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Writ Petition No. 854 of 1972, decided on 6th April 1976.

-- S. 7(l), (3)-Talaq can be in any form including biddat-Special consequences of talaq-ul-biddat, held, would be removed and talaq simpltciter would become effective on expiry of 90 days after receipt of notice by Chairman unless revoked earlier.

- S. 7 "Pronouncement" and "revocation" of talaq-Terms not having been defined in Ordinance to be governed by general Muslim Law-"Pronouncement" must be conscious and independent act-Wife denying or disproving two essential requirements : (i) pronounce ment of talaq and (ii) receipt of copy of notice by her-Fact that husband proved third requirement that he gave Chairman "notice in writing of having done so"-Held, would not amount to compliance of mandatory provision of S. "(1), in circumstances of case.

Howsoever short the time lag between the two acts of pronouncement and sending the notice may be, yet the intention of the law-makers was that, the "pronouncement" of the talaq must be conscious and independent act. The term "pronouncement" has not been defined in the Ordinance, therefore, the ordinary Muslim Law on pronouncement of a divorce shall continue to apply notwithstanding the provisions of Muslim Family Laws Ordinance. For example, if a wife denies or disproves the two essential requirements 1. one, pronouncement of talaq and two, the receipt of the copy of the notice by her ; then notwithstanding the fact that the husband is able to prove the third requirement namely, that he gave the Chairman "a notice in writing of his having done so" (i.e. pronounced the talaq), the mandatory provisions of subsection (1) of section 7 would not be deemed to have been complied with. Similarly, the word "revocation" has not been defined in the Ordinance nor any procedure has been prescribed as to how the talaq could be revoked. Applying the same reasoning qua the "pronouncement of talaq to "revocation" thereof, it is held that the general Muslim Law would govern: all aspects of revocation-procedural and substantive.

-- Art. 199-Writ-Mixed point of law and fact needing enquiry and determination-Not gone into in writ jurisdiction.-[Writ].

Muhammad Hussain for Petitioner.

Virasat Hussain Naqvi for Respondent No. 1.

Nemo for Respondents Nos. 2 and 3.

A wife has through this writ petition called in question the judgment and decree passed by a learned Family Judge (affirmed by the appellate Court) for restitution of conjugal rights in favour of the respondent (husband).

2. The parties were married about 15 years back. Out of the wedlock there were three surviving children when the petition was filed. Through an agreement dated 15-10-1969 the parties agreed on divorce in consequence whereof on the same day they executed an agreed divorce deed (Annexure B). All the relevant documents have not been produced in this Court but it appears from the facts mentioned in the impugned judgments that the agreement and the divorce deed bad been sent to the Chairman of Union Council Behal (wrongly mentioned as Mabil) who issued the certificate of effectiveness of divorce (exhibited as D. 2 at the trial). According to the certificate the divorce was effective after 17-1-1970. The place of residence of the petitioner at the time of divorce (with her parents), it is stated, was within the area of Union Council, Behal. The respondent sent notice of revocation of divorce on 9-12-1969 to Chairman of Union Council Notak within whose jurisdiction he (the respondent) had his ordinary residence. It appears that some proceedings were held by the Chairman of Notak before whom allegedly both the parties appeared and he on 15-1-1970 issued a certificate of revocation of divorce (exhibited before the trial Court as P. 1). It may be mentioned here that neither the certificate of divorce by Chairman of Behal dated 17-1-1970 nor the certificate of revocation dated 15-1-1970 issued by the Chairman of Notak have been produced in this Court.

3. Before the learned Family Judge the respondent while admitting the execution of the agreement and divorce deed relied on the revocation of divorce as evidenced by certificate dated 15-1-1970 ; while the petitioner heavily relied on the divorce deed and agreement dated 15-10-199 and the certificate of divorce dated 17-1-1970. The respondent also examined himself as his witness. The solitary issue as to whether the plaintiff/respondent had divorced the petitioner/defendant, was decided by the learned Family Judge against the petitioner and accordingly the suit of the respondent was decreed. He held that respondent was a shia and that being so, the divorce deed containing talaq-ul-biddat was no talaq at all by the shia husband. He also held that at the time of the talaq the petitioner was residing with the respondent, therefore, Union Council Notak had the jurisdiction in the matter. The notice of divorce could not be sent to the Union Council Behal. Accordingly, the certificate issued by Union Council Notak of revocation of divorce was relied upon and certificate of divorce issued by Union Council Behal was ignored.

4. The learned appellate Court was requested by the petitioner to admit additional evidence with regard to her Nikah with another person after the divorce had become effective on 17-1-1970, but the prayer was not allowed. The learned District Judge while dismissing the appeal held that the certificate of divorce dated 17-1-1970 was unacceptable because the local Council of Behal had no territorial jurisdiction nor was the initial notice of talaq submitted to it by the respondent. On the other hand, the learned Judge accepted the jurisdiction of Union Council Notak to pronounce upon the question of talaq and its revocation.

5. Section 7 of the Muslim Family Laws Ordinance, 1961 reads as follows :-

"7.-(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman a notice in writing of his having done so, and shall' supply a copy thereof to the wife.

(2) Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.

(3) Save as provided in subsection (5) talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman.

(4) Within thirty days of the receipt of notice under subsection (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in subsection (3) or the pregnancy, whichever later ends.

(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective."

Provision has been made in the 'West Pakistan Rules' framed under Muslim Family Laws Ordinance, 1961 with regard to the territorial jurisdic tion of Local Councils, under section 7 (1) of the Ordinance, Rules 3 (b) sad 3-A read as follows

"3. The Union Council which shall have jurisdiction in the matter for purpose of clause (d) of section 2, shall be as follows, namely :-

(a) .

(b) in the case of. a notice of talaq under subsection (1) of section 7, it shall be the Union Council of the Union or Town in which the wife in relation to whom talaq has been pronounced was residing at the time of the pronouncement to talaq ; and

(c) ..

3-A. Where the whereabouts of the wife who is to be supplied a copy of the notice of talaq under subsection (1) of section 7 of the Ordinance, are not known to the husband and cannot, with due diligence, be ascertained by him, he may, if so permitted by the Chairman give notice of the ralaq to the wife through her father, mother, adult brother or adult sister, or if their whereabouts are not known to the husband or cannot, with due diligence, be ascertained by him, he may with the permission of the Chairman, serve the notice of talaq on her by publication in a newspaper, approved by the Chairman, having circulation in the locality where he last resided with the wife."

It is mentioned in the judgment of the learned Family Judge that accord ing to the respondent, the petitioner had left his house six months before ,.the filing of the suit (for restitution of conjugal rights on 2-3-1970) for her parents house and had not by then come back to him. He had also asserted that with the help of the influential men of the Illaqa he had tried to persuade her to return to him but she and her parents refused and when he learnt that she was going to marry another man, he filed the suit. If this assertion in the pleadings of the respondent is correct and even if the petitioner's assertion that she for a long time had been residing with her parents be ignored, it has been argued that the respondent's own case was that for the last six months before the filing of the suit, namely, from 2-9-1969 to 2-3-1970 she was residing in the house of her parents, which it is stated is within the territorial limits of Union Council Behal. Both the learned Courts below have failed to notice this aspect. Thus, looked at, on the date of the divorce when the agreement and the talaqnama were executed on 15-10-1969 the petitioners it appears, was residing within the territorial limits of Union Council Behal. That being so, prima facie, rule 3(b) has been contravened. The question of territorial jurisdiction of two Union Councils with regard to divorce and its revocation has been decided without consider ing, allegedly admitted facts and inferences therefrom ; and in any case due enquiry in this behalf has not been held. The impugned judgments would, therefore, be rendered without lawful authority.

6. In the circumstances of this case a wrong decision on territorial jurisdiction of the Union Council would lead to serious consequences. If Union Council Behal had the jurisdiction with regard to the notice of talaq as also the proceedings on such a notice, presumably the notice of revocation and its certificate could be issued only by that Council and not by the other Council (Notak). This being a matter of territorial jurisdiction the learned Family Judge could have held further enquiry on the question so as to give -correct verdict on the subsidiary issues relating to notices of divorce and revocation thereof.

7. There is another aspect of the matter. The learned Family Judge held that the talaq as described in the divorce deed (Annexure B) was talaq tul-biddat. He also held that respondent being a Shia, such a talaq could not operate as divorce. I agree that the talaq could not 'be treated as talaq-ul-blddat with all its necessary consequences ; but I do not agree with him on the question that it was no talaq at all. Subsection (1) of section 7 of the Ordinance provides that the 'pronouncements' of talaq after the enactment of the Ordinance, could be "in any form whatsoever". Thai intention of the law makers it appears, was that even if the talaq is in any particular form including biddat, it will have effect in accordance with the provisions contained in section 7. The special consequences of talaq-ul-blddat would be removed and the talaq (simpliciter) in question, in this case, would. become effective on the expiry of 90 days after the receipt of notice by the Chairman unless revoked earlier (See subsection (3) of section. 7). Thus; talaq having admittedly been pronounced on 15-10-1969 through a jointly executed divorce deed (Annexure B), it would normally have become effective on the expiry of 90 days after the receipt of notice by the Chairman.

8. The next question to be determined is that even if Union Council Notak has jurisdiction qua revocation, whether in law the divorce pronounced on 15-10-1969 through a jointly executed deed could at all be revoked. Section 7 provides that as soon as may be after a husband makes the "pronouncement" of talaq, he shall give a notice to the Chairman and shall also supply a copy thereof to the wife. The word "after" is very significant. It appears that pronouncement is an independent act from sending of the notice to the Chairman. It is after the pronouncement that the notice is to be sent to the Chairman. It is possible that in one sitting the divorce is pronounced and immediately thereafter as the very next act, the sending of the notice to the Chairman about the pronouncement takes place.

Howsoever short the time-lag between the two acts of pronouncement and sending the notice may be, yet the intention of the law makes was that the "pronouncement" of the talaq must be conscious and independent act. The term "pronouncement" has not been defined in the Ordinance, therefore., the ordinary Muslim Law on pronouncement of a divorce shall continue to a apply notwithstanding the provisions of Muslim Family Laws Ordinance. For example, if a wife denies or disproves the two essential requirements ; one, pronouncement of talaq and two, the receipt of the copy of the notice by her ; then notwithstanding the fact that the husband is able to prove the third requirement namely, that he gave the Chairman "a notice in writing of his having done so" (i.e., pronounced the talaq), the mandatory provision of subsection (1) of section 7 would not be deemed to have been complied with. Similarly, the word "revocation" has not been defined in the Ordinance nor any procedure has been prescribed as to how the talaq could be revoked. Applying the same reasoning qua the "pronouncement" of talaq to "revocation" thereof, it is held that the general Muslim Law would govern all aspects of revocation-procedural and substantive.

9. It has been argued by the learned counsel for the petitioner that the pronouncement in this case through a written talaqnama, admittedly executed by both the parties by agreement would constitute khula . Under Muslim Law, it is further argued, such a talaq (khula) could not have been revoked at all. He has also contended that the respondent had divorced the petitioner in consideration of Rs. 1000. In other words he has tried to show that subject to the condition qua limitation of 90 days, the divorce became effective ; and on account of the contents of the divorce deed it being a khula', the same could not be revoked even if a notice of revocation was sent by the respondent. This is a mixed point of law and fact. Proper enquiry has not been held on the questions involved therein, e. g., the connotation and intention underlying the agreement so as to find the nature of talaq as khula, the consideration of Rs. 1000 and similar related questions have neither been thoroughly enquired into nor determined with certainty. I would, therefore, refrain from making any further comment on this particular aspect of the case.

10. The learned Courts below proceeded on wrong assumption that the taloq in this case was no talaq which as held earlier, is an incorrect view of the law involved. They also failed to appreciate the law relating to "pronouncement" of talaq, giving of notice about pronouncement and sending of the copy of the notice. I have also bold that the learned Courts below have not correctly appreciated the question of territorial jurisdiction of the two Union Councils. Moreover, as held in the preceding para, due enquiry about the nature of agreement, divorce deed, consideration etc. qua the consequences thereof, has not been hold.

11. For all the above reasons this petition is allowed. Both the impugned judgments are declared as without lawful authority. The case is, remitted to the learned Family Judge for retrial In accordance with law.

There shall be no order as to costs.

S. Q. Petition allowed.

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