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Constitutional Petition No. S‑13 of 1983, decided on 7th February, 1983.
‑‑ S. 7 (1) read with West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, r. 3(b)‑Provisional Constitution Order (I of 1981), Art. 9‑Talaq‑Pre‑admission notice‑Failure Certificate‑Wife residing at K but copy of notice endorsed by husband to Chairman Arbitration Council at M who issued failure certificate‑Held failure certificate could only be issued by Chairman of area where wife resid ing at time of pronouncement of Talaq and copy of notice should have been endorsed to him‑Failure Certificate issued by Chairman at M declared illegal.
Ameer Ahmed Khan for Appellant.
K. A. Wahab with Mumtaz Ahmed for Respondent No. 1.
Date of hearing : 7th February, 1983.
A pre‑admission notice was issued to the respondents on 1st February, 1983, in response thereto the learned counsel for respondent No. 1 has filed counter‑affidavit today. The contention; involved in the petition is that the failure certificate issued by the Chairman, Arbitration Council, Mirpurkhas, after having received notice finder section 7 of the Family Laws Ordinance, 1961 is wholly without jurisdiction as at the relevant time the petitioner who was the wife of respondent No. 1 was residing admittedly at Karachi and in accordance with the rule 3 (b) of the West Pakistan Rules under the Family Laws Ordinance, 1961 such notice should have been given to the Chairman of the area where the petitioner was residing at the relevant time s. g. when the divorce was given. The contention raised on behalf of the petitioner appears to be correct 'on the language of sub‑rule (b) of rule 3 and I accordingly admit this petition to regular hearing. However, as the contesting respondent has appeared on a pre‑admission notice and I have heard him on length on this point I will dispose of this petition as a regular petition.
2. Under section 7 (1) of the Muslin Family Laws Ordinance, 1961 if, a person wishes to divorce his wife he is required to send intimation of the Talaq to the Chairman in writing having done so and is also required to supply a copy thereof to the wife: Under sub‑rule (b) of rule 3 of the rules framed under Muslim Family Laws Ordinance such a notice of Talaq' is to be given to the Chairman of the Union Council where the wife at the rele vant time was residing when the 'Talaq' was pronounced. The learned coun sel for respondent No. 1 has produced before me a copy of notice under section 7 (1) of the Muslim Family Laws Ordinance, 1961 which shows that at the relevant time when the 'Talaq' was pronounced by the respondent No. 1 the petitioner was residing at Quarter No. 61 Korangi, Bus‑stop 51, Karachi‑31. In this view of the matter the copy of the notice under section 7 (1) of the Muslim Family Laws Ordinance, 1961, should‑ have been endorsed by the respondent No. 1 to the Chairman of the Korangi Area where the petitioner was residing at the time the Talaq' was pronounced and he alone could issue the failure certificate as required under the law. The failure certificate issued by the Chairman of the Arbitration Council, Mirpur khas is therefore of no legal value and effect and I accordingly declare it as such. It will be open to the petitioner to send a copy of the notice under section 7 (1) of the Muslim Family Laws Ordinance, in accordance with rule 3 (b) of the Rules framed under Muslim Family Laws Ordinance to the Chairman concerned who could take proceedings thereon in accordance with the law. The petition is allowed accordingly but there will be no order as to costs.
M. Y. H. Petition allowed.
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