not invoke the provisions of the Muslim Family Laws Ordinance, 1961.

3. Respondent No.l has vehemently opposed the petition on the ground that despite his acquisition of citizenship of the United States, he could divorce the petitioner under the Sharia.

4. I have heard the parties at length. Ms. Hina Jillani, Advocate, the learned counsel for the petitioner has mainly relied upon the findings of this Court in Mst. Saima Rashid v. Emran Riaz Imani (1993 CLC 1331). In that case both the husband and wife were citizens of the United States and on the objection of the wife, the learned Single Judge held the proceedings before the Chairman Arbitration Council to be without lawful authority and of no legal effect. In this connection, the learned Counsel referring to the provisions of the Citizenship Act, 1951, rightly pointed out that a citizen of United States cannot have dual nationality i.e., of United States as well as of Pakistan, as the laws of the former country do not allow holding of more than one nationality. She also relied upon Maqsood Ahmad Malik v. Mst. Fouzia Farhana Quddus and other (1991 SCMR 681). In this case, both the parties were originally Pakistani citizens. They migrated to the United States and acquired American citizenship. Later on, they got married in that country in accordance with the Muslim rites performed in the Islamic Centre, Washington by a Muslim Nikahkhawan duly appointed by the United States Government for the purpose. Consequently, the husband came to Pakistan and pronounced Talaq in accordance with the Muslim Family Laws Ordinance, 1961 and initiated proceedings thereunder for finalization of the divorce. The High Court had held that the Senior Civil Judge/Judge Family Court, Islamabad, who was seized of the matter could not exercise the jurisdiction under section 3 of the Muslim Family Laws Ordinance, 1961. The Supreme Court agreed with the findings of the High Court that the Muslim Family Laws Ordinance, 1961, will not be attracted in the said case but held that the Senior Civil Judge had the jurisdiction to decide the case in accordance with the proper law of the parties applicable to them.

5. Both these authorities, however, are distinguishable. In the instant case, originally both the petitioner and respondent No. 1 were Pakistani citizens. The marriage between them was held in Pakistan in accordance with the provisions of the Muslim Family Laws Ordinance, 1961, and after three years of the marriage only the respondent No. 1 had acquired the citizenship of United States. Subsection (2) of section 1 of the Muslim Family Laws Ordinance, 1961 provides that the said Ordinance "extends to the whole of Pakistan and applies to all Muslim citizens of Pakistan where-ever they may be". By virtue of the provisions of section 13(2) of the General Clauses Act, 1897, whereunder the words in a statute in the singular shall include plural and vice versa, the expression "citizens" shall include one citizen. Meaning thereby that where even one of the party is a Muslim citizen of Pakistan, the provisions of the Ordinance would also be attracted. This provision does not envisage that the Ordinance will apply only if both the parties, more particularly the husband, are Muslim citizens of Pakistan. On the other hand, following the aforesaid principle provisions of the Muslim. Family Laws Ordinance 1961, could be invoked where even one of the party to the marriage is a Muslim citizen of Pakistan.

6. Further, in the instant case, admittedly both the parties had joined the proceedings before the Arbitration Council without any. objection to the jurisdiction. During the said proceedings, articles of dowry, including, jewellery were returned by respondent No. 1 to the representative of the petitioner. The learned counsel representing respondent No. 1 has in this connection rightly relied upon Hafeez-ud-Din v. Mian Khadim Hussain and another PLD 1965 (W.P.) Lahore 439 wherein a Division Bench had held as under:-- "A party litigating must act consistently. It is a wholesome doctrine of law that a party cannot be allowed to play fast and loose; blow hot and cold and approbate and reprobate, to the detriment of his opponent. Where a person knowingly and wilfully invites the Court to adopt a procedure, he cannot be permitted to turn round and blame the court for the very same procedure which he himself invited the Court to follow. When the conduct of the applicant has been such as to disentitle him to the assistance of the Court, no writ can be issued at his instance even though the impugned order may, in fact, be found to have been passed by the authority concerned without any jurisdiction. " Similar view was taken in Ghulam Mohayyudin v. Chief Settlement Commissioner (PLD 1964 SC 829) as reproduced below:-- "The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed, should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by the person himself."

7. The learned counsel for the petitioner also referred to Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf (PLD 1963 Supreme Court 51) and Mrs. Marina Jatoi, v. Nuruddin K. Jatoi, and another (PLD 1967 Supreme Court 580). However, in Syed Ali Nawaz Gardezi it was held that as regards effect of Talaq (divorce) in the case of a marriage entered into in England according to English Law, the trend of modern authorities appears to be that if the law of the domicile permits a dissolution of marriage by the pronouncement of Talaq, the divorce may be recognized as valid, under the rules of Private International Law, in other countries as well. Likewise, in Marina Jatoi case, the Supreme Court was of the view that "the right of the Muslim husband to grant a divorce to his wife in respect of the marriage recognized by Muslim Law does not appear to have been turned away by any statute current in Pakistan".

8. Even if it is presumed that the Arbitration Council had no jurisdiction to entertain the notice of Talaq given by respondent No. 1 under the provisions) of section 7 of the Muslim Family Laws Ordinance, 1961, the right of talaq vested with a husband under the Sharia has not been taken away from a Muslim irrespective of the country to which he belongs. In view thereof, despite the restrictions contained in the Muslim Family Laws Ordinance, 1961, the husband's right of talaq prevails as given to him under the Quranic Injunctions. In Allah Dad v. Mukhtar (1992 SCMR 1273), it was held by the Supreme Court' that the Muslim Family Laws Ordinance, 1961, shall have to be interpreted and construed in accordance with the Injunctions of Islam as laid down under the Holy Qur'an and Sunnah and in case of any conflict between the existing law, the Injunctions of Islam shall prevail. In a recent judgment (Muhammad Hanif and others v. Mukarram Khan and others (PLD 1996 Lahore 58), a Division Bench of this Court has held that even if no notice of divorce, as required under section 7 of the Muslim Family Laws Ordinance, 1961, is given to the Chairman Local Council, it will not make a divorce ineffective under Sharia.

9. In view of the above, the divorce pronounced by respondent No. 1 on 1-2-1991, had taken effect under the Islamic Injunction even if the notice to the Arbitration Council intimating such talaq or subsequent proceedings taken in this regard and the certificate issued by the Arbitration Council endorsing the effectiveness of talaq are ignored. As stated above, at the time of pronouncement of talaq at least the petitioner was a citizen of Pakistan and the law of the land i.e., the Muslim Family Laws Ordinance, 1961, was applicable to her. She had accepted the notice and took part in the proceedings before the Arbitration Council without raising any objection to the jurisdiction of the Council. The proceedings before Arbitration council had finalized on the 27th August, 1991, when the aforesaid talaq was declared to have become effective. She came to this Court through the present Constitutional petition only on the 2nd July, 1995, i.e., after four years. The petitioner, therefore, also suffers from laches which does not warrant any interference by this Court at this belated stage as the talaq under the Sharia has already become effective.

10. The present petition, having no merit is, therefore, dismissed without any order as to costs. A.A./F-38/L Petition dismissed.