MAQBOOL JAN Versus ARSHAD HUSSAIN

This Second Appeal arises out of a matrimonial suit filed by the appellant for declaration to the effect that the certificate of Talaq dated 14-10-1967, issued by the Chairman, Union Council (defendant No. 2) in favour of the respondent (husband) is void, and that the appellant (plaintiff) continues to be the legally wedded wife of the respondent No. 1 (defendant No. 2). The suit was dismissed by the trial Court mainly on the ground that the talaq once pronounced and, if not revoked within 90 days after the delivery of the notice to the Chairman becomes effective, whether Arbitration Council is constituted or not. With regard to the certificate issued by the Chairman, it was held that there is no provision in any law warranting grant of certificate of talaq. Its issuance, it was observed, "is a mere superfluous act on the part of the Chairman so the plaintiff can ignore it altogether. As the impugned order does not infringe any right of the plaintiff, so she has no cause of action to challenge it".

2. In the first appellate judgment, it was held that the Arbitration Council was properly constituted and there was no illegality in its proceedings. In any case section 7 of the Muslim Family Laws Ordi nance, 1961, which "prescribes the mode of talaq does not in any way lay down that if the formalities providing in this section are not complied with, the talaq would be void". It was further held that "even if it is assumed that no Arbitration Council was constituted to effect a reconciliation between the parties, it cannot be held that the certificate of divorce was illegal and void. At the most he who fails to observe the provisions of section 7 of the Ordinance, is liable to prosecution".

3. The following contentions have been raised by the learned counsel for the appellant :-

(i) That the parties being admittedly Shia, as held in Syed Ali Nawaz Gardezi v. Lt: Col. Muhammad Yusuf P L D 1963 S C 51 there is a special form of talaq and because the proper procedure in respect thereof has not been followed, therefore, there was no talaq;

(ii) that the talaq in question being there should have been three notices on successive tuhrs, the first one having been given on 15-7-1967 and the talaq would not be effective till 14th of December 1967. The certificate of the Chairman declaring talaq, according to the learned counsel is void ; and

(iii) that the Arbitration Council was not properly constituted under section 7(4) of the Muslim Family Laws Ordinance, 1961, therefore, in this respect also the certificate of talaq was invalid.

4. In reply, learned counsel for the respondent maintained that the failure of all or any of the parties to participate in the arbitration proceedings, would not affect the constitution of the Arbitration Council even absence of nomination by the parties would by virtue of rule 5 of the West Pakistan Rules made under the Muslim Family Laws Ordinance, 1961 not vitiate the proceedings of the Council; that there is no evidence on the record nor it was the case of the appellant before the learned lower Courts that any procedure prescribed for Shia Talaq was not observed. On the other hand, it has been asserted that all the formalities were observed; that in any case, subsection (1) of section 7 of the Ordinance provides for "talaq in any form"; that in fact successive notices were given by the respondent in any case, subsection (1) of section 7 postulates Talaq-e-Ahsan and one notice would be enough in order to make the talaq effective after 90 days; and lastly that as held in Mst. Fahmida Bibi v. Mukhtar Ahmad and another P L D 1972 Lah. 694 the Chairman and/or Arbitration Council have no jurisdiction to declare the validity or otherwise of talaq its function is only of providing a machinery for reconciliation so as to avoid hasty talaqs. In that context the question of validity of talaq under the Personal Law of the parties would have to be determined as and when a question of right of any of the parties qua talaq or otherwise arises. Therefore the certificate issued by the Chairman does not confirm validity or otherwise of the talaq; and thus the suit filed by the appellant was not competent.

5. In order to appreciate the arguments, it is necessary to notice the issues framed by the learned trial Court. They are

"(1) Whether the Courts have no jurisdiction to hold inquiry that whether the Talaq was `Hasan' or in any other form? O. P. D.

(2) Whether no effective divorce has been given to the plaintiff by the Defendant No. 1. O. P. D.

(3) Relief."

Issue No. 1 was not pressed from the side of the defendant, therefore, it was decided against him and the decision on issue No. 2 has already been noted above.

6. The first two contentions raised by the learned counsel relate to questions of fact. It has been admitted by both the learned counsel before me that both the parties are Shia. Their Lordships of the Supreme Court in the cited ruling did make reference to special form of Talaq by a Shia but there is no material on the record to come to a conclusion that in this case the Talaq was not pronounced in that special form. There was no issue on this question. It does not appear that the same was pressed before the learned trial Court. In appeal before the first appellate Court also the appellant failed to take this point or urge the same. The learned counsel for the respondent has maintained that the formalities of procedure/form prescribed for Shia Talaq were observed in this case, therefore, in the above circumstances, it is not possible to accept the position taken by the learned counsel for the appellant in so far as the first contention is concerned.

7. With regard to the second contention it needs to be noticed that the question of three notices, also was not made subject of any specific issue. The learned counsel for the respondent asserted that three notices were given by the respondent in this case. , However, even if it be assumed otherwise, the law in so far as it is contained in section 7 of the Family Laws Ordinance does not visualise any difference between one or the other form of divorce. The expression used in section 7(1) in this behalf A is "after the pronouncement of Talaq in any form whatsoever" (particularly the use of the word "whatsoever") is very comprehensive. I, therefore, do not find any force in the second contention raised by the learned counsel either.

8. The real contest between the parties, it appears throughout the proceedings as also during arguments in this second appeal has been on the question as is to whether a defect in the constitution of the Arbitration

Council purported to have been constituted under section 7(4) and/or in the proceedings thereof, would make the Talaq ineffective. Leaving aside the findings of fact by the learned appellate Court which go against the appellant, I after hearing both the learned counsel, am satisfied that the legal position in this behalf as understood by the learned Courts below is unexceptionable. This very question has, by now, been subject of adjudication in the Supreme Court and the High Courts in the case of Ali Nawaz Gardezi, their Lordships of the Supreme Court were pleased to hold that subsection (3) of section 7 precludes the Talaq from being effective as such, "for a certain period" and within that period only it could not be said that the marital status of the parties would, in any way, be affected. Their Lordships were pleased to notice- that `the object of section 7 is to prevent hasty dissolution of marriage by Talaq pronounced by the husband, unilaterally without an attempt being made to prevent disruption of the matrimonial status. If the husband himself thinks better of the pronouncement of the Talaq and abstains from giving notice to the Chairman, he should perhaps be deemed, in view of section 7, to have revoked pronouncement and that would be to the advantage of the wife". It was in this context that it was held that the Talaq would not be effective "for a certain period", namely ninety days, so as to provide cushion period during which the parties would have an opportunity of looking at the question of "hasty dissolution of marriage by Talaq". This very question came under discussion in Mst. Fahmida Bibi v. Mukhtar Ahmad and another P L D 1972 Lah. 694. It was declared at-page 697 of the Report as follows :-

"A divorce thus does not become effective unless the notice is served on the Chairman of the Union Committee or Council and ninety days expire from the date of receipt of the notice by him. The Chairman is required to bring about reconciliation between the parties" for which purpose he is to give notice to them to nominate their representatives in order to constitute the Arbitration Council. If any of the parties fails to appear before him, he cannot enforce his attendance nor a default of appearance on the part of any of the parties can be visited with any penal consequence. The divorce, notwithstanding the conduct or attitude of any of the parties, shall become effective after the expiry of ninety days unless the divorce is revoked earlier by the husband. In the event, the parties appear before the Chairman and an Arbitration Council is constituted, but reconciliation does not succeed, the only thing the Council or the Chairman may do is to record in writing that conciliation has failed. There is no other function which a Chairman or an Arbitration Council is competent to perform in this behalf. If reconciliation does not succeed or the husband does not revoke Talak before expiry of ninety days, it becomes automatically operative and effective. There is no provision either in the Ordinance or the rules requiring the Chairman or the Arbitra tion Council to give a decision or to issue a certificate to make the divorce effective. If the Chairman issued the certificate, it was not under any provision of law and had no legal effect.

The case can be examined from another angle as well. If under sub section (3) of section 7 of the Ordinance, the husband revokes the Talaq before the expiration of ninety days the spouses continue in law to be husband and wife. Learned counsel for the petitioner has not pointed out any provision of law and in fact there is none, under which the husband is to inform the Chairman of his decision that he has revoked the talaq. The words "unless revoked earlier, expressly or' otherwise" are significant. A husband who pronounces divorce on his wife and has served the Chairman with the notice under section 7 of the Ordinance may simply revoke it and inform his wife of his decision. What will in such a case be the value of certificate which the Chairman may have issued in his ignorance of the factum of revocation of the divorce? The certificate therefore, cannot at all be a proof, let alone a conclusive proof of the divorce, as is alleged in the present case. If the certificate is used as a proof of divorce, it will be inconsistent with the statutory right of the husband to revoke talaq before the expiry of ninety dais either "expressly or otherwise". It may be one of the reasons for the Legislature in not providing for the issuance of the certificate of divorce by the Chairman of a Council."

Similar view was held in Mst. Farida Parwin v. Qadeeruddin Ahmad Siddiqi P L D 1971 Kar 118. In this case the point involved was with regard to the procedure after the decree for dissolution of marriage passed by a Family Court, is transmitted under section 21 of the Family Courts Act, to the Chairman of the Union Council, for the matter to be dealt with under section 7 of the Family Courts Ordinance. Following observations at page 124 of the report are relevant in the present case :-

"In the absence of reconciliation between the parties the decree for the dissolution of their marriage became effective on the expiry of 90 days in view of subsection (3) of section 7 of the Ordinance and subsection (3) of section 21 of the Act. It is only if there has been a reconciliation within the above period that the decree loses its effectiveness. It cannot therefore be said that the Chairman had not complied with the requirement of subsection (4) of section 7 of the Ordinance. Moreover, neither section 7 of the Ordinance nor section 21 of the Act nor the Proviso to rule 6 of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, provide a con sequence in case of want of service of notice on one of the parties. Having regard to the above provisions the effectiveness of the decree after the expiry of 90 days is absolute. There is nothing in the Ordinance or the Act to make it ineffective in an event where an attempt is made but no service can be effected for the purpose of reconciliation."

In a Dacca case reported as Abdul Aziz v. Razia Khatoon 1969 D L C 586 it was held that "it is subsection (3) of section 7 which determines the date on which a talaq becomes effective in law, and that the parties have little to do with subsection (4) for a violation of the provisions of which it is not they but the Chairman of the Arbitration Council, if it has come into existence, who- will be responsible. If the Chairman fails in his duty or the Arbitra tion Council in its, the talaq, if otherwise valid cannot but be effective in law on the expiry of the period mentioned in subsection (3)".

9. I have no reason to differ with the weighty observations made in the above cited rulings with regard to the effectiveness or otherwise of the Talaq under section 7(3) of the Ordinance notwithstanding any defect in the constitution of or proceedings by, the Arbitration Council under section 7(4). In view of the facts and circumstances of the present case, I am also in respectful agreement with the specific observation in the Dacca case of Abdul Aziz that if the talaq is otherwise valid (f. e. if under the Personal Law of the parties the Talaq is valid) it would become effective under that law; but the only clog thereon is that the effectiveness would be postponed for ninety days under subsection (3) of section 7 of the ordinance. Similarly, I am in respectful agreement with the observation in the Lahore case of Mst. Farida Parwin, that there is no provision either in the Ordinance or the Rules, requiring the Chairman or the Arbitration Council to give decision on the question of validity or otherwise of the Talaq under the relevant law applicable to the parties or even to issue a certificate, to make the divorce effective. The' certificate issued by the Chairman in this behalf would have no legal effect, if otherwise under the substantive law applicable to the parties the Talaq was not valid.

10. In this case as already noted, the mainstay of the appellant's case throughout has been "that since the certificate of talaq dated 14-10-1967 is illegal and of no legal effect, therefore plaintiff continued to be legally wedded wife of defendant No. 1 (Arshad Hassan)". The cause of action also, it has been asserted by the appellant, "arose on 14-10-1967 and is a continuing one" (see paras. 11 and 12 of the plaint). The argument of the learned counsel that in the prayer part of the plaint a declaration was sought that "the plaintiff continued to be the wife of defendant No. 1, therefore, according to him, the applicant apart from the question of validity or otherwise of the certificate of talaq, sought a relief qua her status on considerations other than the certificate, has not impressed me: because in the same prayer reference is again made to the certificate of talaq dated 14-10-1967. If the prayer is read in continuation of the entire contents of the plaint and the position taken by the parties during trial/ evidence and the first appeal, it becomes absolutely clear that the entire case was fought on the question as to the legality/validity or otherwise of the certificate dated 14-10-1967, issued by the Chairman and that the validity/legality of the talaq under the Personal Law of the parties was not made subject of contest. The legal position of the certificate of talaq issued by the Chairman has already been discussed above. There is no justification for interference on the basis of the last argument of the learned counsel for the appellant either.

11. There is no force in this appeal and the same is dismissed but there shall be no order as to costs.

S. A. H. Appeal dismissed.