The respondent Mukhtar Ahmad instituted a suit for restitution of conjugal rights against the petitioner in the Family Court at Layallpur. The petitioner pleaded in defence that the Family Court at Layallpur had no jurisdiction and that she had already been divorced by the respondent and relied on a notice purported to have been given by respondent to the Chairman of Union Committee, Hafizabad and also the certificate of divorce issued by the latter. The respondent denied to have ever given any divorce notice to the Chairman or to have given the divorce to the petitioner. The question of jurisdiction was not made subject‑matter of any issue. The learned Family Judge however, framed the issue t "Whether plaintiff has already been divorced by the defendant." The respondent applied to the Court to have the thumb‑impression on the notice Exh. D. A. examined by an Expert. The application was rejected on the ground that he could not go behind the Certificate of the Chairman and bad no jurisdiction to declare it as invalid and he therefore, could not permit the respondent to lead evidence about the genuineness or otherwise of the thumb‑mark on the notice. He dismissed the suit by deciding the above issue in favour of the petitioner and observed: "Secretary of the Union Committee, Hafizabad had appeared as D. W. 1 and with reference to the record has stated that on notice being received from the plaintiff the divorce was made effective vide order copy of which is Exh. D. 2. The defendant as D. W. 2 corroborates D. W. 1 as against this very strong documentary evidence is the same denial of the plaintiff which is of no worth."
The respondent preferred appeal against this order which was accepted by the learned Additional District Judge, Layallpur and he remanded the case with the direction that the Family Judge should first decide whether the Courts at Layallpur had the jurisdiction to hear the suit and in case he finds that the suit was maintainable there. The should give suitable opportunities to the parties to adduce evidence as to the validity or otherwise of the order of the Chairman of the Union Council, D‑Hafizabad dated 25th of July 1966 by which divorce between the parties was made effective after the lapse of that period in that the plaintiff will also be allowed to bring expert evident on record to prove the ingenuineness of the thumb‑marks on the notice of divorce Exh. D.A". This is a writ petition with the prayer that the order of the Additional District Judge was without lawful authority.
2. Learned counsel for the petitioner contends that the certificate issued by the Chairman of the Union Committee that the respondent had divorced the petitioner, his wife, was a con clusive proof of the fact that the petitioner was no more the wife of the respondent, with the result that the suit filed by the respondent for restitution of conjugal rights was not competent and, therefore, the order of the learned Additional District Judge whereby he remanded the case was without any lawful basic.
3. In order to appreciate the contention raised by the learned counsel, it is necessary to examine the relevant provisions of section 7 of the Muslim Family Laws Ordinance and they are as follows:‑
"7. Talaq.‑(1) Any man who wishes to divorce his wife shall as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) .
(3) Save as provided in subsection (5), a talaq unless revoked earlier, expressly or otherwise, shall not be effective, until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under sub section (1), the Chairman shall constitute an Arbitration Council for the purposes of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation."
A divorce thus does not become effective unless the notice is served on the Chairman of the Union Committee or Council end 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 falls 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 on 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 reconciliation 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 talaq 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 Arbitration 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.
4. The case can be examined from another angle as well. If under subsection (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 a 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 days 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.
5. It was contended by the learned counsel that the plea raised by the respondent that he had not divorced the petitioner was tantamount to asking for a declaration from the Family Court that the petitioner was his lawfully wedded wife. The Family Court, he argued, had the jurisdiction under section 5 to entertain, hear and adjudicate upon matters only relating to dissolution of marriages, dowers, maintenances, restitution of conjugal rights, custody of children, guardianships, but has no jurisdiction to entertain a suit for deciding about the validity of a divorce pronounced under section 7 of the Muslim Family Laws Ordinance and that by the remand order the Family Court will have to adjudicate on a question which is beyond its jurisdiction.
We are unable to accept this contention. It is one thing to say that a Court has no jurisdiction to entertain a suit in respect of a particular matter and quite another that he cannot in respect of that matter raise a plea in defence in a suit which is within the competence of the Court. It is well settled in law that though a Court may not have jurisdiction to entertain a suit in respect of a certain matter, yet it is competent for the Court to entertain a plea based on that in defence, when the determination of that question is necessary for the decision of the suit itself e which is within its exclusive jurisdiction. A Small Cause Court cannot entertain a suit far declaration of title, but if in a suit which is within its pecuniary jurisdiction, the defendant raises a plea of title, the decision of which is necessary for the adjudication of suit, the Court has to decide the same. It is within the exclusive jurisdiction of the Family Court to entertain a suit for restitution of conjugal rights. The respondent, therefore, validly filed the suit In a Court of competent jurisdiction. The Court is required under law to decide the suit and if in deciding that it has to decide an issue the determination of which is necessary for granting or refusing the relief claimed in the suit, it must do so. The matter before the Court was whether or not the respondent was entitled to a decree for restitution of conjugal rights against the petitioner. The Family Court could not refuse or grant the relief prayed for unless it had first decided the issue raised by the petitioner that she had already been divorced and was not the wife of the respondent. The question whether the respondent had divorced the petitioner was not the basis of the suit, but had arisen in a suit for restitution of conjugal rights which was within the exclusive jurisdiction of the Family Court to entertain and decide.
6. The learned counsel contended that if the Chairman or the Arbitration Council does not issue a certificate the entire purpose and object of section 7 of the Ordinance will be frustrated.
We are not called upon to adjudicate on the propriety or expediency of the legislation, our functions being limited only to the interpretation and enforcement of the law. Nonetheless, we have no doubt in our mind that the provisions are in the public interest. They have obviated a lot of complications which had been experienced in the past. The provisions of section 7 are meant to prevent hasty dissolution of marriages by talaq pronounced by the husband unilaterally. Similarly, a recalcitrant husband or wife cannot now successfully raise the plea of divorce in the event a dispute arises between the spouses about their marital rights and obligations, unless it is substantiated by proving that notice as required by section 7 of the Ordinance y N had been served, There is now no possibility of any dispute, about the, status of a woman after the death of her husband that she has been divorced during his lifetime. 7 plea of some of the heirs that certain children of the deceased were born after the divorce and, therefore, were idegitimate also cannot successfully be advanced without proving compliance with section 7 by the husband. The Ordinance has, doubtless, ensured certainty about marital status.
The learned counsel next contended that if the Chairman does not issue the certificate, it may make the position of a wife uncertain and the husband may, notwithstanding the divorce, assert that he had not done so. The apprehension is unfounded, because the notice to the Chairman, if it is proved to have been given by him will furnish a proof of divorce unless the husband can prove that he revoked it before the expiry of ninety days.
Viewed from another angle, it may happen that someone may, in collusion with a wife, forge a notice and send it to the Chairman. He may also not appear before the Chairman to nominate his representative. It may also happen that someone on the basis of a forged notice obtain a certificate from the Chairman that the marriage has been dissolved. In such cases, to preclude the husband from proving in his case for restitution of conjugal rights that he had not divorced his wife will amount to putting premium on forgery and fraud. There is no bar in law for the husband to contest the genuineness or validity of the notice. If it is proved that the husband did not give the notice, the entire proceedings based on that before the Chairman, under the Ordinance, would be a nullity in the eyes of law. However, C in the event the wife successfully proves that the notice was, in fact, sent by him or that when appeared before the Chairman he did not dispute the notice, the divorce will become effective unless he is able to establish that he revoked the divorce before the expiration of ninety days.
8. On the above vire of the matter, I find no force in this petition which is hereby dismissed in limine.
K. B. A. Petition dismissed.
