MUHAMMAD ASLAM NASEEM Versus PROVINCE OF PUNJAB
This is a petition for special leave to appeal arising from an order of the Lahore High Court, which declined to interfere in revisional jurisdiction with judgments affirming the dismissal of the petitioner's declaratory suit. The core legal question involves the validity and effectiveness of a divorce (Talaq) given by the petitioner, the procedural requirements of sending notice of Talaq to the Chairman of the Union Council, whether failure to appear before the Arbitration Council constitutes a revocation of Talaq, and the jurisdiction of Civil Courts versus Family Courts in such matters. The Supreme Court granted leave to appeal, holding that the contentions raised regarding the jurisdiction of civil courts and the alleged revocation of Talaq upon non-appearance before the Chairman require detailed examination. The key principle noted is that substantial legal questions concerning family law determinations and statutory notices of divorce warrant a full hearing by the appellate court.
- Are Civil Courts competent to entertain a suit seeking to declare orders passed regarding maintenance and Talaq as illegal and without jurisdiction?
- Does the failure of a husband to appear before the Chairman of the Arbitration Council amount to a revocation of the notice of Talaq?
- What are the legal consequences of failing to properly serve a notice of Talaq to the Chairman of the Union Council?
ORDER
SAAD SAOOD JAN, J.- -This is a petition for special leave to appeal from the order dated 17-10-1987 of the Lahore High Court whereby it declined to interfere in revisional jurisdiction with the judgment of the Additional District Judge, Faisalabad which affirmed the judgment of dismissal of a declaratory suit brought by the petitioner as recorded by the Civil Judge, Faisalabad.
2. The petitioner married respondent No.3 in March, 1968 and there are three issues of the marriage. According to him, he divorced her on 18-6-1975 and sent notices of Talaq both to her and the Chairman of the Local Union Council. The office of the Chairman was vacant at that time with the result that the notice sent to the Chairman was returned to him as unserved. However, he sent another notice to the Secretary of the Union Council.
3. On 9-9-1975, respondent No.3 moved an application before the Chairman of the Arbitration Council for the grant of maintenance. In response to the notice sent to him by the Chairman, the petitioner sent a reply that he had already divorced respondent No.3 and was as such not liable to pay any maintenance to her. He did not participate in the proceedings held by the Chairman. Consequently, the proceedings were held ex parte and he was directed to pay Rs.200 per month as maintenance to respondent No. 3 with-effect from 9-9-1975. He was also directed to pay Rs.228 as costs of the proceedings. The petitioner challenged the order of the Chairman in revision before the Collector, Faisalabad. The Collector found that the petitioner had not sent any notice of Talaq either to respondent No.3 or to the Chairman. Accordingly, he dismissed the revision petition on 20-11-1978.
4. Soon after the dismissal of his revision petition by the Collector the petitioner filed a civil suit for a declaration that the orders of the Chairman and the Collector were illegal, without jurisdiction and void, that the Talaq given by him to respondent No.3 had become irrevocable on 18-9-1975 and that he was not liable to pay any maintenance to her after the said date. The suit was dismissed by the trial Court on the view that as the petitioner had failed to displace the findings of the -Collector and the Chairman to the effect that he had neither sent the notice of Talaq to his wife or the Chairman, their orders could neither be regarded as without jurisdiction nor suffering from any legal defect.
5. The petitioner preferred an appeal before the Additional District Judge who after affirming the finding of the trial-Court dismissed the same. The petitioner then filed a revision petition before the High Court. The High Court took the view that the Civil Courts were not competent to entertain the suit of the petitioner as the controversy raised therein fell within the exclusive jurisdiction of the Family Court. It also took the view that the failure of the petitioner to appear before the Chairman of the Arbitration Council amounted to revocation of the notice of Talaq; accordingly, it dismissed the revision petition.
6. In support of this petition it is contended that the High Court erred in holding that the Civil Courts were not competent to entertain the suit, for, the petitioner was merely seeking avoidance of the orders which had been passed by the Chairman and the Collector. It is further contended that the failure of the petitioner to appear before the Chairman of the Arbitration Council could not in the circumstances of the case be taken as a revocation of Talaq. It is also urged that the view taken by the High Court is in conflict with the earlier decisions of that Court, one of which has been reported as Mst.Maqbool Jan v. Arshad Hasan P L D 1975 Lah.147.
7. The contentions raised on behalf of the petitioner require examination. Leave to appeal is granted. Security for costs in the sum of Rs.2,000. The appeal may be made ready for hearing on the present record with permission to the parties to file additional documents, if necessary.
S.Q./M-306/5. ???????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.