1994 PLP 1115 (MLD)

In this Constitutional petition legality of proceedings taken by respondent No.1 in pursuance of notice of divorce allegedly issued by Sarfraz Hussain deceased before his death and certificate of effectiveness of the same issued under the Muslim Family Laws Ordinance, 1961, have been called in question.

2. Sarfraz Hussain deceased was the husband of the present petitioner. He allegedly pronounced divorce to the petitioner and issued a notice to the Chairman for completion of formalities to make it effective under the Family Laws Ordinance, 1961. Respondent No.1 commenced proceedings in pursuance thereof. During the pendency of those proceedings Sarfraz Hussain died. Respondent No.1 issued a certificate under the said Ordinance that the said divorce had become effective there being no conciliation between the parties before the expiry of the period of 90 days, the divorce otherwise having not been withdrawn before the expiry of the said period.

3. Respondents Nos.2 to 8 who have been impleaded as respondents through separate order claim that they are the heirs of Sarfraz Hussain deceased and the petitioner having been divorced ceased to be his wife, therefore, after his death as his widow she was not entitled to inherit any share in his property. In their application bearing C.M. No.3087 of 1992 they admitted that Sarfraz Hussain deceased had Dual Nationality i.e. Nationality of Pakistan as well as of Denmark where he settled.

4. The main objection of the petitioner against the said proceedings as highlighted by her learned counsel was that Sarfraz Hussain deceased having acquired Nationality of Denmark ceased to be citizen of Pakistan by virtue of section 14 of the Citizenship Act, 1951, as such, he could` not invoke the provisions of Family Laws Ordinance, regarding effectiveness of Talaq which according to the said Ordinance could be invoked only by a citizen of Pakistan, therefore, any proceedings commenced by respondent No.1 on the notice allegedly issued by him and certificate of effectiveness of divorce given by him are nullity. He relied upon judgment reported as Saima Rashid v. Imran Riaz Imami and another 1993 CLC 1331.

5. The argument has force: Learned counsel for respondents Nos.2 to 8 has not been able to satisfy me that the provisions of Family Laws Ordinance, 1961 were attracted in this case. He, however stated that Sarfraz Hussain deceased otherwise being Muslim, therefore, as Muslim he could divorce the petitioner at any time and as per petitioner's own showing the provisions of Family Laws Ordinance being not applicable the divorce given by the deceased Sarfraz Hussain to the petitioner became effective the moment it was pronounced, as such, she being not the widow of the deceased could not inherit the property of the deceased.

6. Since the very factum of pronouncement of divorce by the deceased has been denied by the petitioner which being a disputed question of fact cannot be decided without holding elaborate inquiry and recording of evidence which cannot be done in Constitutional jurisdiction. Suffice it to say, that the proceedings taken by respondent No.1 and consequential certificate issued by him declaring that the Talaq had become effective are to be set aside leaving the parties to get the abovementioned disputed question of fact decided by the Court where the question of inheritance of the property of the deceased may be raised by one party against the other or may be pending which shall be decided after recording evidence in accordance with law, for, if the pronouncement of divorce to the petitioner is not established she would certainly be entitled to inherit the property of the deceased as her widow and if it was proved that she had been divorced in accordance with law before his death by Sarfraz Hussain deceased the question of inheritance shall be decided accordingly.

7. For the foregoing reasons and subject to the observations made above this writ petition is accepted, proceedings taken by respondent No.1 on the notice of Talaq allegedly issued by Sarfraz Hussain deceased and certificate of effectiveness of said Talaq issued by respondent No.1 are hereby declared to have been taken and issued without lawful authority and of no legal effect and quashed. The parties are left to bear their own costs. M.Z.S./S-402/L Proceedings quashed.