2009 PLP 1478 (MLD)

ZUBDA-TUL-HUSSAIN, J.

The unfortunate spouses namely Ambreen Afshan Mahmood (the petitioner) and Abid Mahmood (respondent No.2), despite being well-educated and well placed in the society both socially and economically, have not been able to pull on with each other for their harmonious matrimonial life. Respondent No.2 administered the divorce and notified the same to respondent No.1, Chairman of the Arbitration/Union Council No.40, Sallamat Pura, whereupon certain proceedings were taken and ultimately a certificate for the effectiveness of divorce was issued through the impugned order. Respondent No.2 has since entered into a second contract of marriage.

2. The legal intricacies apart, the petitioner is otherwise well aware of the fact that the respondent has pronounced divorce to her for which consequential proceedings (though disputed) before the Arbitration/ Union Council have also been taken. May be the agony and the damage suffered by the petitioner has no compensation, but the parties still need to give a serious thought as to whether the protracted and hotly contested litigation is likely to serve tangibly useful purpose for any of them.

3. There is no dispute as to the genuineness of the divorce deed, dated 19-12-2007. The father of the petitioner has been pursuing the matter before the Arbitration Council and by the averments of the petitioner in the writ petition, it is more than obvious that the factum of divorce is well within her knowledge. The academic and the practical questions raised in the petition shall, of course, be dealt with in the paragraphs to follow, but at this stage, it can safely be observed that the existing legal sphere of this country regarding the divorce and dissolution of marriage, has two aspects. One is the effectiveness of the divorce in Shariah, which flows from the Holy Quran and Sunnah of our Holy Prophet Hazrat Muhammad '(S.A.W.) and as such, has a special legal and practical significance under Article 2-A and Article 2(27) of the Constitution of Islamic Republic of Pakistan, 1973. The scope and extent of the provisions of the Constitution and their application to the existing laws has already been considered by the Superior Courts of this country in a number of cases. The same, therefore, need not be dilated upon in the present proceedings especially and for the added reason that the scope of the issue involved in the present petition is also limited.

4. In a number of cases under Hudood laws, it has been observed by the Hon'ble Superior Courts that the divorce and its pronouncement becomes effective and the failure to send a notice to the Chairman of the Arbitration Council does not render the divorce ineffective in Shariah. I am conscious of the fact that the finding on this issue in the case of "Mst. Zahida Shaheen and another v. State and another" (1994 SCMR 2098) may have a different- connotation and the context for the purpose of the proposition under consideration in this case, but the ratio for the effectiveness of the divorce under the Shariah has an effect in rem. Thus, the divorce pronounced by the respondent to the petitioner, which, as already stated, is by now well within her knowledge and notice may be equated with a valid divorce in terms of the principles of Shariah as laid down in the Holly Quran and Shariah of the Holly Prophet Hazrat Muhammad (S.A.W.).

5. There is no doubt that if under the law of the country, the divorce is not effective, the petitioner continues to have certain rights and liabilities. Primary question for determination in the present proceedings is whether the divorce deed, dated 19-12-2007 operates as an effective divorce deed, dated 19-1272007 operates as an effective divorce or it has no legal effect against the rights of the petitioner as wife of respondent No.2. As stated above, the factum of divorce deed as such, is not in dispute. And even if it is disputed by the petitioner, the ' same having been issued by respondent No.2 and having become the subject of the proceedings before the arbitration council as well as the present petition, the existence and execution of this document by respondent No.2 cannot be disputed.

6. The case of the petitioner is that the submission of the divorce deed with a notice before the Arbitration Council could not ipso facto operate as the dissolution of marriage, because purpose of proceedings of the Arbitration Council is to explore and to provide to the parties the opportunity of re-conciliation, whereas the petitioner was never served with a notice by the respondent or the Arbitration Council, because the notice by virtue of Rule 6 of the Family Court Rules had to be served upon the petitioner in the United States of America through the Embassy of Pakistan, but this notice was received in the Embassy of Pakistan on 26th of March, 2008, whereas the meeting of the Arbitration Council for which the notice was sent to the petitioner, was fixed for 24th March, 2008. In other words, the notice was received and dispatched by the Embassy of Pakistan, when the date of hearing before the Arbitration Council had already expired. In this behalf, the petitioner has placed on record the copy of the letter of the Embassy of Pakistan, which also contains an endorsement to the Chairman Arbitration Council, recommending that a fresh notice giving sufficient time to appear, may be sent for onward transmission to the petitioner.

7. It is also a fact that the father of the petitioner has been appearing before the Arbitration Council in relation to the proceedings on the notice for divorce. It is admitted fact that the father of the petitioner is also holding a power of attorney on behalf of the petitioner, but it also cannot be denied that the power of attorney does not authorize the petitioner's father to pursue the proceedings before the Arbitration Council as well. What I mean to say is that despite holding a power of attorney, the father of the petitioner was not competent to represent the petitioner before the Arbitration Council.

8. All the same, the above facts tend to show that the father of the petitioner, being an attorney for the petitioner in other related family litigation, the petitioner was not only aware of the proceedings of the Arbitration Council on the notice of divorce, but she herself somehow, was aware through her father or otherwise, of the notice of the proceedings before the Arbitration Council. In this background, the fact that the impugned order of the Arbitration Council was passed about a month later than the date sought to be notified to the petitioner through the Embassy would also not be irrelevant altogether.

9. In the case of "Mst. Sheeman Farooq v. Chairman Union Committee Ward No.4, Lahore Cantt." 1996 CLC 673, a Bench of this Court also dilated upon the effectiveness of the divorce on expiry of 90 days of the receipt of notice by the Chairman Union Council under section 7 of the Muslim Family Laws Ordinance, 1961. The facts and the dimensions thereof culminated on the authority and jurisdiction of the Chairman Union Council to question the validity of Tallaq notice, but it was categorically laid down that the divorce ipso facto became effective on the expiry of 90 day of the notice under section 7 of the Muslim Family Laws Ordinance, 1961. In the instant case of the petitioner, it cannot be disputed that the period much beyond 90 days, had expired from the date of notice of the divorce when the impugned certificate for its effectiveness was issued.

10. In the given situation, especially keeping in view all the relevant facts of service of notice on the Chairman Union Council, the initiation of the proceedings by the Arbitration Council, the repeated appearance of the father of the petitioner in these proceedings and actual knowledge of the petitioner about the pendency and fate of these proceedings, in - spite of it the stress of the petitioner to declare the proceedings ineffective and the effect of the pronouncement of the divorce in Shariah neither justifies interference with the impugned order or certificate nor warrants exercise of discretion in her favour under Article 199 of the Constitution of Islamic Republic of Pakistan.

11. This writ petition is, therefore, dismissed leaving the parties to bear their own costs. H.B.T./A-208/L Petition dismissed.