Supreme Court upholds wife’s right to withdraw divorce under delegated powers

• CJP-led three-judge bench rules all forms of ‘talaq’ attains legal effect until the mandatory 90-day reconciliation period under Section 7 of Muslim Family Laws Ordinance, 1961, has lapsed
• Rules delegated powers allow wife to ‘stand in husband’s shoes’ and revoke divorce notice
• Endorses SHC’s as legally sound, which dismissed the petition after converting it into an appeal

ISLAMABAD: The Supreme Court on Saturday upheld a Sindh High Court ruling validating a wife’s withdrawal of a divorce notice issued under delegated powers, reaffirming that no form of talaq—whether pronounced directly by a husband or exercised through delegation—attains legal effect until the mandatory 90-day reconciliation period under Section 7 of the Muslim Family Laws Ordinance, 1961, has lapsed.

A three-judge bench led by Chief Justice Yahya Afridi dismissed the appeal filed by Muhammad Hassan Sultan, who had challenged two orders issued by the Union/Arbitration Council in Karachi. The dispute originated from a divorce notice served by his wife on July 3, 2023, which she withdrew on August 10, 2023—well within the statutory 90-day window. Following her revocation, the Council chairman closed the proceedings the next day.

The Supreme Court emphasized that Section 7 of the Ordinance applies to “all forms of talaq in whatsoever form,” making no distinction between talaq-e-biddat, talaq-e-ahsan, or divorce exercised through delegated authority. Citing prior judgments, the bench underscored that “no form of talaq is effective until the expiry of ninety days from the day on which written notice is delivered to the Chairman,” and that the statutory reconciliation period is mandatory, permitting revocation at any time during this window.

A central point in the case was the delegation clause in the couple’s marriage contract. The bench observed that the husband had delegated the right to divorce without imposing any restriction or condition, specifically stating that it was being delegated “unconditionally.” Consequently, the Court held that the wife “stood in the shoes of the husband,” possessing the same authority to withdraw the divorce notice before the statutory period expired.

The petitioner contended that ongoing custody proceedings in New York demonstrated mala fide intent, but the Supreme Court rejected this argument, clarifying that foreign litigation had no bearing on the revocation’s legality under Pakistani law. The bench affirmed that the only relevant consideration was whether the withdrawal occurred within the prescribed 90 days.

The Court also upheld a second contested order dated January 3, 2024, concerning another notice issued by the petitioner. It found that the Council chairman had acted correctly under the governing rules, including S.R.O. 1086(K)/61, which grants jurisdiction to Pakistan’s diplomatic missions when a party resides abroad.

In its judgment, the bench warned against interpretations that could dilute Section 8 of the Ordinance, noting that such readings “would defeat the purpose of section 8, which is to provide statutory recognition to the delegation of the right to divorce to a wife and impose on this right the same conditions as on a husband’s right to divorce under section 7.”

The Supreme Court concluded that the High Court’s judgment was legally sound and dismissed the petition after converting it into an appeal.