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Petitioner: Muhammad Akram Nadeem VS Respondent: Chairman, Arbitration Council/ADLG Islamabad, etc
Court Name: Islamabad High Court Judge(s): Babar Sattar Title:Muhammad Akram Nadeem vs Chairman, Arbitration Council/ADLG
Islamabad, etc Case No.: Writ Petition No. 21 of 2021 Date of Judgment:2021-02-24 Reported As: 2021 IHC 132 Result: Petition dismissed Judgment JUDGEMENT BABAR SATTAR, J. The petitioner is aggrieved by divorce certificate dated 03.12.2020 issued by respondent No.1 under section 7(3) of the Muslim Family Laws Ordinance, 1961 ("Ordinance") pursuant to proclamation of talaq issued by respondent No.3 on 08.05.2017. 2. Learned counsel for the petitioner submitted that the petitioner 's daughter and respondent No.3 reside in United Kingdom, that they are separated but are not divorced and proceedings regarding custody and maintenance of their children are pending in the Family Court of Watford, U.K; that the divorce certificate has been issued after a delay of three and a half year from initiation of proceedings before respondent No.1 and in breach of section 7(1) of the Ordinance as the petitioner who resides in U.K. never received any notice section 7(1); that non compliance with mandatory conditions prescribed in the Ordinance is a fraud on the statute and in breach of fundamental rights of the petitioner; that the impugned certificate issued without compliance of mandatory conditions prescribed under the Ordinance is void ab-initio and of no legal effect; that the petitioner is unable to travel to Pakistan due to Covid- 19 and is also unable to issue a power of attorney certified by the Pakistan High Commission due to lockdown currently enforced in U.K. and that the petition has been filed in her behalf by her father; given that the impugned certificate can be abused by respondent No.3 to undermine valuable rights of the petitioner 's daughter this Court ought to exercise its equitable jurisdiction to hear this matter , especially as the petition has been filed by the petitioner 's father who neither has any monetary interest in the matter nor any interest adverse to the petitioner i.e. his daughter . Learned counsel for the petitioner submited that the fact that the petitioner has authorized her father to file the instant petition can be verified by the Court through its video-conferencing facility in view of the extraordinary situation created due to Covid-19.
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3. The learned counsel for the petitioner relied on Mubarik Ali Shah and 4 others vs. Chief Administrative Auqaf [1988 CLC 348] and Mrs. Ambreen Naseem Khawaja vs. Federation of Pakistan and others [2015 P.Cr.L.J 506] in support of maintainability . The learned counsel relied on Syed Wajiha Haris vs. Chairman Union Council No.7, Lahore [2010 MLD 989], Mst. Sana Asim Hafeez vs. Administrator/Chairman, Arbitration and Conciliation Court [2016 MLD 1061 ] and Mst. Asma Bibi vs. Chairman Reconciliation Committee and others [PLD 2020 Lahore 679] wherein the learned Lahore High Court held that under SRO 1086(K)61 dated 09.11.1961 ("SRO") , officers of Pakistan Mission abroad were authorized to discharge functions of Chairman under the Ordinance, 1961 and that reconciliation proceedings must be undertaken at the place of residence of nonresident Pakistanis. The learned counsel for the petitioner submitted that the controversy in the instant petition involves a legal question: whether in case of divorce between Pakistani citizens who are residing outside of Pakistan at the time of divorce, would Chairman of the relevant Union Council in Pakistan have jurisdiction in view of provisions of the Ordinance read together with the SRO. 4. In pursuance of this Court' s order dated 08.01.2021 learned counsel for the petitioner placed on record unattested special power of attorney signe d by the daughter of the petitioner along with cover email stating that she is unable to have the said power of attorney certified as the High Commission is shut down due to lockdown in the United Kingdom due to COVID-19. This Court verified through video link that the petitioner had been authorized by her daughter as due to Covid-19 and lockdown in U.K certification of power of attorney was temporarily suspended by the High Commission. 5. Learned counsel for respondent No.1 submitted that no officer had been appointed in various Consulates and High Commissions of Pakistan to perform functions of Chairman under the Ordinance in exercise of powers conferred on the Federal Government by the SRO. He further submitted that in the interest of justice, it would be appropriate that the Foreign Office be impleaded as party to seek information on whether or not the SRO had been given effect and if Chairman for purposes of section 2(b) of the Ordinance has been appointed in Pakistan' s Foreign Missions. He further submitted that there is utter confusion regarding jurisdiction of respondent No.1 in relation to divorce proceedings involving spouses who get married in Pakistan but later become dual nationals or expatriate Pakistanis or are temporarily out of country at the time of pronouncement of divorce. He submitted that no proceedings for purposes of section 7 are conducted in foreign missions. 6. The Foreign Office was issued notice and report was sought from it on whether any officers at Pakistan' s Foreign Missions had been notified to discharge the functions of Chairman under the Ordinance pursuant to the SRO. 7. Learned counsel for respondent No.3 submitted that on 08.05.2017 an application for purposes of section 7(1) of the Ordinance was filed before responden t No.1 along with divorce deed and that such divorce deed was executed in Pakistan on 08.05.2017. That Respondent No.3 appeared in person before respondent No.1 on 10.05.2017 and recorded his statement and the proper procedure to summon the petitioner was adopted by issuing notice to her at her given address as House. No. 79/4-D, Street No. 32, F-6/1, Islamabad. That on 31.05.2017 the representative of respondent No.3 appeared before respondent No.1 but the petitioner was not in attendance and another notice was issued for her appearance on 21.06.2017. That the same situation existed on 12.07.2017 when no one appeared on behalf of respondent No.1. On 19.07.2015 respondent received a summon from the learned Civil Judge Islamabad in a suit filed by the petitioner 's father on her behalf wherein order for maintenance of status quo had been passed. The learned counsel for Respondent No. 3 provided details of the litigation that continued before the learned Civil Court and proceedings in relation to an application filed on behalf of the petitioner before the Deputy Commissioner , ICT., Islamabad. 8. The learned counsel for respondent No. 3 submitted that after rejection of the plaint filed on behalf of the petitioner under Order VII Rule 11 CPC, the proceeding before respondent No.1 recommenced and the impugned divorce certificate was issued. The learned counsel submitted that in the instant case provisions of the Ordinance are applicable as the petitioner and respondent No.2 are both Pakistani Nationals and their marriage is registered at Islamabad and respondent No.1 is vested with jurisdiction under section 7 of the Ordinance. That notice under section 7(1) of the Ordinance was duly issued to the petitioner , as the address mentioned in the instant petition is the same on which the notice was served . And that it was after receipt of such notice and after acquiring knowledge
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of the proceedings under section 7 of the Ordinance that the petitioner filed a suit before the learned Civil Court which proceedings continued till the rejection of the suit in November , 2020. That there is no Arbitration Council functional in Pakistan' s High Commission in U.K. and that even under the U.K Law no divorce of Pakistani nationals living in U.K. is recognized unless a divorce certificate has been issued under the Ordinance. Learned counsel for the respondent No.3 produced before the Court a copy of instructions published by Government of U.K on its website (www .gov.uk) for guidance of recognition of overseas divorces, which in relevant part state the following: 4. SET13.4 Recognition of overseas divorces which took place on or after 4 April 1988. Under the Family Law Act 1986 an overseas divorce obtained by means of judicial or other proceedings is recognized in the UK only if.- it is effective under the law of the country in which it was obtained; and at the relevant date (that is, the date on which proceedings were begun), either party was either habitually resident or domiciled in that country or was a national of that country . The term 'judicial or other proceedings' requires that there should have been some formal proceedings, either before a court or some other formal body recognized by the state for that purpose (for example, in Pakistan the Union Council). It is an important aspect that the judicial or other body should be impartial as to the outcome of the proceedings. An overseas divorce obtained otherwise than by means of proceedings is recognised in the UK if.- it is effective under the law of the country in which it was obtained; and at the relevant date (that is, the date on which the divorce was obtained), both parties were domiciled in that country or one was domiciled there and the other was domiciled in a country which recognized the divorce; and neither party had been habitually resident in the UK throughout the period of one year immediately preceding that date. The term 'otherwise than by means of proceedings' covers, for example, a meeting of family members convened to dissolve a W est African customary marriage or to hear the pronouncement of talaq. 5. SET13.5 The T alaq divorce Under traditional Islamic law a bare talaq divorce is deemed to have taken place when the husband pronounces three times 'I divorce thee'. This pronouncement dissolves the marriage instantly . However , the Muslim Family Law Ordinance 1961 (MFLO) sets out formal requirements for the recognition of full talaq divorces in all parts of Bangladesh and Pakistan except Azad Kashmir: the husband must give notice in writing of the pronouncement of a talaq divorce to the Chairman of the Union Council of the W ard, the husband must also give a copy of this notice to his wife. At the end of 90 days (or at the end of the wife's pregnancy if she is pregnant at this time) the divorce will take effect. There is provision for attempts at conciliation between the two parties during this 90 day period. Only a talaq under the MFLO is consider ed to have been obtained by means of proceedings as defined under UK Acts. If a full talaq divorce takes place in Bangladesh or Pakistan it will be recognised in the UK if the procedures laid down under the Muslim Family Laws Ordinance 1961 were complied with, and: the husband or the wife is a Bangladeshi or Pakistani citizen; or he or she is habitually resident in Bangladesh or Pakistan; he or she is domiciled in Bangladesh or Pakistan. 6. SET13.6 T alaq divorce in the UK If a husband pronounces talaq divorce in the UK alone, the divorce will not be recognized. If a husband pronounces talaq divorce in the UK and then notifies his wife and the Union Council Chairman in Pakistan or Bangladesh, the divorce will not be recognised. The UK courts have held that an overseas divorce is capable of recognition in the UK only if the divorce has been instituted and obtained in the same country outside the UK.
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9. Learned counsel for the Foreign Office, which was impleaded as Respondent No. 4 by this Court by order dated 18.01.2021, submitted a report which stated the following; "That in accordance with the Muslim Family Laws Ordinance, 1961 and SRO No. 1086(K)61 dated 09.11.1961, all Pakistan Missions abroad are periodically directed to appoint/update focal persons to discharge the functions of the Chairman, Arbitration Council." The report provided a list of focal persons appointed in Pakistan' s Foreign Missions to discharge the functions of Chairman for purposes of section 2(b) of the Ordinance. 10. It is not denied that a notice for purposes of section 7(1) was issued by Respondent no.1 on behalf of Respondent No. 3 and sent to the Petiti oner along with the divorce deed executed by Respondent No.3 at the address listed in the instant petition, which is the permanent resident of the Petitioner 's father . The petitioner 's case is that she never received a notice in physical form as she lives in U.K. and that respondent No.1 has no jurisdiction to discharge functions under section 7 of the Ordinance as the Petitioner and Respondent No. 3 were both residents of U.K. at the time of pronouncement of divorce. 11. The questions that arise before this Court for adjudication of the subject-matter of this petition are the following: 1. Does the Federal Government have the authority under section 2(b) of the Ordinance to authorize Director General (Administration) Ministry of External Affairs to appoint officers to Pakistan' s Foreign Missions to discharge functions of Chairman as defined under section 2(b) of the Ordinance? 2. Do provisions of Ordinance have extra-territorial application and apply to divorce proceedings in relation to Pakistani spouses not physically present in Pakistan at the time of pronouncement of divorce? 3. Where divorce is pronounced between spouses who are Pakistani nationals at a time when they are outside the territorial jurisdiction of Pakistan, whether due to being dual nationals or expatriate Pakistanis or temporary residents, are they obliged to pursue divorce proceedings before an officer appointed as Chairman for proposes of section 2(b) of the Ordinance in Pakistan' s Foreign Mission and in such case is the Chairman of the relevant Union Council in Pakistan devoid of jurisdiction in relation to such divorce proceedings? 12. Before we engage with these questions, let us consider the relevant provisions of the Ordinance: Section 1(2) It extends to whole of Pakistan, and applies to all Muslim citizens of Pakistan, wherever they may be. Section 2(a) "Arbitration Council" means a body cons isting of the Chairman and a representative of each of the parties to a matter dealt with this Ordinance: Provided that where any party fails to nominate a representative within the prescribed time, the body formed without such representative shall be the Arbitration Council. Section 2(b) (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 an Officer authorized in that behalf by any such Government to discharge the functions of chairman under Ordinance: Provided that where the Chairman of the Union Council is a non-Muslim, or he himself wishes to make an application to the Arbitration Council, or is, owing to illness or any other reason, unable to discharge the functions of Chairman, the Council shall elect one of its Muslim members as Chairman for the purposes of this Ordinance. 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 a notice in writing of his having done so, and shall supply a copy thereof to the wife. (2) Whoever , contravenes the provisions of sub-section (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 as provided in sub-section (5) talaq, unless revoked earlier , expressly or otherwise, shall not be effective until the expiration of ninety days from day on which notice under sub-section (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
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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 period mentioned in Sub-section (3) or the pregnancy , whichever later , ends. (6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under his section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective. 13. In exercise of powers under section 11 of the Ordinance, the Government of West Pakistan promulgated West Pakistan Rules under the Muslim Family Law Ordinance, 1961 on 10.07.1961. Rule 3 is germane to the question of jurisdiction of Chairman Union Council. And the proviso to Rule 6(1) and (2) in instrumental in considering the role envisaged for Consular Officers in Pakistan in the event that a notice is to be served on a person not in Pakistan at the relevant time. The text of Rules 3 and 6 is reproduced below: Rule-3 3. The Union Council which shall have jurisdiction in the matter for purpose of clause (d) of section 2, shall be as follows namely:- (a) in the case of an application to contract another marriage under subsection (2) of section 6, it shall be the Union Council of the Union or Town in which the existing wife of the applicant, or where the husband has more wives than one, the wife with whom the applicant was married last, is residing at the time of his making the application; Provided that if at the time of making the application, such wife is 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 applicant in any part of West Pakistan, the union Council of the Union or T own where such wife so last resided with the applicant; and ii) in any other case, the Union Council of the union or Town where the applicant is permanently residing in West Pakistan; (b) in the case of a notice of talaq under sub-section (1) of section 7, it shall be the Union Council of the Union or Town in which the wife in relation to whom talaq has been pronounced was residing at the time of the pronouncement to 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, Union Council or the Union or T own where such wife so last resided with such person; and ii) in any other case, the Union Council of the union or Town where the person pouncing the talaq is permanently residing in W est Pakistan; and (c) in the case of an application for maintenance under section 9, it shall be the Union Council of the Union or Town in which the wife is residing at the time of her making the application, and where application under , that section is made by more than one wife, it shall be the Union Council of the Union or Town in which the wife who makes the application first, is residing at the time of her making the application. Rule-6 6(1) Within seven days of receiving an application under sub-section (4) of section 6 or under sub-section (1) of section 9, or a notice under sub-section (1) of section 7, the Chairman shall, by order in writing, call upon each of the parties to nominate his or her representative, and each such party shall, within seven days of receiving the order , nominate in writing a representative and deliver the nomination to the Chairman or send it to him by registered post. (2) Where a representative nominated by a party is, by reasons of illness or otherwise, unable to attend the meetings of the Arbitration Council, or willfully absents himself from such meeting, or has lost the confidence of the party , the party , may, with the previous permission in writing of the Chairman, revoke the nomination and make, within such time as the Chairman may allow , a fresh nomination. Provided that where a party on whom the order is to be served is residing outside Pakistan, the order may be served on such party through the Consular Officer of Pakistan in or for the country where such party is residing.
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14. The text of the SRO on the basis of which it has been argued by the Petitioner that Respondent No. 1 (i.e. the relevant Chairman Union Council) is devoid of authority for purposes of section 7 of the Ordinance, is as follows: "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 please d to authorize the Director General (Administration), Ministry of External Affairs to appoint officers of Pakistan missions abroad to discharge the functions of Chairman under the aforesaid Ordinance." 15. The first question before this Court is whether the SRO was validly issued in exercise of power duly vested in the Federal Government under section 2(b) of the Ordinance. The ordinary meaning of the text of section 2(b) seems to identify five categories of persons who fall within the definition of Chairman: (1) Chairman Union Council; (2) a person appointed by the Federal Government in the Cantonment Areas to discharge the functions of Chairman; (3) a person appointed by the Provincial Government in areas other than Cantonment Areas to discharge the functions of Chairman; (4) an officer appointed by the Federal Government in the Cantonment Areas to discharge the functions of Chairman; and (5) an officer appointed by the Provincial Government in areas other than Cantonment Areas to discharge the functions of Chairman. 16. The text of section 2(b) could alternat ively be read as identifying four categories of persons who fall within the definition of Chairman as opposed to five i.e. (1) Chairman Union Council; (2) a person appointed by the Federal Government in the Cantonment Areas to discharge the functions of Chairman; (3) a person appointed by the Provincial Government in areas other than Cantonment Areas to discharge the functions of Chairman; (4) an officer appointed by the Federal Government or the Provincial Government to discharge the functions of Chairman devoid of territorial restrictions. Such reading of section 2(b) would not limit the power of the Federal Government to appoint an of ficer to discharge the functions of Chairman only within Cantonment Areas. 17. This second reading, however , raises two issues. One, the words in section 2(b) where governments are authorized to appoints 'officers' to discharge functions of Chairman uses the words "in that behalf" while identifying the fourth and fifth category of persons falling within the definition of Chairman. To read the provision as empowering the Federal Government to appoint an officer to discharge the functions of Chairman not just within a Cantonment Area but anywhere across Pakistan and also within Pakistan' s Foreign Missions, would require attributing redundancy to the words "in that behalf". It is a settled principle of interpretation that each and every word used in a statute is to be given meaning and redundancy is not to be attributed to words used by the legislature. 18. The second issue is that of territori al and subject-matter jurisdiction of respective governments within our federation. The functions of Chairman belong to the third-tier of government i.e. local bodies, which in turn falls within the domain of the provinces and not the centre. The second reading of section 2(b) could fall foul of the principle of federalism and could possibly conceive setting up of parallel offices of Chairman for discharge of functions under the Ordinance in the event that the power of the Federal Government to appoint officers to discharge functions as Chairman is read disjunctively from the initial part of section 2(b) that limits the authority of the Federal Government to appoint persons for discharge of such functions only in Cantonment Areas. In such case, both the Federal Government and the relevant Provincial Governm ent would have authority to simultaneously appoint Chairmen for purposes of the Ordinance, resulting in a conflict. 19. In view of the Ordinance and the Rules, it is inconceivable that the legislature had envisaged establishment of Arbitration Councils headed by Chairmen in each Foreign Mission at the discretion of Director General (Administration) of the Ministry of External Affairs, that would then also oust the jurisdiction of the Chairman of the relevant Union Council for purposes of the Ordinance. Rule 3 of the Rules reproduced above addresses the question of jurisdiction of the relevant Union Council at length to prevent conflict of jurisdiction in case the spouses do not reside within the same Union Council. The proviso to Rule 6(1) and (2) provides for service of notice on a party to proceedings before the Arbitratio n Council through Consular Officers in…
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