ISLAMABAD: The Supreme Court (SC) has held that divorce cannot be effective until after the expiration of ninety days.
A three-member bench of the Supreme Court, headed by Chief Justice Yahya Afridi and comprising Justice Muhammad Shafi Siddiqui and Justice Miangul Hassan Aurangzeb, issued the judgment in an appeal filed by Muhammad Hassan Sultan against the judgment of Sindh High Court (SHC).
The court dismissed the appeal and upheld the decision of Sindh High Court as well as earlier decisions given by the Union Council concerned.
The 12-page judgment, authored by Justice Muhammad Shafi Siddiqui, held that Section 7(1) of the Muslim Family Laws Ordinance, 1961 provides that when a husband pronounces ‘talaq in any form whatsoever’, he is under a statutory obligation to provide written notice of such pronouncement to the wife and deliver a copy to the wife.
The Section 7(3) then provides that the talaq, unless revoked earlier expressly or otherwise, shall not take effect until the expiry of ninety days from the date on which the notice was delivered. Section 7(2) prescribes a punishment for any person who violates section 7(1), the court held.
The court further noted that Section 7(3) of the ordinance provides that a divorce ‘unless revoked earlier, expressly or otherwise’ shall not be effective until after the expiration of ninety days from the date on which notice under Section 7(1) is served on Chairman, Union/Arbitration Council, i.e., respondent No.1. Section 7(3), therefore, explicitly provides for the revocation of a divorce within the ninety days period.
“This is in line with the purpose of section 7, which is to regulate divorce proceedings by ensuring that a talaq (regardless of form) is not effective immediately and parties have a ‘reasonable opportunity’ of ninety days to reconsider their decision”, says the judgment.
The court noted that the petitioner (Muhammad Hassan Sultan) and respondent No.2 (Morial Shah) married on 24.11.2016 vide nikahnama dated 03.12.2016.
After marriage, the wedded couple settled abroad (New York) and were then blessed with a daughter on 09.08.2021. The court noted that the dispute arose between the couple in June, 2023 when respondent No.2 came back to Karachi with her daughter and on 03.07.2023 served notice of divorce on the petitioner under section 7(1) of the Muslim Family Laws Ordinance, 1961.
Apparently, in consequence of such notice, the petitioner filed custody proceedings in New York on 19.07.2023 against the respondent No.2. The New York court, in pursuance of such proceedings, passed orders to return to New York with the daughter.
On 10.08.2023, seemingly within ninety days period, prescribed under section 7(3) of the Ordinance, respondent No.2 withdrew the divorce proceedings and returned to New York and in consequence of such withdrawal, the Chairman, Union/Arbitration Council, respondent No.1 disposed of the divorce proceedings on 11.08.2023
On 23.08.2023, the petitioner attempted to serve notice for divorce under section 7(1) of the Ordinance and on 10.11.2023 respondent No.1, i.e., Chairman, Union/Arbitration Council was urged to suspend the divorce proceedings commenced via above notice. In consequence thereof, on 03.01.2024, the Chairman, Union/Arbitration Council disposed of the proceedings commenced via notice of 23.08.2023.
“The two orders were then challenged before the High Court of Sindh through the constitution petition, which was dismissed vide impugned judgment dated 07.10.2024”, says the judgment.
The court noted that the gist of the impugned judgment ruled that section 7 of the Ordinance provides that pronouncement of divorce in whatsoever form does not automatically terminate the marriage until expiration of ninety days period from the date of notice is served (since the jurisdiction of Arbitration Council was invoked), and that the party serving notice can withdraw the divorce and proceedings at any time within ninety days from the date of service of notice.
“Since respondent No.2 in the instant matter had withdrawn the notice of divorce within ninety days, she had acted within the law and the first order does not suffer from any legal infirmity”, the court held. The court held that the consequential divorce proceedings initiated in the New York court, for the purpose of the present controversy within the frame of Muslim Family Laws Ordinance, is not relevant.
