Mansoor Umar Khan VS Khadija Abbasi daugher of Abdul Latif Abbasi and others.

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.2795 of 2017 Mansoor Umar Khan Versus.

Khadija Abbasi and others

Date of Hearing: 20.12.2017 Petitioner by: Sardar Muhammad Hafeez Khan, Advocate. Respondent by: Sardar Ghazanfar Khan, Advocate for respondents No.1 and 2.

Mr. Abid Hussain Chaudhary, Advocate for respondents No.4 to 6.

MIANGUL HASSAN AURANGZEB, J:-Through the instant writ petition, the petitioner, Mansoor Umar Khan, impugns the divorce certificate dated 10.03.2016, issued by the Chairman, Arbitration Council (respondent No.5).

2.Learned counsel for the petitioner submitted that although the petitioner and respondent No.1 were married on 01.12.2010, the Nikahnama was registered on 22.12.2010; that the right to pronounce divorce was not delegated by the petitioner to respondent No.1; that the petitioner’s address in the Nikahnama was House No.42, Sector G-11/4, Islamabad; that the petitioner has never pronounced divorce on respondent No.1; that a forged and fictitious talaqnama dated 06.11.2015 was prepared by respondent No.1 and sent to respondent No.5; that respondent No.5 sent a notice to the petitioner on the wrong address; that the petitioner was never given a notice by respondent No.5 about the said talaqnama; that the affidavit sworn by petitioner on 08.12.2016, shows that the the petitioner and respondent No.1 were cordial to each other after the execution of the said talaqnama; that the back of the said talaqnama does not bear the petitioner’s C.N.I.C.; that the comparison of the petitioner’s signature on the talaqnama with the petitioner’s signature on the Nikahnama shows that they are entirely different; and that the issuance of a divorce certificate is not a legal requirement. Learned counsel for the petitioner prayed for the writ petition to be allowed, and for the impugned divorce certificate dated 10.03.2016, to be set aside.

3.On the other hand, learned counsel for respondent No.1 submitted that after respondent No.1’s marriage with the petitioner, they were blessed with one son; that after the petitioner pronounced divorce on respondent No.1, the latter filed the petition for the custody of the minor son; that the instant petition has been instituted by the petitioner as a pressure tactic so that respondent No.1 give the custody of the minor son; that the affidavit placed reliance on by the petitioner was sworn much before the talaqnama was issued by the petitioner; that the date on the said affidavit, is not that of its execution, but of the day when it was produced in evidence as mark-A; and that the back of the talaqnama bears the correct C.N.I.C. of the petitioner. Learned counsel for respondent No.1 prayed for the writ petition to be dismissed.

4.Learned counsel for respondents No.4 to 6 submitted that the petitioner was issued notices on his address given in his Nikahnama; that notices were sent through registered post on 28.12.2015, 18.01.2016, 01.02.2016 and 22.02.2016 to the petitioner; that as the petitioner did not appear before respondent No.5, notices were issued to the petitioner through publication in the “Daily Pakistan” on 03.03.2016, since the petitioner did not appear for any reconciliation within a period of 90 days, respondent No.5 issued divorce certificate on 10.03.2016; and that respondent No.5 complied with the procedure prescribed by law for issuance of the divorce certificate. Learned counsel for respondents No.4 to 6 also prayed for the writ petition to be dismissed.

5.I have heard the contentions of the learned counsel for the contesting parties, and have perused the record with their able assistance.

6.The record shows that the petitioner and respondent No.1 got married on 01.12.2010. The Nikahnama was registered on 22.12.2010. The couple was blessed with the son, Sufyan Khan. Subsequently, the relationship between the couple turned sour. The petitioner and respondent No.1 are at variance on whether the petitioner divorced respondent No.1 by executing talaqnama dated

7.The petitioner asserts that he never issued the said talaqnama, whereas respondent No.1 takes the position that she was divorced

by the petitioner, and the proceedings before respondent No.5 culminated in the issuance of a divorce certificate on 10.03.2016.

8.The right to pronounce divorce had not been delegated by the petitioner to respondent No.1. In the said Nikahnama, the petitioner’s address was House No.42, Sector G-11/4, Islamabad. The documents brought on record by respondent No.5 show that after the receipt of the said talaqnama, notices were issued through registered post to the petitioner. The postal receipts have been brought on record by respondent No.5. Since the petitioner did not appear before respondent No.5, notices were issued through publication in the “Daily Pakistan” on 03.03.2016. As the petitioner did not appear before respondent No.5, a divorce certificate was issued by respondent No.5 on 10.03.2016.

9.In the petition for Sufyan Khan’s custody filed by respondent No.1, the factum of the issuance of the divorce deed dated 06.11.2015, has been expressly mentioned. The said proceedings had culminated in an ex-parte judgment and decree dated 21.12.2016. In June 2017, the petitioner filed an application for setting aside the ex-parte judgment and decree dated 21.12.2016. Vide order dated 21.07.2017, the said ex-parte judgment and decree dated 21.12.2016, was set aside. The petitioner filed the instant writ petition on 28.07.2017.

10.When the petitioner filed the application for setting aside the ex-parte judgment and decree dated 21.12.2016, he was obviously aware of respondent No1’s pleading in her custody petition i.e. that a divorce deed had been issued on 06.11.2015. Any reasonable person who had not issued the divorce deed would have immediately initiated proceedings to question the validity of such a divorce deed. Although the application to set aside the ex-parte judgment and decree was filed on 21.06.2016, the petitioner did not file the instant writ petition until more than a month later (i.e. 28.07.2017). Such delay in filing the writ petition, in my view, puts a question mark on the petitioner’s bonafides.

11.Since respondent No.5 has also issued notices to the petitioner through publication in the “Daily Pakistan” dated 03.03.2016, in addition to notices through registered post on the petitioner’s address given in the Nikahnama, the petitioner’s

contention that he was not aware of the proceedings before respondent No.5 does not appeal to reason. Additionally, the reverse side of the talaqnama filed by the petitioner along with writ petition, does not show the petitioner’s C.N.I.C. number because in the photocopy of the said talaqnama, the upper portion of the script is not copied. Giving the benefit of doubt to the petitioner, I would attribute this to human error rather than mischief. Be that as it may, the copy of the talaqnama brought on record by respondent No.5 clearly shows the petitioner’s C.N.I.C. No.61102-023974-5. Therefore, the contention of the learned counsel for the petitioner that the talaqnama does not bear the petitioner’s C.N.I.C. number is spurned.

12.For the foregoing reasons, I do not find any merit in this petition, which is accordingly dismissed with no order as to to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Announced in an open Court on ______________.

JUDGE

Sanaullah*

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