Notice of divorce


Ss. 3(1) & 7—Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79—Constitution of Pakistan. Art.199—Constitutional petition—Notice of divorce—issuance of certificate of effectiveness of divorce—Contention of petitioner-wife was that she contracted marriage with the respondent-husband, however, rukhsati did not take place and notice of divorce issued by the respondent-husband from abroad was not as per law and thereafter, arbitration proceedings were not conducted properly by the Administrator Union Council as neither the respondent-husband himself appeared nor any arbitrator appeared on his behalf for reconciliation proceedings—Validity—Respondent-husband had not denied the execution of the divorce deed/notice of talaq , therefore, the provisions of Art.79 of the Qanun-e-Shahadat, 1984 were not attracted, particularly when the petitioner-wife herself admitted the receipt of divorce deed—issuance of certificate of talaq was a technicality which did not find mention in the provisions of Muslim Family Laws Ordinance, 1961 and talaq became effective automatically after 90 days from receipt of notice of talaq by the Nazim/Administrator of the Union Council—As per Injunctions of Islam, the right of divorce had been conferred upon man who could give divorce to his wife at any time and no encumbrance was put upon the man to give divorce to his wife though the same was one of the things most disliked by God—Constitutional petition was dismissed.

Divorce with mutual consent (Muba’arat)


S. 7—Constitution of Pakistan, Art.199— Constitutional petition—Divorce with mutual consent of parties and on the basis of Muba’arat—Withdrawl of divorce by the husband—Non-issuance of certificate of effectiveness of divorce by the Chairman Union Council—Scope—Contention of Chairman Union Council was that husband had withdrawn divorce—Validity—Divorce deed was an agreement based upon the consent of the parties and same was signed in presence of witnesses—Husband had also informed Chairman Union Council with regard to divorce—Husband could not retract or withdraw divorce which was with mutual consent and on the basis of Muba’arat nor Chairman Union Council had authority to adjudicate upon the validity of the same—Chairman Union Council was bound to issue certificate of effectiveness of divorce and he had no power to entertain notice of withdrawal of divorce and to start proceedings on the basis thereof —Husband had no authority to revoke divorce in case of talaq -i-Muba’arat and Chairman Union Council had no authority except to issue certificate of effectiveness of divorce—Constitutional petition was accepted and Chairman Union Council was directed to issue certificate of effectiveness of divorce forthwith.

Genuineness of divorce certificate


S. 7—Constitution of Pakistan, Art. 199—Constitutional petition—“Divorce certificate “—Respondent-wife had challenged genuineness of divorce certificate issued by Secretary, Union Council in an earlier constitutional petition which was disposed of by High Court holding that she had remedy to approach Inspecting officer/Assistant Director Local Government and Rural Development Department-Respondent ­wife filed revision before the Assistant Director Local Government who set aside the divorce certificate —Petitioner had challenged the Assistant Director’s said order through present constitutional petition-” Validity— When High Court disposed of respondent wife’s earlier petition in 2011-12, law applicable to the case was Punjab Load, Government Ordinance, 2001 and not the Punjab Local Government Ordinance, 1979—Punjab Local Government Ordinance, 2001 did 01 authorize Assistant Director, Local Government and Rural Development Department to look into genuineness of divorce certificate -issuance of certificate of talaq could not be challenged under Muslim Family Laws Ordinance, 1961 or Local Government Ordinance, 2001—Under Muslim Family Laws Ordinance, 1961 Chairman of the Arbitration Council was not empowered to issue divorce certificate —Petitioner having participated in proceedings before Assistant Director/Inspecting officer, was estopped from challenging the order of that authority—Petitioner (husband) was found to have not sent the notice of talaq /divorce to respondent in original nor copy thereof was sent to the Secretary, Union Council—Even if an order had been passed without jurisdiction yet if such order advanced the cause of justice, court should not interfere with such order as neither any fraud and forgery committed by anyone should come in the way of justice nor constitutional jurisdiction could be invoked in aid of injustice—Impugned order advanced the cause of justice by setting aside a document obtained by fraud and forgery— Constitutional petition was dismissed.

 Divorce in Shia law


 Ss. 7 & 8—West Pakistan Rules made under Muslim Family Laws Ordinance, 1961, R.3(b)—Constitution of Pakistan, Art. 199—Constitutional petition—Divorce—Shia law—issuance of certificate for effectiveness of divorce—Scope—Shia personal law of divorce was not so strict so as to make a woman slave of the man who would always remain unable to get divorce without his permission—Wife who had been delegated the right of divorce by the husband could pronounce divorce by sending a notice in writing to the Chairman Union Council—Such notice had to be sent to the Union Council of the union where wife to whom talaq had been pronounced was residing at the time of the pronouncement of talaq —Notice had to be sent to the Union Council where Nikah was registered in case of divorce by the wife with delegated powers by the husband—No illegality had been committed while issuing certificate of effectiveness of divorce—Constitutional petition was dismissed in circumstances.