1998 M L D 486

[Lahore]

Before M. Javed Buttar, J

Mst. REHMAT ARA ---Petitioner

versus

MEHMOOD UL HASSAN and another---Respondents

Writ Petition No.21548 of 1996, heard on 6th November, 1997.

Muslim Family Laws Ordinance (VIII of 1961)---

----S. 7---Constitution of Pakistan (1973), Art. 199---Constitutional petition---

Pronouncement of Talaq by husband to his wife on 9-6-1996---Notice of Talaq was
received in the Office of Chairman, Arbitration Council on 18-8-1996--Husband giving
notice of withdrawal of Talaq on 21-10-1997---Chairman, Arbitration Council passed
order that Talaq having been withdrawn, divorce proceedings had ended---Validity---
Wife claimed that period of "Iddat" of 90 days would be counted from the date of
pronouncement of Talaq and not from issuance of notice of Talaq to Chairman,
Arbitration Council---Husband asserted that period of ' Iddat' of 90 days must be counted
from date of issuance of notice to Arbitration Council and not from the date of
pronouncement of Talaq--Commencement of period of "Iddat"---Talaq was validly given
by husband on 9-6-1996 when the same was pronounced and period of "Iddat" of three
months had expired on 9-9-1996 and Talaq became final on said date--Withdrawal of
Talaq by husband on 21-10-1996 (after it had become final) was inconsequential and
ineffective-- Chairman, Arbitration Council was directed to issue necessary Talaq
Certificate to wife.

Allah Dad v. Mukhtar and another 1992 SCMR 1273 rel.

Muhammad Nasir Siddique and others v. Muhammad Salahuddin Khan 1984 CLC 879;
Allah Dad v. Mukhtar and another 1992 SCMR 1273 Chuhar v. Mst. Ghulam Fatima and
another PLD 1984 Lah. 234; Ayyaz Aslam v. Chairman, Arbitration Council and others
1990 ALD 702; Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi and others
1984 SCMR 593; Muhammad Rafique v. Ahmad Yar and another PLD 1982 Lah. 825
and 1984 SCMR 593 ref.

Malik Muhammad Suleman Awan for Petitioner.

Muhammad Nawaz Bhatti, Asstt. A.-G. Respondent No. 1.

Ghulam Ahmed Malik for Respondent No. 2.

Date of hearing: 6th November, 1997.

JUDGMENT

The relevant facts leading to this Constitutional petition are that the petitioner, Mst.
Rehmat Ara was married to respondent No.2, Abdul Shahid on 25-12-1992 and no child
was born from this wedlock. The relation between the spouses became strained and
respondent No.2 gave Talaq to the petitioner on 9-6-1996 in presence of the witnesses.
The notice of Talaq was received in the office of Chairman Arbitration Council Halqa
No:98, Metropolitan Corporation, Lahore on 18-8-1996 and the notices were issued for
19-9-1996 for the appointment of arbitrator. On 19-9-1996; the petitioner as well as the
respondent No.2 appeared before the Chairman Arbitration Council and stated that they
did not want to appoint any arbitrator and the respondent No.2 also stated that after the
expiration of the period of Iddat, Talaq certificate may be issued. In view of the statement
of the parties, the Chairman Arbitration Council passed an order that file be now put up
after the expiration of the Iddat period on 17-11-1996. On 21-10-1997, the respondent
gave a notice of withdrawal of Talaq and on 22-10-1997, the Chairman Arbitration
Council passed the 'impugned order that as the Talaq had been withdrawn, therefore, the
divorce proceedings have ended. Hence this Constitutional petition.

2. It is contended by the learned counsel for the' petitioner that Talaq was given on 9-6-
1996 and it became final and effective after the expiry of 90 days on 9-9-1996 and,
therefore, its withdrawal by respondent No.2 on 21-10-1996 has no relevance and the
Chairman Arbitration Council acted illegally in presuming that the Talaq had been
validly withdrawn. Learned counsel further submitted that the period of Iddat of 90 days
is to be counted from the date of pronouncement of Talaq and not from the date of
issuance of notice of Talaq to the Chairman Arbitration Council. Learned counsel in
support of his contention has relied upon Muhammad Nasir Siddique and others v.
Muhammad Salahuddin Khan (1984 CLC 879), Allah Dad v. Mukhtar and another (1992
SCMR 1273) and Chuhar v. Mst. Ghulam Fatima and another (PLD 1984 Lahore 234).
On the other hand while vehemently opposing this petition learned counsel appearing for
respondent No.2 has submitted that deed of Talaq shows that it was written on 9-6-1996
but was served on the Arbitration Council on 18-8-1996 by the representative of
respondent No.2 which would show that in fact the Talaq was given by respondent No.2
to the petitioner on 18-8-1996 and not on 9-6-1996. Learned counsel has also submitted
that in the alternative, under the law, the period of Iddat is 90 days and is to be counted
from the date of issuance of notice to the Arbitration Council and not from the date of
pronouncement of Talaq and, therefore, the Talaq would have become final and effective
only on 18-11-1996 and before that, the withdrawal of Talaq on 21-10-1996 by
respondent No.2 was valid and respondent No.1, Chairman Arbitration Council correctly
held it to have been validly withdrawn.

3. I have heard the learned counsel for the parties and also the Chairman Arbitration
Council who was also present in Court and have also seen the record produced by him.

4. The first submission of the learned counsel for the respondent No.2 is not valid
because the Talaq deed itself shows that it was pronounced on 9-6-1996 and when his
statement was recorded by the Chairman Arbitration Council on 19-9-1996 once again he
reiterated that he had divorced the petitioner on 9-6-1996. The contention of the learned
counsel for the respondent No.2 that the date 9-6-1996 as mentioned in the respondent's
statement dated 19-6-1996 seems to be a forgery as the same appeal, to be out of the line
and this forgery may have been committed by the. petitioner or any of her representative.
This assertion has been refuted by the Chairman Arbitration Council who was also
present in Court and stated that the date is also in his hand-writing and the respondent's
statement was correctly recorded by him.

5. The only issue now involved in this petition is as to whether the period of Iddat is to be
counted from the date of pronouncement of Talaq i.e. 9-6-1996 or from the date when the
notice was served upon the Chairman Arbitration Council i.e. 18-8-1996.

6. Learned counsel for the respondent No.2 has placed his reliance on Ayyaz Aslam v.
Chairman Arbitration Council etc. (1990 ALD 702), wherein it was held by the learned
Single Judge of this Court that Talaq becomes effective under section 7(2). of the Muslim
Family Laws Ordinance. 1961 on the expiry of 90 days from the date on which notice
under subsection (1) thereof is delivered to the Chairman. Learned counsel has also relied
on Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi and others (1984 SCMR
593) wherein the Supreme Court of Pakistan held that a Talaq which is given without
notice to the Chairman Arbitration Council is -ineffective and Talaq would be effective
only after the notice of Talaq is given to the Chairman and prescribed period of three
months is expired. The Honourbale Supreme Court of Pakistan while delivering this
judgment also held that the view expressed by the High Court in Muhammad Rafique v.
Ahmad Yar and another (PLD 1982 Lahore 825) is erroneous.

7. In Chuhar v. Mst. Ghulam Fatima and another PLD 1984 Lahore 234) ---- a learned
Single Judge of this Court took a view that Talaq pronounced by husband unilaterally
would not be defeated by non-giving of notice under section 7 or section 7(1) of the
Muslim Family Laws Ordinance, 1961 and it would not become ineffective. In
Muhammad Nasir Siddique and others v. Muhammad Salahuddin Khan (1984 CLC 879)
similar view was expressed by this Court and it was held that if the execution of divorce
deed is once proved then Talaq would become effective after expiry of 90 days even if
the notice is not served on the Chairman concerned. Both these judgments relied upon by
the learned counsel for the petitioner are not of any help to the petitioner because in 1984
SCMR 593 (Supra) which has been already discussed above, the Honourable Supreme
Court of Pakistan expressly held that Talaq would be effective only after the notice of
Talaq is given to the Chairman concerned and prescribed period of three months has
expired. However, the Shariat Appellate Bench of the Supreme Court of Pakistan in 1992
SCMR 1273, Allah Dad v. Mukhtar and another while considering the various provisions
of Muslim Family Laws Ordinance, 1961 has held that divorce would become effective
even in the absence of notice to the Chairman under section 7 of the abovesaid Ordinance
and ineffectiveness of divorce in absence of a notice to the Chairman as envisaged by
section 7 of Muslim Family Laws Ordinance, 1961 was against the Injunctions of Islam.
This shows that the matter has now been finally resolved and the provision of section 7 of
the Muslim Family Laws Ordinance, 1961 which made the Talaq ineffective in the
absence of notice to Chairman Arbitration Council is no more in the field as the same has
been declared to be against the Injunctions of Islam. In the light of the law laid down by
the Shariat Appellate Bench of the Supreme Court of Pakistan the Talaq in the present
case was validly given by respondent No.2 on 9-6-1996 when the same was pronounced
and the period of Iddat of three months expired on 9-9-1996 and the Talaq became final
on the said date and the withdrawal of Talaq by respondent No.2 on 21-10-1996 was
inconsequential and ineffective.

8. In view of the above mentioned, this writ petition is accepted and respondent No. 1, the
Chairman Arbitration Council Halqa No. 98, Metropolitan Corporation Lahore is directed
to issue necessary Talaq Certificate to the petitioner. However the parties are left to bear
their own costs.

A.A./R-46/L Petition accepted.