Where the Judge Family Court had decreed the suit for maintenance allowance against grandfather of the minor on wrong premise by treating him as his father instead of grandfather, said judgment being against the principle of fair trial was not sustainable. Case is remanded for decision afresh.
PLJ 2010
Constitution of
----Art. 199--Family Courts Act, 1964, S. 17-A--Constitutional petition--Right of cross-examination was closed--Petitioner filed an application before Family Court to frame appropriate issues--Application was dismissed--Challenge to--Question of--Interim orders passed in family cases can be assailed in writ jurisdiction--Interference in interlocutory order and in proceedings of Trial Court--Validity--Relief was refused unless interim orders bear characteristics of effect of final order--Interim order could not be subjected to judicial scrutiny in writ jurisdiction--Held: Order assailed in the instant writ petition is of interim in nature it does not bear the characteristic of final order--Writ petition was dismissed. [P. 403] C
Writ Jurisdiction--
----Interim orders passed in family cases can be assailed in writ jurisdiction--Validity--Against interim order in family cases High Court can interfere in writ jurisdiction. [P. 402] A
PLJ 1986 Lah. 541, PLD 1982 Lah. 168, PLD 1982 Lah. 92, 1988 MLD 2949, NLR 1988 Lah. 599, 1994 CLC 14 & NLR 1995 Civil 134, rel.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Constitution of
2008 CLC 585 rel.
Syed Athar Hassan Bukhari, Advocate for Petitioner.
Date of hearing: 16.12.2009.
Through this constitutional petition, the petitioner seeks setting aside of the order dated 10.11.2009 passed by learned Judge Family Court, on the application of the petitioner, for framing of appropriate issues in the light of divergent pleadings of the parties. Learned Judge Family Court not only dismissed the application, also recorded the evidence of the defendant, DW-1 to DW-3 the same day.
2. Brief facts of the instant case are that Mst. Muddasar Nawaz daughter of Haji Muhammad Nawaz filed a suit for dissolution of marriage against the petitioner. Respondents Nos. 2 & 3 filed suit for maintenance allowance alleging therein that Respondent No. 2 married with petitioner on 25.12.2003 and out of this wedlock Respondent No. 3 was born on 23.08.2006. In the beginning relations between the spouses remained cordial which later on become strained. It is alleged in the suit that the petitioner expelled them from the house in three clothes. The petitioner/defendant contested the suit and filed separate written statements, controverted the contents of each suit. In the written statement it was alleged that Mst. Muddasar Nawaz got benefit of Rs. 9,00,000/- during the "abadi" period when she was going to participate in the marriage ceremony of her younger sister. At that time she took golden ornaments, detail of which has been given in the written statement. He took stance that he never expelled the petitioner from his house. He still wants her re-union.
3. At one stage, the case was transferred from the Court of Abid Hussain Malik, Judge Family Court to the Court of Mr. Jalil Ahmad, Judge Family Court on 06.12.2009.
4. Later on the petitioner/defendant dis-appeared from the Court and ex-parte proceedings were initiated against the petitioner. The petitioner submitted an application for setting aside ex-parte proceedings which was accepted subject to payment of cost of Rs. 200/- vide order dated 07.10.2009.
5. Learned counsel submits that no proper issues were framed from the divergent pleadings of the parties and on 12.10.2009 only one following issue was framed.
Issues.
"Whether plaintiff is entitled to the decree as prayed for in the plaint? OPP"
6. On 2.11.2009 the aforesaid suit was consolidated with the suit for maintenance allowance and following additional issue was framed.
"Whether the plaintiff is entitled to the decree of dissolution of marriage? OPP."
7. On 02.11.2009 the examination-in-chief of PW-1 and PW-2 were recorded but the counsel for the petitioner was ill and cross-examination was not held. Learned counsel submits that the Judge Family Court without granting fair and square opportunity of cross-examination closed his right of cross-examination on 2.11.2009. On 10.11.2009 the petitioner submitted an application before Judge Family Court to frame the appropriate issues and dismissed the application on 10.11.2009. Present writ petition is filed, to assail the order passed by learned Judge Family Court on 10.11.2009 which is of interim in nature and does not reflect characteristic of final adjudication of the dispute. In family matters interim orders cannot be assailed through constitutional petition unless any interim order attains the characteristic of final order. Learned counsel for the petitioner was asked to assist this Court, on law point, interim orders passed in family cases can be assailed in writ jurisdiction. He made reliance on PLD 1982 Lahore 168 (DB), PLD 1982
8. In all these judgments cited above not in a single judgment it is held that against interim order in family cases this Court can interfere in writ jurisdiction. I concur the view expressed by my learned brother, J., in "Ishfaq Ahmad vs. Judge Family Court" (2007 YLR 1550). In this case defendant failed to file written statement the right of defence to file written statement, was struck off. The said order was challenged in the constitutional jurisdiction. Interference in interlocutory order and in the proceedings of the trial Court in the pending family suit before the learned Judge Family Court, was refused. It was held by the learned Judge that if suit was decided against the defendant ultimately and he wanted to file an appeal there it would be open for him to assail impugned order in the appeal but in writ jurisdiction the learned Judge refused to interfere in the interim order of the Judge Family Court. The learned brother Judge also observed that scope of appeal is wider than that of writ petition. In another case reported as "Abdul Karim vs. Ata Mansoor" (2007 CLC 1671), an application filed under Order VII Rule 11 of CPC before the learned Judge Family Court for rejection of plaint which was refused. Against this order writ petition was filed the same was also dismissed on the point of maintainability. Against an interim order writ petition is not maintainable unless the interim order gets the characteristics of final order. In case reported "Muhammad Irfan vs. Judge Family Court" (2008 CLC 585 (c)), interim maintenance allowance was fixed by the learned Judge Family Court under Section 17-A of the Family Courts Act, 1964, which was challenged in the constitutional jurisdiction. Relief was refused unless interim orders bear characteristics of effect of final order. Interim order could not be subjected to judicial scrutiny in writ jurisdiction. I concur the view expressed in these three cases. Order assailed in the instant writ petition is of interim in nature it does not bear the characteristic of final order. I would not like to interfere in this order in writ jurisdiction. This writ petition is dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2010
----S. 10--(Family Courts (Amendment) Ordinance, (LV of 2002)--Proviso was added--Power to pass a decree for dissolution of marriage forthwith if reconciliation fails--Held: Family Court is not obligated to follow the sequential order given in S. 10 of Family Courts Act, in the event of failure of reconciliation, where a decree for dissolution of marriage is sought on the ground of Khula. [P. 106] A
----S. 10(4)--Proviso--Jurisdiction of Family Court--Khula--No scope was left to live together--Validity--S. 10(4) of Family Courts Act, has conferred powers and jurisdiction to dissolve a marriage on the basis of khula, if despite efforts made by it for reconciliation no scope was left for spouses to live together. [P. 107] B
----Scope & object of--Provision was enacted to avoid unnecessary delays which occurred in the past when suits for dissolution of marriage were tried like ordinary civil suits and it took years for such suits to reach a conclusion causing hardship and misery for the woman who was dragged through endless litigation involving a union that had practicals come to an end. [P. 107] C
Khula--
----Dissolution of marriage--Jurisdiction of Family Courts--To suppress such mischief the legislature had enacted S. 10(4) conferring jurisdiction on Family Courts to dissolve the marriage forthwith on the basis of Khula, if despite efforts made for reconciliation the wife refused to reconcile and go back to her husband. [P. 107] D
PLD 1984 SC 549, PLD 1983 Lah. 549, 1999 YLR 875, 2004 YLR 3090, 2005 CLC 909, 2005 YLR 1648, 2005 CLC 1844 & PLD 2007 Lah. 425, ref.
----S. 10(4)--Re-conciliation efforts between the parties had failed--Family Court proceeded to pass an order for dissolution of marriage on the basis of Khula--Validity--Family Court, correctly exercised his jurisdiction to decree the suit u/S. 10(4) of Family Courts Act, on the basis of Khula--Petitioner had not mentioned any thing in the petition which might even remotely suggest, either that there was any defect in pre-trial reconciliation proceedings or that such reconciliation efforts had not failed--Finding of trial Court was unexceptionable and no interference was called for. [P. 107] E
Maintenance--
----Interim maintenance for minor child--Challenge to--Grounds of--Petitioner was unable to pay the amount of Rs. 1500/- per month as his monthly income was only of Rs. 5000/--Validity--Held: Hardly furnishes any justification to withhold payment of maintenance allowance for a minor child--There was sufficient material on record to warrant a tentative assessment of the petitioner's income by Family Court and fixation of tentative maintenance allowance--This has fairly and reasonably been done by Courts below after due application of mind, considering the basic needs of a minor child--Petition was dismissed. [P. 107] F
Mr. Muhammad Sharif Chohan, Advocate for Petitioner.
Date of hearing: 1.10.2009.
This petition arises out of an order dated 30.6.2009 passed by the learned Judge Family Court,
2. Arooj Lateef, Respondent No. 2 herein, was married to the petitioner on 21.10.2007. Differences arose shortly after marriage between the spouses. Arooj Lateef, therefore, filed two suits against the petitioner for dissolution of marriage and maintenance, dowry articles and birth expenses of Rs. 10.000/-. Parties were summoned by the learned Family Judge. The petitioner filed written reply to both the suits. He took legal as well as factual objections/defences in his written replies.
3. On 30.6.2009 Arooj Latif made a statement before the learned Judge Family Court that she did not want reconciliation with the petitioner and that her suit for dissolution of marriage should be decreed on the basis of Khula. In view of the statement of the plaintiff and having satisfied himself that re-conciliation efforts between the parties had failed, the Judge Family Court proceeded to pass an order for dissolution of marriage on the basis of Khula in terms of Section 10(4) of the Family Courts Act, 1964.
4. In the other suit for maintenance etc., the learned Judge Family Court passed an order dated 30.6.2009. He fixed tentative interim maintenance allowance for the minor daughter of the parties in the sum of Rs.1500/- per month to be paid by the defendant before 14th day of every month. Although the petitioner has challenged both the aforesaid orders through this petition, the learned counsel did not address any arguments regarding the order relating to fixation of interim maintenance allowance. This Court is, therefore, justified in concluding that he has abandoned that challenge.
5. As far as the order dated 30.6.2009 is concerned, whereby decree for dissolution of marriage was passed, the learned counsel has argued that the order is illegal. According to him it was passed without providing to the petitioner an opportunity of being heard. The learned counsel has further argued that the provisions of Section 10 of the Family Courts Act, 1964 are mandatory and after a pre-trial hearing as ordained by sub-section (1) and, if necessary, after going through the procedures provided in sub-sections (2) and (3), the Court is required to frame issues and fix a date for recording of evidence. The learned counsel contends that the aforesaid mandatory requirements have not been fulfilled. Hence the order dated 30.6.2009 whereby dissolution of has been ordered is illegal and is liable to be set aside.
6. I have considered the arguments advanced by the learned counsel for the petitioner. I do not find myself in agreement with his interpretation of Section 10 of the Family Courts Act, 1964 and its proviso. The proviso to Section 10 of the West Pakistan Family Courts Act, 1964, was added by the Family Courts (Amendment) Ordinance (
7. The proviso to sub-section (4) of Section 10 of West Pakistan Family Courts Act 1964 has conferred powers and jurisdiction on Family Courts to dissolve a marriage on the basis of "Khula" if despite efforts made by it for reconciliation no scope was left for spouses to live together. Proviso to Section 10(4) is couched in such language, containing a non-obstente clause giving wide power to the Family Court to dissolve the marriage when facts of the case would permit such course. The provision was enacted to avoid unnecessary delays which occurred in the past when suits for dissolution of marriage were tried like ordinary civil suits and it took years for such suits to reach a conclusion causing hardship and misery for the woman who was dragged through endless litigation involving a union that had practically come to an end. To suppress such mischief the legislature had enacted this beneficial provision conferring jurisdiction on Family Courts to dissolve the marriage forthwith on the basis of "Khula" if despite efforts made for reconciliation the wife refused to reconcile and go back to her husband. In this regard reference can usefully be made to PLD 1984 SC 549, PLD 1983 Lahore 549, 1999 YLR 875, 2004 YLR 3090, 2005 CLC 909, 2005 YLR 1648, 2005 CLC 1844 and PLD 2007 Lahore 425. In all the aforesaid judgments the power of the Family Court to pass a decree for dissolution of marriage, forthwith, on failure of conciliation proceedings has been affirmed. It is evident from a perusal of the order dated 30.6.2009 as well as the statement of Arooj Lateef that pre-trial reconciliation efforts did not succeed. The learned Judge Family Court, therefore, correctly exercised his jurisdiction to decree the suit under Section 10(4) of the Family Courts Act, 1964 on the basis of "Khula". The petitioner has not mentioned any thing in the petition which may even remotely suggest either, that there was any defect in the pre-trial reconciliation proceedings or that such reconciliation efforts had not failed. The finding of the trial Court is unexceptionable and no interference is called for.
8. As far as the order relating to interim maintenance for the minor child is concerned, the only grounds mentioned in the petition to challenge the same are that the petitioner is unable to pay the said amount as his monthly income allegedly is only Rs. 5,000/- and that the order in Question will strain his financial resources. In the absence of any material on record to support this position, to my mind, this hardly furnishes any justification to withhold payment of maintenance allowance for a minor child. There is sufficient material on record to warrant a tentative assessment of the petitioner's income by the learned Judge Family Court and fixation of tentative maintenance allowance. This has fairly and reasonably been done by the learned Courts below after due application of mind; considering the basic needs of a minor child. Even otherwise, as stated above, the learned counsel has not addressed any arguments against the said order and has skirted repeated inquiries from this Court as to whether or not the said amount is being paid by the petitioner.
9. In view of what has been discussed above, I do not find any flaw or jurisdictional error in the findings of the learned lower Courts. There is no merit in the petition, it is, therefore, dismissed in limine.
(R.A.) Petition dismissed.
2022 C L C 391
PLJ 2011
Constitution of
----Art. 199--Suit was dismissed on technicality--Amendment of plaint--Suit for maintenance was dismissed for plaintiff, being a major, she had filed the suit through her mother as her next best friend--Validity--Technicality could have been fixed by directing him to file an amended plaint by deleting her mother's name--Thus, the suit was held to have been wrongly dismissed. [P. 405] A
Res Judicata--
----Principle of res-judicata--Applicability on maintenance suits--In matter of maintenance the principle of res-judicata was not applicable--The only time off-spring cannot claim maintenance was, in the case of a boy, on attaining the age of majority and for a girl on getting married because after her marriage her husband becomes her guardian and is bound to provide for her--In case of divorce the father again puts on the matter of a guardian and is bound to provide for her. [P. 405] B
Marriage--
----Essential conditions--Free will--It was directed by Islam that both parties to a marriage should be amenable to trying the marital knot--A girl could not be compelled into a marriage against her will. [P. 406] C
Maintenance--
----Period of maintenance--Qanoon-e-Shahadat Order--Applicability--Powers of Family Court--Proceedings under the Muslim Family Court Act, 1964 were not bound by the provisions of the Qanoon-e-Shahadat--Family Court could allow all evidence, to arrive at a just conclusion. [P. 406] D
Ch. Tanvir Ahmad Hanjra, Advocate for Petitioner.
Date of hearing: 23.7.2009.
This W.P. No. 14799/2009 has been filed impugning judgments/decrees dated 20.03.2008 and 17.06.2009. The latter of the two is a consolidated judgment which also pertain to matters between the Petitioner and his ex-spouse. However, the matter agitated before me pertains to the quantum and period of maintenance allowed in favour of Respondent No. 3 who is the Petitioner's daughter. The petitioner is aggrieved that maintenance granted in favour of Respondent No. 3 is excessive and the period, too long.
2. The counsel for the petitioner contends that Respondent No. 3's first suit for recovery of maintenance was dismissed on merits therefore the principle of res judicata is applicable.
3. It is further contended that maintenance cannot be granted for six years to Respondent No. 3, who is his daughter. It is also asserted that he was paying maintenance for her till she attained the age of majority and that now being a major she is not entitled to any further maintenance from him. Apart from this ground another one has been agitated and that is that Respondent No. 3 is not accepting a marriage proposal suggested by him, thus she disentitles herself to any maintenance. The last contention is that the evidence produced by Respondent No. 3 was not relied upon and produced later and that the Trial Court has erred in allowing it.
4. Arguments heard. Record perused.
5. The contention of the petitioner that Respondent No. 3's previous suit was dismissed on merits is incorrect because the suit was dismissed on a technicality, which was that being a major she had filed the suit through her mother as her next best friend. This technicality could have been fixed by directing Respondent No. 3 to file an amended plaint by deleting her mother's name. In my opinion it was wrongly dismissed.
6. The other contention that the principle of res judicata is applicable is again wrong as in matters of maintenance for progeny the principle of res judicata is not applicable. The only time off-spring cannot claim maintenance is, in the case of a boy, on attaining the age of majority and for a girl on getting married because after her marriage her husband becomes her guardian and is bound to provide for her. In case of divorce the father again puts on the mantle of a guardian and is bound to provide for her.
7. As far as the contention of the petitioner, that Respondent No. 3 has attained the age of majority thus is not entitled to maintenance is concerned, I do not find it tenable. A father is bound to provide for his daughters till they get married.
8. Where the petitioner contends that Respondent No. 3 is not entitled to maintenance because she has refused the marriage proposal suggested by him, I am not inclined to agree at all. The petitioner has neglected Respondent No. 3 all these years. She has been reared and nurtured by her mother, the petitioner cannot now waltz into her life and impose his will on her. In any case it is directed by Islam that both parties to a marriage should be amenable to tying the marital knot. A girl cannot be compelled into a marriage against her will.
9. Where the period of maintenance is concerned, the Courts below observed, the petitioner has failed to prove that he had been paying maintenance. The mother of Respondent No. 3 has been tending to all her needs without any financial assistance. The Courts below, I feel have decided the period of maintenance after assessing all the facts in the right perspective.
10. The last contention of the petitioner that the Trial Court erred in allowing Respondent No. 3 to produce evidence not relied upon in her list of reliance is not tenable at all. Proceedings under the Family Courts Act, 1964 are not bound by the provisions of the Qanun-e-Shahadat Family Court can allow all evidence, to arrive at a just conclusion.
11. I find all the contentions raised by the petitioner not tenable. Moreover both the Courts below are in consonance that Respondent No. 3 is entitled to recover maintenance from her father, the Petitioner, the only difference is in the quantum of maintenance granted. I feel that in these days of double digit inflation the Appellate Court has lightly enhanced the maintenance to Rs.5000/- per month as opposed to Rs.1500/- per month granted by the Trial Court, which is a pittance. Finally, I am not inclined to interfere in the facts as ascertained by the Courts below.
The writ petition is devoid of merits. It is dismissed in limine.
(R.A.) Petition dismissed.
2022 MLD 300
2022 Y L R 181
PLJ 2011
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 7(1)--West Pakistan Muslim Family Rules under the Muslim Family Laws Ordinance, 1961--Rule 3(b)--Pronouncement of divorce--Service of notice of divorce--Change of residence of wife--Question of effectiveness of talaq--Contention of petitioner that service of notice at her current address, are of no legal effect, that should have been filed in union council where at the time of pronouncement of divorce she was residing--Held: Husband proceeded to take steps including pronouncement of divorce afresh and sent intimation to all concerned including the petitioner, her two brothers and Administrator Union Committee--Present petition was yet another attempt on the part of the petitioner to delay what had unfortunately become inevitable. [P. 343] A
Process of Re-conciliation--
----Law provides a mechanism where under the parties are provided an opportunity to reconcile their differences through intermediaries by engaging in the process of re-conciliation through arbitrators--However, where such efforts fail, despite lapse of three months, law presumes that re-conciliation is not possible and there has been an irretrievable break down--Thereupon the parties were allowed to undo the marriage tie and both parties could walk away, if they so wish with dignity and grace. [P. 343] B
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----Preamble--West Pakistan Muslim Family Law Rules, 1961, Preamble--Law and rules are not meant to prolonge the agony for one party or the other on the basis of technicalities and hairsplitting, such is not the intention of law. [P. 343] C
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 7(1)--West Pakistan Muslim Family Laws Rules, 1961--R. 3(b)--Scope of--Provisions of S. 7(1) and Rule 3(b) are directory in nature as no penalty is provided for their non-compliance--Non service of notice is a mere irregularity and does not effect validity of a divorce validly pronounced and communicated--Petition dismissed. [P. 343] D
PLD 2005 Kar. 358, 1992 SCMR 1272 & 1994 SCMR 2098 rel.
Sh. Shahid Waheed, Advocate for Petitioner.
Ch. Muhammad Ameen Javed, Advocate for Respondents.
Date of hearing: 16.11.2009.
This petition arises from proceedings for dissolution of marriage initiated by Respondent No. 1 against the petitioner. The petitioner and Respondent No. 1 were married on 27.02.1992 at
2. It appears from the record that after pronouncement of divorce on the petitioner, Respondent No. 1 signed and executed a divorce deed on 27.02.1992, which was duly signed and attested by two witnesses. A copy of the divorce deed alongwith a cover letter was sent to Chairman Arbitration Council No. 127 Model Town Lahore. The said office sent a notice at the aforesaid address. The notice was received by Mr. Hassan Kamran Bashir, who filed an application before the Chairman Arbitration Council Union Council No. 127, Model Town, Lahore stating that his sister was residing with her younger brother namely Hassan Danial Bashir at Eden Canal Villas, Thokar Niaz Beg, Lahore.
3. While the aforesaid events were occurring, two significant events took place: First, the petitioner filed an application under Section 9 of the Muslim Family Laws Ordinance, 1961 before Union Council No. 119, Shah Pur, District Lahore within whose jurisdiction the property in
4. The petitioner also filed an application before the District Officer (Revenue),
5. Having authentic knowledge of the residential address of the petitioner by way of statement made before this Court by her brother, Respondent No. 1 issued a fresh letter dated 02.07.2009. Through the said letter the respondent informed the petitioner that he had divorced her vide divorce deed (Talaq Nama) dated 22.11.2008. He nevertheless pronounced Talaq upon the petitioner once again through the aforesaid letter dated 02.07.2009. The letter, which was witnessed by two persons, was sent to the petitioner at 6-Army Flats (MOQ) Girja Chowk, near PSO Petrol Pump,
6. The aforesaid notice appears to have been received by the petitioner as well as by Respondent No. 2. On receipt of the said notice Respondent No. 2 summoned the petitioner vide order dated 2.07.2009 for 09.07.2009. The order sheet of Respondent No. 2 indicates that on 09.07.2009, neither the petitioner nor her representative appeared. The record of Respondent No. 2 indicates that the petitioner was served on 02.07.2009 as is evident from the report of Zaheer Ahmad, Process Server of the Cantonment Board Lahore Cantt. Notices were also sent through ordinary post as well as registered post acknowledgment due. It is not clear from the record whether or not notices sent by post were received by the petitioner. Respondent No. 2 nevertheless, vide order dated 09.07.2009, directed that the petitioner be summoned through registered notice and citation in the newspaper. The citation appeared in daily "Jang" on 25.07.2009. It is evident from the record that the petitioner had notice of pendency of the proceedings before Respondent No. 2, as she filed an application for dismissal of the application for issuance of certificate of Talaq on 20.08.2009. The said application is available in the record of Respondent No. 2, which has been summoned and examined by this Court. In view of the fact that the Chairman Arbitration Council was not available on 20.08.2009, the matter was adjourned to 03.09.2009, whereafter it was adjourned to 29.09.2009. It is noticed that either Respondent No. 1 or his duly authorized Arbitrator were available and attended the proceedings on each of the aforementioned dates. Neither the petitioner nor any of her representatives attended the proceedings before Respondent No. 2 despite notice.
7. On 18.09.2009, the petitioner filed the present petition praying that proceedings before Respondent No. 2 regarding issuance of Talaq Certificate in pursuance of application of Respondent No. 1 may be quashed/set aside as the same were illegal and void ab-initio. Vide order dated 18.09.2009, the petition was admitted to regular hearing. Notice was issued to the respondents for 15.10.2009. In the meantime proceedings before Respondent No. 2 were stayed.
8. The main point agitated by the learned counsel for the petitioner is that in terms of Section 7 of the Muslim Family Law Ordinance, 1961 read with Rule 3(b) of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, Respondent No. 1 was obliged to send a notice/intimation of divorce to Union Council No. 119 Shah Pur within whose jurisdiction, the petitioner was residing at the time the divorce was pronounced. It would be useful to reproduce the provisions of Section 7(1) and Rule 3(b), ibid, which read as follows:--
Section 7(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.
Rule 3(b) The Union Council which shall have jurisdiction in the matter for the purpose of clause (d) of Section 2 shall be as follows, namely;
(a).........
(b) in the case of notice of talaq under sub-section (1) of Section 7, it shall be the Union Council of the
Provided that if at the time of pronouncement of talaq such wife was not residing in any part of
(i) in case such wife was at any time residing with the person pronouncing the talaq in any part of West Pakistan, the Union Council of the Union or Town where such wife so last resided with such person; and
(ii) in any other case, the Union Council of the
9. The learned counsel for the petitioner submits that a combined reading of Section 7(1) and Rule 3(b) makes it abundantly clear that notice of divorce is required to be served on Union Council of Union or Town where the wife in relation to whom Talaq has been pronounced was residing at the time of pronouncement of Talaq. It is further submitted that if it is held that Union Council Shah Pur has no jurisdiction in the matter, the decree passed in favour of the respondent shall be rendered null and void. When confronted with the order of this Court dated 22.06.2009, which was not challenged any where, the learned counsel submits that jurisdiction cannot be conferred by consent and points out that if jurisdiction vested in Union Council Shah Pur, the same could not by consent of parties be shifted to Union Council Cantonment.
10. The learned counsel for the Respondent No. 1, on the other hand, points out that he exercised his right to divorce the petitioner on 22.11.2008. He has since then been entangled in a prolonged round of litigation on the basis of one technicality or another. He submits that it was in order to set the matter at rest once and for all, that the address of the place of residence of the petitioner was requested to be incorporated in the order of this Court on 22.06.2009 and the respondent was allowed by this Court to initiate proceedings in light of the aforesaid address. Pursuant to order dated 22.06.2009, the Respondent No. 1 pronounced a fresh Talaq on 02.07.2009, sent the document to the petitioner, her two brothers as well as to Respondent No. 2. He further submits that requirements of Section 7(1) and Rule 3(b) ibid are directory and not mandatory in nature, in view of the fact that no penalty has been provided in the event of violation of the same. Reliance is placed on Batool Tahir through Nominee/ Representative/Special Attorney Mustejab Zehra Vs. Province of Sindh through Secretary Local Government Sindh and 3 others (PLD 2005
11. It is further pointed out that even if for the sake of argument and without conceding, it is admitted that the petitioner was residing within the jurisdiction of Union Council Shah Pur at the time of pronouncement of divorce, the same stood superceded by subsequent pronouncement on 02.07.2009, notice of which was sent at the address provided by the petitioner in this Court, as incorporated in order dated 22.06.2009.
12. The learned counsel further submits that the principle that jurisdiction cannot be conferred by consent relates only to pecuniary jurisdiction. However in matters involving family disputes, the jurisdiction can be conferred by the consent of the parties, especially in the present case such jurisdiction stood conferred with consent by reason of order dated 22.06.2009.
13. I have heard the learned counsel for the parties at length. I have also examined the record including the original record relating to this matter produced by Respondent No. 2. Respondent No. 1 had pronounced divorce on the petitioner on 22.11.2008. The requisite notice/intimation were sent to Union Council No. 127 Model Town,
14. Subsequently, she initiated proceedings for recovery of maintenance before U.C. No. 119 Shah Pur on 28.02.2009. While the matter was still in limbo W.P. No. 4481/2009 was filed on 06.03.2009. The said petition finally came up for hearing on 22.06.2009, when the aforesaid order was passed, in which the petitioner's real brother namely Hassan Kamran Bashir provided her residential address at Army Flats (MOQ) Girja Chowk near PSO Petrol Pump Tufail Road, Lahore. It is significant to note that this Court recorded in its order that the respondent could initiate proceedings in light of the aforesaid address, if so advised. No objection to the said order was taken on behalf of the petitioner. Further the aforesaid order was not challenged anywhere and has therefore, attained finality.
15. On the basis of the aforesaid order, Respondent No. 1 pronounced divorce again and intimated the petitioner regarding the same through a written communication dated 02.07.2009. As mentioned above, the said document was sent to the petitioner, her two brothers as well as to Respondent No. 2. It is not the case of the petitioner that the said document was not received. Her only objection to the same is that in terms of provisions of law mentioned above i.e. Section 7(1) and Rule 3(b), subsequent pronouncement of divorce and the service of notice at her current address, are of no legal effect, because these were required to be filed with Union Council Shah Pur, because she was residing within the jurisdiction of said Union Council when the divorce was earlier pronounced.
16. It is apparent from the admitted facts of this case that the petitioner has changed her place of residence a few times. Therefore, the fact that the place of residence and address of the petitioner was provided by her real brother to this Court, which was incorporated in the order dated 22.06.2009, is of vital importance in this lis. On the faith of the information provided to this Court and the observation made by this Court, Respondent No. 1 proceeded to take steps including pronouncement of divorce afresh and sent intimation to all concerned including the petitioner, her two brothers and Respondent No.
17. The provisions of Section 7(1) and Rule 3(b) are directory in nature as no penalty is provided for their non-compliance. It has been held that non service of notice is a mere irregularity and does not effect validity of a divorce validly pronounced and communicated. The rationale for providing for notice of divorce to be sent to the Union Council of the area where the wife resides is to facilitate her participation in the proceedings, if she so desires. This purpose, under the facts and circumstances of the present case was adequately served, by service of notice at her current address and the Union Council of the area where she is presently residing, which has taken cognizance of the matter. It is not her case that she has not been served or does not have notice. Even otherwise she is estopped from taking any other position at this stage, having provided her current address during proceedings before this Court. She did not challenge the order dated 22.06.2009 passed by this Court which clearly stated that the "Respondents can initiate proceedings in light of the above address". The said order has attained finality.
18. The divorce pronounced on 02.07.2009 was validly pronounced if one were to look at the case from a purely technical point of view. It was pronounced thrice in the presence of witnesses. It was duly communicated to the petitioner at the address provided by her where she was admittedly residing at the time the said divorce was pronounced. Intimation was sent to Respondent No. 2, who has since initiated proceedings and according to the information provided to this Court, the requisite period of 90 days has expired on 29.09.2009. The petitioner had ample notice and opportunity to participate in arbitration proceedings, which she chose not to attend. There is neither lawful reason nor justification at this stage to quash or set aside the proceedings before Respondent No. 2 or to restrain the said respondent from issuing the requisite certificate on expiry of 90 days.
19. In view of what has been stated above, I do not find any force in this petition. It is accordingly dismissed.
(M.S.A.) Petition dismissed.
