Find a Lawyer

Civil Petition for Leave to Appeal 135 of 1985, decided on 17th February, 1986.

(On appeal from the judgment and order of the Lahore High Court, Multan Bench, dated 13‑1‑1985, passed in Writ Petition No. 13 of 1984).

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Muslim Family Laws Ordinance (VIII of 1961), S. 7 West Pakistan Family Courts Act (XXXV of 1964), S. 5‑‑Petition for leave to appeal‑‑Talaq becomes effective only after notice thereof is given to Chairman and period of ninety days provided for bringing about reconciliation between parties has expired‑‑If husband does not give such a notice of Talaq to Chairman under S.7(1) of Ordinance it would be deemed that he has revoked Talaq‑‑Petitioner divorcing his wife by means of a divorce deed and not observing formalities of S.7 of Ordinance‑‑Family Court decreeing suit of wife for maintenance on ground that Talaq given by husband did not become effective‑‑Both First Appellate Court and High Court rightly upholding,' judgment of Family Court‑‑Leave to appeal refused.

Ali Nawaz Gardezi v. Muhammad Yousaf P L D 1963 S C 52; Abdul Manan v . Safuran Nessa 1970 S C M R 845 and Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi and others 1984 S C M R 583 ref.

Ch. Muhammad Ashraf, Advocate Supreme Court with Maqbul A. Qadri, Advocate‑on‑Record for Petitioner.

Abdul Aasim Jafri, Advocate‑on‑Record for Respondent No.3. Date of hearing: 17th February, 1986.

Petitioner Ghulam Nabi married respondent No.3 Mst. Sakina Bibi 9n 21‑6‑1982 but their relationship became strained immediately after the wedlock and it is alleged that the petitioner gave Talaq to Mst. Sakina Bibi vide the divorce deed, dated 13‑7‑1982. Notices were also issued by the Chairman, Union Council whereupon both the parties appeared before the Chairman and their statements were recorded by him on 28‑7‑1982. Subsequently, respondent No. 3 Mst. Sakina Bibi filed a suit for the recovery of maintenance in the Court of the learned Judge, Family Court, Sahiwal. The petitioner resisted the claim of the respondent. Issues 1 and 2 were struck, and the Court of first instant decreed the suit vide judgment dated 17‑3‑1984 holding that the divorce was not effective as the formalities of section 7 of the Muslim Family Laws Ordinance, 1961 had not been followed and granted Rs.400 p.m. as maintenance allowance from the date of institution of suit. Petitioner's appeal before the learned Additional District Judge was dismissed per order dated 30‑11‑1984. Thereafter the petitioner filed a writ petition in the Lahore High Court, Multan Bench which was dismissed vide the impugned judgment dated 13‑1‑1985.

2. Learned counsel for the petitioner before us raised the questions; whether it was not essential to send a notice of divorce at the residence of the parents of respondent No.3 Mst. Sakina Bibi: that her participation at the time of execution of Talaqnama through Panchayat was necessary. He submitted that her appearance before the Chairman, Union Council throughout the proceedings, was sufficient to fulfill the requirements of section 7 of the Muslim Family Laws Ordinance; that the participation of Mst. Sakina Bibi at the time of the preparation of Talaqnama, at the time of submission of the same to the office of the Chairman, Union Council and appearance of both the parties before the Chairman was and should be due and sufficient service of notice of Talaq under the relevant provisions of law. It was further contended that the proceedings taken and finalized and orders passed by the Chairman, Union Council in performance of his official duties under the normal course of events and law, contained presumption of truth under 'the Evidence, Act and the onus to rebut the proceedings finalizd by the Chairman, Union Council lay on the respondent No.3 Mst. Sakina Bibi but she failed to bring the Chairman in the witness‑box to get his statement recorded by the learned Family Judge, and therefore, it could not be presumed that the proceedings of Talaq were unauthenticated.

3. We have examined the contentions raised by the learned counsel and would refer to third paragraph of the impugned judgment which is conclusive on the points raised by the learned counsel wherein learned High Court Judge observed as follows:

"I have also gone through the impugned judgments. The findings recorded by both the learned Courts below are that the service of notice of Talaq on the respondent, was not proved and that the petitioner in his statement, firstly stated that he sent a copy of notice of Talaq to his wife the respondent, through registered post, but when he was asked about the receipt of Post Office he stated that it had been lost but in the next breath he admitted that he did not send notice to the respondent through post. The learned Additional District Judge, in the impugned judgment, further noted that there are material discrepancies in the statement of Ghulam Nabi petitioner inasmuch as, on the one hand he says that at the time of the presentation of Talaq before the Chairman Union Council the respondent was living with him in his house."

In the same paragraph, the learned Judge further observed as under:

"In view of the evidence on record the version of the petitioner that the divorce deed was executed on the basis of a compromise between the parties, and that they attended the office of Union Council No.8 was also not accepted.

4. The contention raised in this case has already been set at rest by the following judgments of this Court.

Ali Nawaz Gardezi v . Muhammad Yousaf P L D 1963 S C 51; Abdul Manan v . Safuran Nessa 1970 S C M R 845, which was subsequently affirmed by this Court in Muhammad Salahuddin: Khan v. Muhammad Nazir Siddiqui and others 1984 S C M R 583.

In the case of Ali Nawaz Gerdezi P L D 1963 S C 51 it was held that after notice of Talaq is given to the Chairman of the Union Council, does not become effective immediately, but after the passage of 90 days from the date of the pronouncement of the Talaq.

In the case of Abdul Manan 1970 S C M R 845 it was held that Talaq does not become defective until a notice as required by section 7 (i) of the Muslim Family Laws Ordinance, is sent to the Chairman of the Union Council in view of the express provisions of subsection (3) of section 7 of the said Ordinance.

In the case of Muhammad Salahuddin Khan 1984 S C M R 583 above‑noted two judgments were affirmed and it was held that Talaq becomes effective only after notice thereof is given to the Chairman and the period of 90 days provided for bringing about reconciliation between parties has expired and that if a husband does not give such a notice of Talaq to the Chairman under section 7(i) of the said Ordinances it will be deemed that he has revoked the Talaq.

5. In view of what has been observed above we find no infirmity in the impugned judgment of the High Court. The petition is consequently dismissed as being without any merit.

However, the petitioner can serve proper notice on respondent No.3, if so advised, and thereafter pursue the remedies available to, him under the law, which culminate into final divorce.

M . Y . H . Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.