Full Judgment Text & Judicial Ruling

1988 M L D 467

1988 M L D 467

[Karachi]

Before K.A. Ghani, J

AMIN MUHAMMAD‑‑Petitioner

versus

THE CHAIRMAN, PANCHAYAT COMMITTEE and 2 others‑‑Respondents Constitutional Petition No.S‑41 of 1986, decided on 27th November, 1986.

Muslim Family Laws Ordinance (VIII of 1961)‑

‑‑‑S. 7‑‑Pronouncement of Talaq‑‑Intimation to Chairman‑‑Duty of Chairman‑‑ Where husband after pronouncement of Talaq to his wife had duly communicated intimation of such Talaq to Chairman in accordance with law, Chairman, held, could not stay his hands or refuse to act upon such intimation even if suit challenging validity of Talaq, filed by wife was pending adjudication before Family Court.

Khalid Habibullah for Petitioner.

Sadiq for Respondent No. 3.

Dates of hearing: 19th and 20th November, 1986.

JUDGMENT

By this Petition filed under Article 199 of the Constitution of Pakistan, 1973, the petitioner has challenged the decision communicated by the respondent No.l the Chairman, Panchayat Committee, vide his letter No.155/267/86 dated 2‑2‑1986 refusing to take any action on the intimation of Talaq given by the petitioner to his wife the respondent No.3.

1. At the hearing of the petition both the learned counsel admitted that the stary order granted in Civil Appeal No.107 of 1986 by the First Additional District and Sessions Judge Karachi (West) since after the filing of this petition has been vacated. It is also conceded that the said appeal has also been disposed of and the plaint of Suit No. 343 of 1985 was ordered to be returned by the said Appellate Court to the plaintiff/respondent No.3 for presentation before the proper Court.

Mr. Sadiq, the learned counsel for respondent No.3 stated that the plaint so returned has already been presented in the Court of V111th Civil Judge, Family Court, Karachi (West).

Mr. Khalid Habibullah, Advocate for the petitioner stated that the respondent No.3 was divorced by the petitioner on 27‑1‑1986 and intimation to that effect as required by section 7(1) of the West Pakistan Family Laws Ordinance, 1961 was given to the respondent No. 1. on 27‑1‑1986.

Mr. Sadiq, the learned counsel for respondent No.3 however submitted that the question of validity of the divorce is still in issue and is to be decided in the suit pending before the Family Court.

2. Having heard the learned counsel for the parties, the situation which emerges is that the stay order earlier passed by the learned Ist Additional District Judge, Karachi (West), having been vacated by the same Court subsequently, the cause for not taking any action on the intimation of divorce sent by the petitioner has ceased to exist.

As to the other reason which persuaded the respondent No.l not to proceed to take any step on the intimation of Talaq was that the question of validity of Talaq subject matter of Suit No. 343/85 was then pending in the Court of law.

Though the' proceedings in the aforementioned Suit No.343/85 terminated with the return of the plaint by the learned First Additional District Judge by order passed in the above‑referred Civil Appeal, the controversy as to the validity of the Talaq stated to have been given by the petitioner is now the subject‑matter of the Family Suit No.1128 of 1986. This new suit has been filed by respondent No.3, by representing in the Court of VIIIth Family Judge Karachi (West) the plaint of Suit No.343/85 returned by the order of the learned First Additional District Judge, Karachi (West). The learned Advocate Ar respondent No.3 argued that in view of the pendency of the said suit respondent No.l cannot take any step pursuant to the intimation of Talaq sent to him by respondent No.3.

I am however of the opinion that this Court is not required to go into the controversy as to the validity of Talaq stated to have been given by the petitioner.

The Family Court where the suit in which such a question has been raised, is to decide the same in accordance with the law. The respondent No.l however, for that reason cannot stay his hands or refuse to act according to law.

3. The upshot of the above discussion is that the decision communicated by the respondent No.l in letter No. 155/267/80 dated 2‑2‑1986 in the circumstances is set aside and this petition is disposed of with the direction to the respondent No.l to act according to law. H.B.T./3418/L

Petition allowed.

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