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Writ Petition No. 2405 of 1981, decided on 20th June, 1984.

Muslim Family Laws Ordinance (VIII of 1961)--

---Ss. 6(5) & 7--Divorce--Effectiveness--Taiaq becomes effective after expiry of ninety days from date on which notice of Talaq issued by husband delivered to Chairman Union Council unless wife happens to be pregnant at time Talaq is pronounced and in that event Talaq would become effective at end of pregnancy--Effectiveness of Talaq, held, not dependent upon passing any order by Chairman or Deputy Commissioner--Husband remarrying after ninety days of delivering notice of Talaq to Chairman of Union Council--Chairman passing order that since husband had neither appeared before him nor nominated his representative to Arbitration Council--Talaq could not be declared effective--Order of Chairman, held, not tenable and proceedings of case pending against petitioner under S.6(5) of Ordinance for taking a second wife during subsistence of his first marriage declared to be without lawful authority.

Malik Amjad Pervaiz for Petitioner.

Nemo for Respondents.

Date of hearing: 20th June, 1984.

The circumstances leading to the filing of the present writ petition assailing the validity of the decision of the Chairman, Arbitration Council, Gadgore, Tehsil Pasrur, District Sialkot, respondent 2, dated the 16th June, 1979, holding that Talaq pronounced by the petitioner upon respondent 3 could not be made effective and of the Deputy Commissioner, Sialkot, exercising the powers of Controlling Authority, respondent 1, dated the 15th March, 1980, affirming in revision the first mentioned order as also of the proceedings initiated upon the complaint of respondent 2 against the petitioner pending in the Court of Ilaqa Magistrate, Pasrur, respondent 4, may be shortly stated in the following words. Syed Muhammad Tufail Shah, petitioner, pronounced Talaq upon Mst. Ismat Begum, respondent 3. on the 22nd February, 1979, gave notice of the same to the Chairman of the concerned Union Council of Gadgore. and sent a copy thereof to respondent 3. The notice of Talaq was received by the Chairman on the 12th March, 1979, and, therefore, the Talaq was to become effective 90 days thereafter. However, the Chairman passed order on the 16th June, 1979, that as neither the petitioner had appeared before him nor he had nominated his representative to the Arbitration Council he could not declare Talaq to be effective. The petitioner invoked the revisional jurisdiction of the Deputy Commissioner and Controlling Authority, Sialkot, to impugn the legality of the order of the Chairman but the Deputy Commissioner declined to interfere.

2. On the 4th November, 1979, the petitioner married one Mst. Kalsoom whereupon at the instance of respondent 3, respondent 2 filed a complaint before respondent 4 against the petitioner for his having violated the provisions of Muslim Family Laws Ordinance, 1961, inasmuch as he had taken a second wife during the subsistence of his marriage with respondent 2 and had thus committed offence punishable under section 6(5) of the Ordinance.

3. According to the petitioner Talaq had become effective on the 12th June, 1979, that is, 90 days after the notice of Talaq had been delivered to the Chairman on the 12th March, 1979, irrespective of the fact whether or not the Chairman or the Deputy Commissioner was prepared to accept the situation and notwithstanding their impugned orders. No caveat can be entered to the contention of the petitioner in this behalf. Talaq becomes effective under section 7 of the Ordinance after the. expiry of 90 days from the date on which notice is delivered to the Chairman unless the wife happens to be pregnant at the time Talaq is pronounced and in that event Talaq became effective when the pregnancy ends. The effectiveness of the Talaq is not dependant upon r passing of any order by the Chairman or the Deputy Commissioner. Therefore, Talaq pronounced by the petitioner having become effective on the 12th June, 1979, he was at liberty to remarry. He could not be blamed in any manner for taking a second wife. The proceedings of the case against him pending before respondent 4 are not tenable. The petition is accordingly accepted, the impugned orders of respondents i and 2 and the proceedings of the case against the petitioner before respondent 4 are declared to be without lawful authority and of no legal effect There will be no order as to costs.

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