MUHAMMAD TAQI Versus COUNCILLOR/CHAIRMAN, UNION COUNCIL

1. This petition has been filed against order, dated 25‑10‑1983 of respondent No.1 whereby ordering the petitioner and respondent No.2 to get their disputes settled through Superior Court/Family Court.

2. The facts leading to the filing of the petition as given in the memo. of petition are as under:

3. The petitioner was married with the respondent No.2 at Karachi on 6‑9‑1980 in accordance with Sunni Muslim Personal Law for a dower consideration of Rs.32‑50. Soon after the marriage, the parents of the respondent No.2 started interference in the affairs of the parties and at the demand of the respondent and her parents the petitioner started living separately from his parents and maintained the respondent No.2 but even her parents were not satisfied. She failed to reconcile and demanded divorce from the petitioner and ultimately, in the month of January, 1983 left the house of the petitioner. Ultimately the petitioner divorced the respondent No. 2 on 19‑2‑1983 and sent a written Talaqnama to the respondent No.2. The petitioner sent intimation on 10‑3‑1983 to respondent No.1. The respondent No.1 initiated proceeding and the petitioner and respondent No.2 appeared before the respondent No.1. Instead of confirming the divorce, the respondent No.1 directed the parties to get their disputes settled from Superior Courts. The respondent No.2 filed Suit No.670 of 1983 before the Court of XXVth Civil Judge and Family Court, Karachi for maintenance at the rate of Rs.500 per month. The petitioner filed the written‑statement and resisted the suit. The Family Court d4creed the suit and observed that the divorce was not confirmed by the respondent No.1. Hence, the petitioner filed this petition.

4. Mr. Ibrahim U. Mojawala the learned counsel for the petitioner has contended that the order of the respondent No.l is without lawful authority and of no legal effect.

5. Mr. Mushtaq Ahmad Riazi the learned counsel for the respondent No.2 in response to the pre‑admission has submitted that the order is in accord with the law.

6. I have considered, the arguments of the learned counsel for the parties and have also perused the relevant record of the file.

7. It is not in dispute that the petitioner divorced the respondent No.2 on 19‑2‑1983. He sent intimation on 10‑3‑1983 in compliance with section 7(1) of the Muslim Family Laws Ordinance, 1961 hereinafter called the Ordinance. The divorce pronounced on 19‑2‑1983 is valid. It would become effective under that law but the only clog thereon is that the effectiveness would be postponed for ninety days from the day on which notice under subsection (3) is delivered to the Chairman as provided under subsection (3) of section 7 of the Ordinance. Sub section (4) of section 7 provides that within thirty days of the receipt of the notice under subsection (7) the Chairman shall constitute an Arbitration Council for the purpose of bringing about .a reconciliation between the parties. The respondent No.1 initiated proceedings under subsection (4) of section 7 of, the Ordinance and called upon the parties to appear on 17‑8‑1983 at 9 p.m. The petitioner and the father of the respondent No.2 appeared before the respondent No.1. The respondent No.1 recorded statements of the petitioner and the father of the respondent No. 2. The divorce given by the petitioner to respondent No.2 and duly communicated to respondent No.1 cannot be cancelled. The respondent No.1 passed order on 25‑10‑1983. The legal position of the order, dated 25‑10‑1983 is illegal and of no legal effect. Its issuance is a mere superfluous act on the part of the Chairman. It was incumbent upon the respondent No.1 to decide the matter in accordance with provisions of, section 7 of the Ordinance. The learned counsel for the parties jointly submit that the Chairman shall be directed to decide' the matter in accordance with the provisions of the Ordinance after affording opportunity to the parties. The parties agreed that they will appear before the respondent No.1 on 31‑10‑1985. The Constitutional petition is allowed and the order, dated 25‑10‑1983 is declared‑as without lawful authority and of no legal effect. The parties will bear their own costs.

8. M. Y.H. Writ issued.