JUDGMENT SHEET

LAHORE HIGH COURT, BAHAWALPUR BENCH,

BAHAWALPUR
JUDICIAL DEPARTMENT

Writ Petition No.6782 of 2019/BWP

Mst. Asma Bibi Vs. Chairman Reconciliation Committee, etc.

JUDGMENT

Petitioner (s): Mr. Muhammad Ayaz Kalyar, Advocate

Respondent(s): Mr. Zohaib Abdullah Akhtar, Advocate for

respondent No.4

Mazhar Hussain Anjum, Secretary, Union

Council Chak 94/NP No.83, Tehsil
Khanpur, District Rahim Yar Khan

Date of hearing: 28.01.2020

SHAHID BILAL HASSAN-J: Precisely, the petitioner

contracted marriage with Imdad Ullah/respondent No.3, who is
residing in USA. The respondent No.3 sent a visa to the
petitioner and her real daughter aged 5 years, so they could
settled there (USA). Allegedly, the respondent No.3 on the
instigation of respondent No.4, his brother, prepared a fake,
forged and bogus divorce deed in the name of the petitioner and
then sent her back to Pakistan; that the divorce deed was not in
the knowledge of the petitioner and her daughter, which fact
was intimated to them after four months of returning back to
Pakistan, hence, the petitioner enquired about the said fact from
the Union Council concerned, then on query it was informed
that the divorce had been confirmed ex parte, allegedly, in
connivance of respondents No. 1 and 4 without issuing any
notice to the petitioner or her family members including her
father, because the respondents NO.1 and 2 did not serve any
notice to the petitioner or her family members. The respondent
No.3 issued a Salsee Nama in favour of respondent No.4
W.P.No.6782 of 2019/BWP 2

regarding performance of his role as Arbitrator (Salis) in this

matter on 20.11.2013. Allegedly, the respondent No.3 through
his brother respondent No.4 had written a divorce deed on a
blank paper on 01.08.2018, while the respondent No.3 had not
affixed his thumb impressions or his signatures upon the said
divorce deed, however, the respondent No.4 affixed his thumb
impressions and signatures upon the same. Upon said divorce
deed, the respondent No.1 issued notice of divorce through
respondent No.4 and then through respondent No.1 himself on
01.08.2018 on the same date; that on 01.10.2018, the
respondent No.1 again issued a notice for 01.11.2018 in the
name of the petitioner. On 14.11.2018, the respondent No.1/
The Chairman, Reconciliation Committee, Union Council Chak
No.94/NP, Khanpur, District Rahim Yar Khan passed an ex
parte order for confirmation of divorce to the petitioner on
behalf of respondent No.3 through respondent No.4, wherein
presence of respondent No.3 was never shown; that the
Secretary, Union Council ibid issued impugned divorce
registration certificate bearing No.Z10224574 on 21.01.2019.
Through the instant constitutional petition, the impugned
divorce registration certificate dated 21.01.2019 and impugned
order of confirmation dated 14.11.2018, have been challenged
contending the same to be illegal, void ab initio, against the
facts, ex parte, without any notice to the petitioner or her father
and hence, liable to be set aside.
2. Heard.
3. The only point in issue is the assumption of
jurisdiction by the respondent No.1/Chairman, Union Council
Chak No.94/NP, Khanpur, District Rahim Yar Khan in order to
pass the impugned order dated 14.11.2018 and to issue the
impugned divorce registration certificate dated 21.01.2019.
Section 2(b) and 7 of the Muslim Family Laws Ordinance, 1961
and Rule 3(b) of the West Pakistan Rules under the Muslim
W.P.No.6782 of 2019/BWP 3

Family Laws Ordinance, 1961 are necessary to be reproduced,

which read:-
‘Section 2(b):- “Chairman” means the Chairman
of the Union Council or a person appointed by the
Federal Government in the Cantonment areas or
by the Provincial Government in other areas or by
any officer authorized in that behalf by any such
Government to discharge the functions of
Chairman under this Ordinance.’
‘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 a notice in writing of his having
done so, and shall supply a copy thereof to the
wife.
(2) Whoever, contravenes the provisions of
subsection (1) shall be punishable with simple
imprisonment for a term which may extend to one
year, or with fine which may extend to five
thousand rupees, or with both.
(3) Save a 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 purpose
of bringing about a reconciliation between the
parties, and the Arbitration Council shall take all
steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time talaq is
pronounced, talaq shall not be effective until the
W.P.No.6782 of 2019/BWP 4

period mentioned in subsection (3) or the

pregnancy, whichever be later, ends.
In order to resolve the matter in hand, as the respondent No.3 is
permanently residing in USA and petitioner was also there at
the time of alleged Talaq, Notification/S.R.O.No. 1086(K)61
dated 09.11.1961 is also relevant, which reads:-
‘In exercise of the powers conferred by clause (b)
of section 2 of the Muslim Family Laws
Ordinance, 1961 (VIII of 1961), the Central
Government is pleased to authorize the Director
General (Administration) Ministry of External
Affairs to appoint officers of Pakistan Mission
abroad to discharge the functions of Chairman
under the aforesaid Ordinance.’
Rule 3(b) of the Rules provides:-
‘Rule 3. 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 subsection
(1) of section 7, it shall be the Union Council of
the Union or Town where the wife in relation to
whom talaq has been pronounced was residing,
at the time of the pronouncement of talaq:
Provided that if at the time of pronouncement of
talaq such wife was not residing in any part of
West Pakistan, the Union Council that shall
have jurisdiction shall be –
(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
W.P.No.6782 of 2019/BWP 5

(ii) in any other case, the Union Council of the

Union or Town where the person pronouncing
the talaq is permanently residing in West
Pakistan;’
In view of the above said provisions of law, the Union Council
and/or the Chairman, which would have jurisdiction in the
matter would be the Union Council and/or the Chairman within
whose territorial jurisdiction the wife was residing at the time
of pronouncement of divorce. Reliance is placed on Mt.
Sharifan v. Abdul Khaliq and another (1983 CLC 1296) and
Ms. Sadaf Munir Khan v. Chairman, Reconciliation Committee
and 2 others (PLD 2019 Lahore 285). The petitioner has
categorically asserted in the instant constitutional petition
which is supported by an affidavit that at the time of alleged
pronouncement of talaq she was residing in USA, so as per
Notification/S.R.O.No. 1086(K)61 dated 09.11.1961, officers of
Pakistan Mission abroad are authorized to discharge the
functions of Chairman under the aforesaid Ordinance. Meaning
thereby the Chairman, Union Council Chak No.94/NP, Khan
Pur, District Rahim Yar Khan had no authority to exercise that
authority which he has exercised, because in absence of a
counter affidavit or other material in rebuttal, the averments of
facts made in a petition, which is supported by an affidavit, the
same is to be accepted as correct as has been held in Islamic
Republic of Pakistan through Secretary, Ministry of Defence,
Government of Pakistan, Rawalpindi and another v. Amjad Ali
Mirza (PLD 1977 Supreme Court 182) and followed by this
Court in the judgment of Ms. Sadaf Munir Khan ibid.
In addition to the above, it is an admitted fact on record
that Imdad Ullah-respondent No.3, husband of the petitioner, is
permanently residing in USA, so any affidavit or divorce deed,
allegedly executed by him or any authority letter or Salsee
Nama, rendered and executed by him in favour of respondent
W.P.No.6782 of 2019/BWP 6

No.4 must have been attested by the Consulate of Pakistan at

USA, but the record shows that such procedure has not been
adopted and affidavit allegedly executed by him (Imdad Ullah)
on 01.04.2019 is on a simple paper and seems to be a fax copy,
without being attested by the Consulate of United States of
USA and same is the position in case of Talaq Nama, which is
on simple paper and that too without any date that on what date
the pronouncement of talaq was made; thus, the said documents
could not be considered and relied upon. Moreover, all the
proceedings were conducted and joined by Hammad Ullah,
brother of Imdad Ullah, who was not authorized person as has
been observed above, because if a husband is a Pakistani
national, he can divorce in Pakistan. Even if a husband is not a
Pakistani National or even if both husband and wife are not
Pakistani national they can get divorce in Pakistan provided that
the marriage is registered in Pakistan by adopting following
procedure, in case of husband:-
1. Husband will send a power of attorney to his
lawyer;
2. Power of attorney should be attested from the
Pakistani embassy or consulate of the country
where he is residing;
3. Where a lawyer receives the power of attorney,
he will proceed according to law;
4. Proceedings of overseas divorce in Pakistan are
conducted in Arbitration council;
5. Minimum 90 days proceedings will be
conducted by lawyer in arbitration council;
6. After the proceedings of overseas divorce in
Pakistan, a divorce certificate will be issued by
NADRA through arbitration council and this
certificate is considered as sole and only proof
of divorce.
 W.P.No.6782 of 2019/BWP 7

In the present case as stated above, the process provided under

law has been bypassed; thus, the impugned divorce registration
certificate dated 21.01.2019 and impugned order of
confirmation dated 14.11.2018 are declared to be of no legal
effect and value, set aside, accordingly, by allowing the
constitutional petition in hand.

(Shahid Bilal Hassan)

Judge
M.A.Hassan

Approved for reporting.

Judge