Delegated Divorce

2006 Y L R 335
[Lahore]
B efore Muhammad Akhtar Shabbir, J
MEHNAZ MEHBOOB---Petitioner
Versus
ISHTIAQ UR RASHID and another---Respondents
Writ Petition No. 2179 of 2004, heard on 22nd July, 2005.
(a) Muslim Family Laws Ordinance (VIII of 1961)---
----Ss. 7 & 8---Talaq-i-Tafweez---Kinds---Power to give divorce, though belonged to

husband, but he could delegate said power to wife or to third person, either absolutely or
conditionally and either for a particular period or permanently---Section 7 of Muslim
Family Laws Ordinance, 1961 had specifically provided such Talaq which was known as
'Talaq-i-Tafweez'---Person to whom power was so delegated, could then pronounce same
accordingly---Temporary delegation of power was irrevocable, but a permanent
delegation could be revoked---Such delegation of option called `Tafweez' by husband to
his wife, would confer on her power of divorcing herself---Said 'Tafweez' was of three
kinds viz., Ikhtiar, giving her the authority to Talak herself; Amr-ba-Yed, leaving the
matter in her own hand and Mashiat, giving her the option to do what she liked---All
these factors when analyzed would resolve themselves into one, viz., leaving it in her or
somebody else's option to do what she or he liked---Wife could not sue to enforce
authority alleged to have been given to her, but she would sue after she had given effect
to it to make husband liable for dower or to restrain him from seeking conjugal
relations---Wife was entitled to exercise her right of 'Tafweez of Talaq' and she was
entitled to be separated from her husband.
(b) Muslim Family Laws Ordinance (VIII of 1961)---
----Ss. 7 & 8---Talaq---Right of Talaq-i-Tafweez, exercise of---Talaq once pronounced,

would be effective after expiry of 90 days, unless it was revoked by husband or wife
exercising her right of Talaq-i-Tafweez.
Dr. Qambar Murtaza Bokhari v. Mst. Zainab Bashir 1995 CLC 1574 ref.
(c) Muslim Family Laws Ordinance (VIII of 1961)---
----Ss. 7 & 8---Authority of Chairman Arbitration Council---Chairman Arbitration

Council had no authority to adjudicate upon validity or otherwise of 'Talaq' pronounced
by husband or his delegatee (wife)---Arbitration Council was constituted only for purpose
of bringing about reconciliation between parties and in event of its failure, 'Talaq', ipso
facto, would become effective on expiry of 90 days of receipt of notice under S.7 of
Muslim Family Laws Ordinance, 1961---Husband, in case of delegating right of Talaq
(Tafweez) to wife at the time of marriage, which fact if duly incorporated in 'Nikahnama',
and wife in exercise of her said right issued notice to Chairman Union Council---
Chairman was duty bound to constitute Arbitration Council and proceed in accordance
with provisions and he had no right to declare right of divorce through Tafweez as un-
Islamic, unlawful and against Injunctions of Qur'an and Sunnah---Since wife in case, had
issued notice to Chairman Union Council, who constituted Arbitration Council, but
compromise could not be effected between parties, no option was left with Arbitration
Council, but to declare that Arbitration proceedings had failed.
Dr. Qambar Murtaza Bokhari v. Mst. Zainab Bashir 1995 CLC 1574; Batool Tahir v.
Province of Sindh through Secretary, Local Government Sindh and 3 others PLD
2005 Kar.358 and Alia Parveen v. Executive District Officer (Revenue), Sheikhupura
and 3 others 2004 CLC 652 ref.
Nahida Mehboob Ellahi for Petitioner.
Respondent No.1 ex parte.
Raja Saeed Akram, A.A.-G. for Respondent No.2.
Date of hearing: 22nd July, 2005.
JUDGMENT
MUHAMMAD AKHTAR SHABBIR, J.---Facts constituting to the filing of present

writ petition are to the effect that the petitioner had contracted her marriage with
respondent No.1 on 12-4-2002 at Rawalpindi and Rs.3,00,000 (three lac) was fixed as
dower and as per terms and conditions of 'Nikkah Nama', dated 12-4-2002, the
respondent No.1 had delegated right of divorce to the petitioner. 'Rukhsati' of the
petitioner had taken place and marriage was consummated. Respondent No.1 husband
of the petitioner was habitually cruel and his whole family mentally tortured the
petitioner by making illegal demands and criticizing her for not bringing enough
dowry. The petitioner decided that there was no mental equatum between the parties
and it was difficult for her to live with respondent No.1 as his legally wedded wife
within the limits of "Almighty" Allah. Therefore, the petitioner in exercise of her
delegated right got herself divorced from respondent No.1 by executing a divorce-
deed and issued notice to the Nazim Union Council, Dhoke Munshi Khan, Rawalpindi
who was pleased to issue notice to respondent No.1 to appear and to appoint his
arbitrator. In reply to the said notice, respondent No.1 intentionally did not appear but
sent a reply through registered post alleging that the petitioner has herself not
executed the deed and her signature on the same were forged and fabricated. The
respondent Nazim, Union Council constituted "Arbitration Council". During the
Arbitration proceedings, no compromise was effected between the parties and
respondent No.2 finally directed respondent No.1 to personally appear. The
respondent No.1 produced the 'Fatavas'/ opinions of "Ulma-e-Kram" to the effect that
delegated right of divorce is un-Islamic. In view of the 'Fatavas', respondent No.2
through a detailed order has opined that wife is not entitled to exercise the right of
'Talaq' in accordance with the principle of Qur'an and "Sunnah". Nazim Union
Council/respondent No.2 vide his order, dated 5-7-2004 directed the petitioner to
approach the Judge Family Court for decree of dissolution of marriage. The said order
has been assailed by the petitioner through the instant writ petition.
2. Notice was issued to the respondent No.1 but no one has entered appearance on his
behalf, therefore, he was proceeded against ex parte on 21-7-2005.
3. I have heard the arguments of learned counsel for the petitioner and perused the
record.
4. Although the power to give divorce belongs to the husband, he may delegate the
power to the wife or to a third person, either absolutely or conditionally, and either for
a particular period or permanently. The person to whom the power is thus delegated
may then pronounce the divorce accordingly. A temporary delegation of the power is
irrevocable but a permanent delegation may be revoked. The pronouncement of
divorce after demand had not caused public policy and principles of Muhammadan
Law. Such a divorce is known as "Talak by Tafweez". The delegation of option called
"Tafweez" by the husband to his wife, confers on her the power of divorcing herself.
Tafweez is of three kinds, (a) Ikhtiar, giving her the authority to Talak herself, (b)
Amr-ba-Yed, leaving the matter in her own hand, and (c) Mashiat, giving her the
option to do what she likes. All these, when analyzed, resolve themselves into one.
Viz., leaving it in her or somebody else's option to do what she or he likes. The wife
cannot sue to enforce the authority alleged to have been given to her, but she sues
after she has given effect to it to make the husband liable for her dower or to restrain
him from seeking conjugal relations.
5. In "Fatava Rizvia" Volume-12, it is mentioned that:-
6. Keeping in view the above discussion, it is manifestly clear that wife is entitled to
exercise her right of Tafweez of `Talaq' and she was entitled to be separated from her
husband.
7. `Talaq' once pronounced would be effective after expiry of 90 days unless it is

revoked by the husband or by wife exercising her right of "Talaq-i-Tafweez". This
would be so notwithstanding conduct of the parties. In this context reliance can be
placed to the case of Dr. Qambar Murtaza Bokhari v. Mst. Zainab Bashir (1995 CLC
1574).
8. Section 7 of the Muslim Family Laws Ordinance, 1961, provided that:-
"(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) -------
(3) -------
(4) within thirty days of the receipt of notice under subsection (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 all steps necessary to bring
about such reconciliation".
Section 8 of the Act further contemplated that:-
"Where the right to divorce has been duly delegated to the wife and she wishes
to exercise that right, or where any of the parties to a marriage wishes to
dissolve the marriage otherwise than by `Talaq' the provisions of section 7
shall, mutatis mutandis and so far as applicable apply."
This section specifically provides for another form of `Talaq' known as "Talaq-i-
Tafweez" i.e. delegating the right of divorce to the wife or to a third person either
absolutely or conditionally and either for a temporary period or permanently, and laid
down that the procedure provided in section 7 for divorce shall have to be followed.
9. Chairman Arbitration Council had no authority to adjudicate upon validity or

otherwise of `Talaq' pronounced by husband or his delegatee (wife)-Arbitration
Council is constituted only for purpose of bringing about reconciliation between
parties and in event of its failure, `Talaq' ipso facto becomes effective on expiry of 90
days of the receipt of notice under section 7 of Muslim Family Laws Ordinance, 1961.
The husband delegating right of `Talaq' (Tafweez) to wife at the time of marriage,
which fact was duly incorporated in "Nikahnama". In the instant case, the right of
Tafweez has been delegated to the wife/petitioner who in exercise of her right issued
notice to the Chairman, Union Council, concerned and it was the duty of the
Chairman to constitute the Arbitration Council and proceed in accordance with the
provisions and he has no right to declare right of divorce through Tafweez as un-
Islamic. In this context reliance can be placed to the case of Ms. Shema Farooq v.
Chairman, Union Committee, Ward No.4, Lahore Cantt. (1996 CLC 673), wherein it
was observed that the Chairman, Arbitration Council had no authority to go into the
validity of `Talaq' of the factum of permission---Order passed by Chairman
Arbitration Council that pronouncement of `Talaq' was ineffective was declared to be
without lawful authority and of no legal effect. In another case titled as Batool Tahir
v. Province of Sindh through Secretary, Local Government Sindh and 3 others (PLD
2005 Karachi 358), the Division Bench of the Karachi High Court observed that
Councilors had no authority in law to give a finding on validity or otherwise of
`Talaq' and they had travelled beyond their jurisdiction by declaring the `Talaq'
pronounced by the husband ineffective. Section 7 of the Muslim Family Laws
Ordinance, 1961 required the husband to give a notice to the Chairman in terms of
section 7(1) and upon expiry of 90 days from the date of delivery for the notice to the
Chairman, `Talaq' would become effective. In another case titled as Alia Parveen v.
Executive District Officer (Revenue), Sheikhupura and 3 others (2004 CLC 652), this
Court has already observed that the Arbitration Council had the jurisdiction only to
matters mentioned in sections 6, 7, 8 and 9 of Muslim Family Laws Ordinance, 1961
and for proceedings under those sections of Legislature had framed Rules under the
Muslim Family Laws Ordinance---Arbitration Council had not the power to make
unlawful anything declared lawful by Islam nor could do vice versa. It is established
principle of Islamic jurisprudence that the right of `Talaq' can be delegated to the wife
by the husband at the time of "Nikkah" which is called "Talaq-e-Tafweez" and this
right had been exercised by the petitioner under the power delegated to her. The
Chairman/Nazim or the Arbitration Council was not authorized to declare that the
right of "Talaq-e-Tafweez" was unlawful and against the Injunctions of "Qur'an" and
"Sunnah". Since the petitioner has issued notice to the Chairman Union Council, who
constituted Arbitration Council but compromise could not be effected between the
parties, therefore, no option was left with the Arbitration Council but to declare that
the Arbitration proceedings failed.
In view of the above discussion, this writ petition is accepted and the impugned order,
dated 5-7-2004 passed by respondent No.2/Nazim, Union Council No.79, Dhoke
Munshi Khan Tehsil and District Rawalpindi is declared to have been passed illegally
and of no legal effect, hence set aside.
H.B.T./M-1252/L Petition accepted.

2006 Y L R 59
[Lahore]
Before Ch. Ijaz Ahmad, J
SHAHEEN ---Petitioner
Versus
MUHAMMAD ALI---Respondent
T.A. No.503-C of 2004, decided on 6th September, 2005.
Civil Procedure Code (V of 1908)---
----S. 24---Muslim Family Laws Ordinance (VIII of 1961), S.7-Specific Relief Act (I
of 1877), Ss.42 & 54---Delegation of right of divorce to applicant/wife---Notice to
respondent/husband through Chairman Arbitration Council---Suit for declaration and
permanent injunction by respondent against applicant---Transfer of suit---Application
for---Respondent having delegated right of divorce to applicant, she sent a notice to
respondent through Chairman Arbitration Council at place 'L'---Respondent filed suit
for declaration and permanent injunction against applicant in Court at place 'R'---
Applicant filed application for transfer of suit filed by respondent at place to place 'L'
where her matter of divorce was pending before Chairman Arbitration Council---
Courts would give due weight/benefit to inconvenience of ladies as compared to
men---Application filed by female applicant was allowed as prayed for by her and suit
for declaration and permanent injunction filed by respondent which was pending in
Court at place 'R' was ordered to be withdrawn from said Court and to entrust the
same to Civil Judge at place 'L' who would entrust same to competent Civil
Judge/Magistrate who would proceed in the matter accordingly.
Ms. Hifza Aziz for Petitioner.
Nemo for Respondent.
ORDER
CH. IJAZ AHMAD, J.---The brief facts out of which the present petition arises are that
the petitioner and respondent solemnized marriage on 2-7-2000 at Lahore in accordance
with Injunctions of Islam. Subsequently, the relationship between the petitioner and
respondent became strained. The respondent delegated the right of divorce to the
petitioner. The petitioner sent a notice to the respondent through the Chairman Arbitration
Council Cantonment Board, Lahore Cantt. The divorce was effective on 29-11-2004. The
respondent has filed a suit for declaration and permanent injunction against the petitioner
in a counter-blast in the Court of Mr. Tahir Abbas Sipra, Civil Judge/Magistrate,
Rawalpindi. The petitioner being aggrieved filed this application for transfer of the suit
filed against the petitioner by the respondent titled "Muhammad Ali son of Muhammad
Afzal v. Mst. Shaheen daughter of Muhammad Yasin" which is pending in the Court
of Mr. Tahir Abbas Sipra, Civil Judge/Magistrate, Rawalpindi, on the ground that
respondent has filed the aforesaid suit against the petitioner as a counter-blast.
2. The case was fixed before this Court on 7-12-2004. Office was directed to fix this
case on 12-1-2005 after notice to the respondent at the expense of the petitioner by
the following modes:---
(i) Directly;
(ii) Through the agency of Senior Civil Judge concerned;
(iii) Through registered A.D.
The proceedings in the suit "Muhammad Ali son of Muhammad Afzal v. Mst. Shaheen
daughter of Muhammad Yasin" pending in the Court of Mr. Tahir Abbas Sipra, Civil
Judge/Magistrate, Rawalpindi, were stayed till the said date. The case was fixed on
12-1-2005, Malik Akhtar Hussain Awan, Advocate appeared and got adjournment on
the ground that he had received the telephonic message from the respondent to appear
in this case, which was allowed. Malik Akhtar Hussain Awan, Advocate was directed
to file power of attorney and reply of the petition within fortnight with advance copy
to the learned counsel of the petitioner. Thereafter the case was fixed on 1-3-2005;
office was directed to fix the case after notice to the respondent directly as well as
through the agency of the Senior Civil Judge concerned for 31-3-2005. The
restraining order shall remain in the field till the aforesaid date with the same
conditions. Thereafter the case was fixed on 18-5-2005. The aforesaid facts were
highlighted in order dated 18-5-2005 and office was directed to fix this case after
notice to the respondent in terms of the modes prescribed in order dated 18-5-2005 for
16-6-2005. Office sent notice to the respondent on 28-6-2005 for 6-9-2005. Despite
notice nobody entered appearance on behalf of the respondent. The proceedings in the
suit of the respondent have already been stayed in view of the order dated 7-12-2004,
which was extended off and on as is depicted from the order sheet of this Court with
regard to staying of the proceedings must be in the knowledge of the respondent, copy
of the same would have come on the file of his suit; therefore, I have no other
alternative except to pass ex parte order against the respondent. Despite repeated calls
he did not enter appearance. This fact shows that respondent is not interested to
oppose this application.
3. The learned counsel of the petitioner submits that the respondent has filed the suit
in question against the petitioner mala fide simply to harass the petitioner. In spite of
the service, he did not enter appearance before this Court as is evident from the order
sheet. She further submits that convenience of the lady be given due weight as
compared to the men.
4. I have given my anxious consideration to the contents of the learned counsel of the
petitioner and perused the record.
5. It is settled proposition of law that superior Courts will give due weight benefit to
the inconvenience of the ladies as compared to the men as per law laid down by this
Court in T.A. No.324/C of 2004 vide order dated 7-9-2004 after considering all the
case-law on the subject. For the reasons recorded in the said order of this Court, this
application is allowed as prayed for. Therefore, I would direct that the suit filed by
respondent titled "Muhammad Ali son of Muhammad Afzal v. Mst. Shaheen daughter
of Muhammad Yasin" suit for declaration and permanent injunction, which is pending
in the Court of Mr. Tahir Abbas Sipra, Civil Judge/Magistrate, Rawalpindi, be
withdrawn from the said Court and entrust to the Senior Civil Judge, Lahore, who is
directed to entrust the same to the competent Court, Civil Judge/ Magistrate, Lahore,
who is directed to proceed in the matter after notice to the plaintiff. The petitioner is
directed to appear before the Senior Civil Judge, Lahore on 17-10-2005.
With these observations the application is accepted. Copy Dasti on payment of usual
charges.
H.B.T./S-449/L Application allowed.

P L D 2004 Lahore 77
Before Maulvi Anwarul Haq, J
Mst. NAZIR FATIMA ---Petitioner
Versus
NAZIM UNION COUNCIL, WARD NO.5, DHOKE HASSU, RAWALPINDI and

another---Respondents
Writ Petition No.1862 of 2003, heard on 10th November, 2003.
West Pakistan Family Courts Act (XXXV of 1964)-----
----S. 5 & Sched.---Muslim Family. Laws Ordinance (VIII of 1961), Ss.7(3) & 8---
Dissolution of marriage---Delegation of right to divorce by husband to wife---Exercise of
said right---One of the conditions of the marriage between parties was that husband had
delegated the right to divorce wife and entry to that effect was made in Column No.18 of
Nikahnama---Wife in exercise of said right pronounced divorce upon herself for her
husband and a notice was sent to Nazim Union Council concerned ---Nazim had
intimated wife that husband being not ready to pronounce divorce, wife could approach
the Court as he could not grant Khula and Nazim sent the case to the Family Court
---Nazim was oblivious of legal position as right of divorce could be lawfully delegated
by husband to wife and that had happened in the present case and notice was sent by wife
in compliance with the terms of Ss.7 & 8 of Muslim Family Laws Ordinance, 1961---
Ninety days prescribed period having expired after receipt of notice issued by wife and
re-conciliation being not possible between the parties, law as prescribed in Ss.7(3) & 8 of
Muslim Family Laws Ordinance, 1961 would have its course ---Nazim would issue
requisite document regarding receipt of notice and failure of reconciliation within
prescribed time.
Waqarul Haq Sheikh for Petitioner.
Tanvir Iqbal, A.A.-G. with Khalid Mahmood, Nazim for Respondent No. 1.
Date of hearing: 10th November, 2003.
JUDGMENT
The petitioner Mst. Nazir Fatima was married to Muhammad Shahid respondent No.2.
The Nikahnama was duly drawn up in the prescribed forms. The marriage was thus
performed on 11-4-2001. One of the conditions of the marriage was that the husband i.e.
respondent No.2 delegated the right to divorce to Mst. Nazir Fatima petitioner. Entry was
duly made in Column No.18 of the Nikahnama. In the exercise of the said right, the
petitioner pronounced divorce upon herself for the respondent No.2, her husband on 4-1-
2003. A notice was sent to the respondent No. 1 in compliance with the law. Now the
respondent No.1 had intimated the petitioner on 12-5-2003 (Annex. 'A') that since the
husband is not ready to pronounce divorce, the petitioner may approach the Court as he
cannot grant Khula'. He accordingly sent the case to the Family Court.
2. In response to the notices issued, learned A.A.-G. has put in appearance alongwith the
Nazim respondent No. 1. When confronted he said that the husband of the petitioner-lady
had appeared before him and had not denied the delegation of the said authority.
However, on his own understandingly he opined that divorce cannot be pronounced by
the petitioner in any manner.
3. It is but obvious that the respondent No. 1 is oblivious of the legal position. The right
of divorce can be lawfully delegated by the respondent husband to the wife and this is
what that has happened in this case as I would be evident from Column No. 18 of the
Nikahnama. The notice was sent by the petitioner-lady in compliance with the terms of
section 8 read with section 7 of the Muslim Family Laws Ordinance, 1961.
4. Now according to Nazim respondent No.1, the time prescribed by law i.e. 90 days had
expired after the receipt of the notice issued by the petitioner-lady and re-conciliation is
not possible between the parties. This being so, the, law as prescribed in section 8 read
with section 7(3) of the Family Laws Ordinance, 1961, shall have its course.
5. The writ petition is allowed. The impugned order dated 12-5-2003 of the respondent
No.1, Union Council No.5. Dhoke Hassu, Rawalpindi, is set aside being without lawful
authority. He undertakes that he will issue the requisite documents regarding the receipt
of the notice and failure of re-conciliation within the prescribed time. No order as to
costs.
H.B.T./N-372/L Petition allowed.

2000 C L C 202
[Lahore]
Before Mumtaz Ali Mirza, J
ABDUL HASEEB---Petitioner
versus
CHAIRMAN, ARBITRATION COUNCIL and others---Respondents
Writ Petition No. 1469 of 1999, heard on 22nd September, 1999.
----Ss. 7 & 8---Divorce---Delegated power of divorce---Scope---Only that

divorce, would become final on the expiry of a period of 90 days which was
pronounced by a person having validly delegated power of divorce---Where
the question of delegation of right of divorce to the wife was undisputed or
was such as was admitted by the husband to be correct, in that event alone, the
divorce would have become final on the expiry of a period of 90 days.
----Ss. 7 & 8---Constitution of Pakistan (1973), Art. 199---Constitutional

petition---Non-delegation of right of divorce, plea of---Holding of inquiry into
the matter by Chairman, Arbitration Council---Wife, by using delegated right
of divorce sent notice of divorce to the husband---Husband denied delegation
of any such right to the wife---Chairman, Arbitration Council held inquiry and
found such plea of husband as incorrect---Effect---Chairman, Arbitration
Council could pot record a binding determination of fact as to the existence or
otherwise of a right in favour of the wife---Order of the Chairman, Arbitration
Council giving his finding after holding an inquiry with a question of fact was
wholly without any jurisdiction and without lawful authority and the same was
set aside.
Syed Ali Nawaz Gerdazi v. Lt.-Col. Muhammad Yousaf PLD 1963 SC 51;
Mst. Fehmida Bibi v. Mukhtar Ahmad and another PLD 1972 Lah. 694; Mst.
Zakia Farooq v. Chairman, Union Council and another 1991 CLC 1720; Dr.
Syed Qamber Murtaza Bokhari v. Chairman, Arbitration and Reconciliation
Committee, Lahore and another 1995 CLC 1524; Mst. Shame Farooq v.
Chairman, Union Committee, Ward No.4, Lahore. Cantt. 1996 CLC 673 and
Bushra Qasim Khan v. Dr. Abdul Rashid and another PLD 1997 Lah. 484 rel.
Tariq Aziz for Petitioner.

Afnan Karim Kundi for Respondent No. 3.
Date of hearing: 22nd September, 1999.
JUDGMENT
The petitioner has through the instant Constitution petition questioned the
legality and the propriety of the order, dated 28-5-1999 passed by the
Chairman, Arbitration Council constituted under the provisions of the Muslim
Family Laws Ordinance, 1961.
2. The facts forming the background of the Constitution petition are that the
petitioner and respondent No.3 were married on 2-11-1998. Matrimonial
disputes having arisen between the two, respondent No.3 left the house of the
petitioner. In the purported exercise of the right of divorce allegedly delegated
to her by the petitioner, she sent a notice of Talaq to the petitioner and a copy
of the same to the Chairman, Arbitration Council, respondent No.1 who issued
notice to the parties for affecting a reconciliation between the two. However,
the petitioner on appearing before respondent No. 1 took up the position that
he had never delegated the right of divorce to respondent No.3 and the entries
made to that effect in the Nikahnama were forged and fabricated and that being
so. respondent No.3 could not issue the notice of Talaq to either the petitioner
or to the Chairman, Arbitration Council. On the plea to the aforesaid effect
having been taken by the petitioner as to the non-delegation of the right of
divorce by the petitioner to respondent No.3, respondent No. 1 embarked upon
an inquiry into the allegations as to the non-delegation of right of divorce and
the forgery and the fabrication made in the Nikahnama and vide the impugned
order held that the delegation of the right of divorce had validly been made by
the petitioner to respondent No.3 and that there was no fabrication and forgery
in the various columns of Nikahnama as alleged by the petitioner. These
findings of the Chairman, Arbitration Council. respondent No. l have been
assailed through the instant Constitution petition by and on behalf of the
petitioner. .
3. Mr. Tariq Aziz, Advocate appearing on behalf of the petitioner has raised the
following contention:--
"that the jurisdiction of a Court or a Tribunal is conferred by law and no Court

or Tribunal can assume unto itself any jurisdiction not so conferred on it.
Elaborating his submissions, learned counsel for the petitioner argued that the
import and purport of the provisions of section 7 of the Muslim Family Laws
Ordinance, 1961 was to try to bring about reconciliation between the two
spouses who fall apart for one reason or the other. In the event of the
reconciliation not being possible as a result of the effort made by the
Arbitration Council. All that the Chairman of the said Council has to do is to
record a finding as to the failure of the reconciliation proceedings. He has no
jurisdiction or authority to embark upon and elaborate inquiry, record evidence
as to the disputed questions of fact and give a finding thereon on the basis of
the evidence led before him. In support of the submissions that the Chairman,
Arbitration Council lacked the jurisdiction to pass the order which he did,
learned counsel for the petitioner placed reliance on the following judgment:--
(i) Syed Ali Nawaz Gerdazi v. Lt.-Col. Muhammad Yousaf PLD 1963 SC
51,
(ii) Mst. Fehmida Bibi v. Mukhtar Ahmad and another PLD 1972 Lah. 694,
(iii) Mst. Zakia Farooq v. Chairman, Union Council and another 1991 CLC
1720 (Lahore),
(iv) Dr. Syed Qamber Murtaza Bokhari v. Chairman, Arbitration and

Reconciliation Committee, Lahore and another 1995 CLC 1524 (Lahore),
(v) Mst. Shama Farooq v. Chairman, Union Committee, Ward No.4,

Lahore Cantt. 1996 CLC 673 (Lahore),
(vi) Bushra Qasim Khan v. Dr. Abdul Rashid and another PLD 1997 Lah.
484.
4. I have gone through the judgments referred to by the learned counsel for the
petitioner. They are on all fours with the facts of this case.
5. Mr. Afnan Karim Kundi, Advocate appearing on behalf of respondent

No.3 could not refute the weighty arguments of the learned counsel for the
petitioner except saying that the Chairman, Arbitration Council was fully
competent to pass the order which he did and that on the expiry of a period of
90 days, the divorce pronounced by respondent No.3 in the delegated exercised
of right of divorce had become final.
6. I am afraid, the contention of the learned counsel for respondent No.3 has
any force. Only that divorce would become final on the expiry of a period of
90 days which has been pronounced by a person given in the exercise of a
validly delegated right vested in him or her. If the question of delegation of
right of divorce to respondent No.3 had been undisputed or was such as was
admitted by the petitioner to be correct, in that event alone the divorce would
have become final on the expiry of a period of 90 days. However, such is not
the position in the instant case. The very right of respondent No.3 to pronounce
Talaq has been disputed and questioned by the petitioner on the plea that at no
point of time was such a right delegated by him to respondent No.3. He rather
went a step further and alleged that the entries made in the Nikahnama
showing the right of divorce as having been delegated by the petitioner to
respondent No-3 were forged and fabricated. Such being the nature of
allegations and counter allegations of the parties, the Chairman Arbitration
Council could not e record a binding determination of fact as to the existence
or otherwise of a right in favour of respondent No.3. Learned counsel for
respondent No.3 was pointedly asked to pin point a provision in the Muslim
Family Laws Ordinance. 1961 whereunder respondent No. 1 was competent to
pass the impugned order but he failed to refer to any such provision.
7. As a natural corollary to the aforesaid discussion, I hold that the order,

dated 28-5-1999 passed by the Chairman, Arbitration Council is wholly
without any jurisdiction and without lawful authority. The Constitution petition
is accordingly accepted and the order aforementioned is declared as such and
is set-aside. The parties are left to bear their own costs.
Q.M.H./M.A.K./A-156/L Petition allowed.

P L D 1967 Dacca 421
Before Muhammad Idris, J
TAHAZZAD HOSSAIN SIKDAR-Appellant
Versus
HOSSNEARA BEGUM AND OTHERS-Respondents
Appeal from Appellate Decree No. 115 of 1961, decided on 27th April 1965.
(a) Civil Procedure Code (V of 1908), S. 100-Second appeal-Finding of fact based on

evidence-Cannot be interfered with.
(b) Muhammadan Law-Divorce -Talak-i-Tafweez-Delegated right of divorce for

non-payment of dower-Not unreasonable or opposed to policy of Muhammadan
Law-Pronouncement of talak by wife need not be in presence of husband or witnesses.-
[Mirjan Ali v. Mst. Maimuna Bibi 53 C W N 302 dissented from].
Mirjan Ali v. Mst. Maimuna Bibi 53 C N W 302 dissented from.
Mulla's Muhammadan Law, 14th Edn., p. 169 re'.
Ahmed Ali v. Sobha Khatun Bibi and others 14 D L R 613; Mst. Rabilan v. Sanaullah 11
D L R 124 ; Mitha Khan v. Mst. Hidayat Bibi 11 D L R 17 and Majida Khatun Bibi v.
Paghula Muhammad P L D 1963 Dacca 583 distinguished.
Fyzee's Outlines of Muhammadan Law, p. 136 and Baillie's Digest of Mohammadan Law
1887, 2nd Edn., p. 76 ref.
Akhtaruddin Ahmad with Md. Nawab Ali and Nur Mohammad for Appellant.
Dr. M. A. Aleem with Khondkar Mahbubuddin Ahmad for Respondents.
JUDGMENT
This appeal arises out of a suit for restitution of conjugal rights. The case of the plaintiff
is briefly this: Plaintiff married defendant No. 1 on the 24th Falgoon, 1359 B.S.
corresponding to 8-3-1953. This marriage was duly registered before the local Muslim
Marriage Registrar. At the time of the marriage there were stipulations in the kabin
relating to the marriage by which the husband authorised the wife to divorce herself from
him on the happening of certain contingencies. The marriage was consummated and the
wife lived with the plaintiff at his quarters at Barisal where the plaintiff served as a
constable. She also lived for some time in the village house of the plaintiff. On several
occasions, she was taken by her brother defendant No. 2 to his house on pleasure trips.
Finally she was taken to his house at Tuta Bari in Agrohayan, 1364 B.S. She was detained
there by defendants 2 and 3. They did not allow her to come back to the plaintiff. On
several occasions, plaintiff visited her at her father's house. He also remitted her money
by postal money orders. He also sent her clothes etc., by postal parcels. He made repeated
attempts to bring her but failed. His final attempt to bring her in Agrahayan, 1365 B.S.
also failed. Subsequently plaintiff came to know that defendant No. l exercised her
deligated authority of divorce and that divorce was registered in the office of the local
Marriage Registrar. The plaintiff asserted that the alleged Talak-e-Tafweez was collusive
and fraudulent and without authority as there was no happening of any contingency
entitling the defendant No. 1 to exercise the delegated authority of divorce. It is stated
that the marriage still subsists. Hence this suit for restitution of conjugal rights.
Defence is that defendant No. 1 exercised the delegated right of divorce as contingencies
on the happening of which this right could be exercised, actually happened. At the time of
marriage there was a stipulation that the plaintiff would pay ornaments and clothes in
cash to the value of Rs. 5,000 00 to defendant No. 1, but plaintiff gave her old clothes and
ornaments borrowed from others and those were subsequently taken away from her.
Thereafter she demanded new ornaments. There was an altercation between the couple
over this. As a result defendant No. 1 was sent to the house of her brother defendant No.
2 in the last part of Ashar, 1364 B.S. Thereafter plaintiff took no care of defendant No. 1.
He did not give her maintenance. Defendant No. 1 repeatedly demanded the prompt
dower but plaintiff failed to pay it. So defendant No. 1 exercised the delegated right of
divorce on 21-9-1958. The divorce by Tafweez was duly registered. The marital tie
between the couple has been irrevocably dissolved. The plaintiff is not entitled to claim
defendant No. 1 as wife.
The learned Munsif on a consideration of the evidence held that the contingencies on the
happening of which the defendant No. 1 could exercise the delegated right of divorce, did
not take place. The learned Munsif disbelieved the defence case that old ornaments were
given. It was also held that although plaintiff was not bound to give the defendant No. 1
maintenance as she refused herself to him, the husband remitted money to her. The
learned Munsif also held that there was no demand for prompt dower. It was also found
by the learned Munsif that there was no formal pronouncement of talak by the defendant
No. 1 as required by law. Accordingly the suit was decreed.
On appeal, the learned District Judge held that the plaintiff failed to pay the prompt
dower although it was repeatedly demanded by defendant No. 1. It was further held that
plaintiff did not pay defendant No. 1 maintenance during the period from later part of
Ashar, 1364 B. S. to Aswin, 1365 B. S. According to the learned District Judge, as the
contingencies 2 and 5 as mentioned in the kabinnama happened, defendant No. 1 could
exercise the delegated right of divorce and that she exercised that right by formal
pronouncement of talak as required by law. The learned District Judge held that the
marriage was dissolved and that the marital tie did not exists. The appeal was accordingly
allowed, the decision of the learned Munsif was reversed and the suit was dismissed.
Hence this appeal at the instance of the plaintiff.
Mr. Akhtaruddin Ahmed, the learned counsel on behalf of the appellant has contended
that the lower appellate Court erred in law in holding that the contingencies mentioned in
the kabinnama did happen to enable the wife to repudiate the marriage.
The learned District Judge referred to the evidence of defendant No. 1 and her brother D.
W. 2 and came to the conclusion from their evidence that the wife demanded the prompt
dower herself and also through her brother and that the plaintiff did not pay it. As the
finding that the wife demanded prompt dower and that the plaintiff did not pay it is based
on evidence, there is no ground for interference with this finding in second appeal.
The learned counsel has contended that as D. W. 1 could not state the date, month or year
of the demand for the prompt dower, the lower appellate Court erred in holding that there
was demand for prompt dower. The learned Judge did not consider the evidence that D.
W. 1 could not state the date, month or year of the demand of the prompted dower. These
are not such material omissions for which this Court should interfere with this finding in
second appeal.
The learned counsel on behalf of the appellant has drawn attention to the statement in the
deed of divorce Exh. D that plaintiff divorced her in 1363 B.S. and that as such there
could not be any demand for prompt dower in Ashar, 1364 B.S. It is nobody's case that
plaintiff divorced defendant No. 1 in 1363 B.S.
It has also been argued that as the evidence of D. W. 1 Abul Hossain that demands were
made for prompt dower were not corroborated by independent witness, the lower
appellate Court erred in accepting his evidence. This is a question of fact and it was for
the lower appellate Court to believe or not to believe his evidence. It may be noted that a
brother was al natural witness to make demands for prompt dower on behalf of his sister.
It also may be stated here that plaintiff did not make any denial about the demand for
prompt dower made by D. W. 1.
The learned counsel has also contended that the delegated right of divorce for
non-payment of prompt dower is unreasonable and opposed to the policy of
Muhammadan Law and that as such defendant No. 1 was not entitled to exercise the
delegated right of divorce for non-payment of prompt dower. In support of this
contention, reference has been made to Fyzee's Outlines of Muhammadan Law at page
136. The following observation appears there:-
"Tyabji has pointed out that the breach of a valid condition in a marriage contract
does not necessarily give the wife a right to have the marriage dissolved, and he
has discussed exhaustively the problems that commonly arise in India."
Reference has also been made to Baillie's Digest of Muhammadan Law 1887 Second
Edition at page 76. The following observations have been made there;
"When anything is stipulated for in a contract of marriage which is contrary to

law, as, for example, that the husband shall not marry another wife during the
lifetime of the party with whom the contract is made, nor privately entertain a
woman as his concubine, the condition is void, and the contract valid together
with the dower. In like manner, if the husband should stipulate for the payment of
the dower at a certain term, and that in the event of failure the contract shall be
null, both contract and dower are binding and the condition void."
These observations do not indicate that delegated right of divorce for non-payment of
prompt dower is unreasonable and opposed to the policy of Muhammadan Law.
The learned counsel on behalf of the appellant has also argued that dower is a simple debt
and that as the debt could be recovered by other means, it is not reasonable that delegated
right of divorce should be exercised for non-payment of prompt dower. But when the
right is delegated, there is no legal bar to the exercise of this right.
It has also been argued that in the facts of the present case, the plaintiff was not bound to
give maintenance, the delegated right of divorce could not be exercised. In support of this
contention reference has been to the cases reported in 14 D L R 613, 11 D L R 124, 11 D
L R 17,and P L D 1963 Dacca 583..
In the case of Ahmed Ali v. Sabha Khatun Bibi and others (14 D L R 613) it has been
held that where the wife has refused to live with her husband and to perform her marital
obligations without any valid reason, the husband was not bound to maintain her wife and
his failure to do so would not entitle the wife to exercise the power of pronouncing a
valid talak and that constituted no defence to the husband's suit for restitution of conjugal
rights. But in the present case the wife did not refuse to live with the husband. It was the
husband who had sent her to her paternal house and did not give her maintenance for
more than a year.
In the case of Mitha Khan v. Mst. Hidyat Bibi (11 D L R 17) it has been held that if by
reason of the wife's conduct, the husband was under no obligation to pay her
maintenance, the former could not make the non-payment of ground for dissolution of her
marriage under the Act. That observation was made in a suit for dissolution of a marriage.
The present suit is one for restitution of conjugal rights. In the present case there is
nothing in the conduct of the wife for which the husband could refuse to pay her
maintenance.
In the case of Mst. Rahilan v. Sanaullah (11 D L R 124) it has been laid down that the
duty of the husband to maintain his wife is only this that, he is to give the wife food and
clothing and a place for residence. Under ordinary circumstances, the food, clothing and
residence are to be provided at the house of the husband and there will be no failure to
maintain unless the husband is not prepared or refuse to her food clothing at his own
house. It is only in exceptional circumstances that there would be a duty cast on the
husband to pay maintenance in cash. This will happen, for instance, where, under his
direction, the wife is living separately. In the present case the wife was living in the house
of her parents as she was sent by him thereafter a quarrel.
In the case of Majida Khatun Bibi. v. Paghalu Mohammad (P L D 1963 Dacca 583) it has
been laid down that where the wife refused herself to return to her husband's house
without sufficient cause, she was no entitled to maintenance. The facts of that case are
entirely different from the facts of the instant case. In the present case she did not refuse
herself to return to her husband's house. , She was sent to her parent's house by the
husband and he took no care about her and did not send her any maintenance there. The
above-mentioned cases are of no help to the appellant in the present case.
The learned counsel has also argued that in the talaknama there is mention of one quarrel
in 1363 B. S. and that as such the lower appellate court should not have accepted the
evidence of defendant No. 1 and of her brother defendant No. 2 that she was sent to her
paternal house after a quarrel in the last part of Ashar, 1364 B. S. This is a question of
fact and the lower appellate Court was entitled to accept the evidence of defendant No. 1
and of her brother.
It has also been argued that defendant No. 1 did not pronounce the talak by Tafweez
according to law. The defendant No. 1 deposed that she pronounced the talak three times.
The learned counsel has argued that as her evidence that she pronounced talak three times
is not corroborated by any other evidence, the lower appellate Court erred in law in
accepting her statement. In support of this contention reference has been made to the case
of Mirjan Ali v. Mst. Maimuna Bibi (53 C W N 302). In that case it has been laid down
that where by agreement between the parties, a Mohammadan husband confers on his
wife the power of divorcing him on the happening of a certain contingency, then the
marriage does not automatically stand dissolved on the happening of that contingency. In
such cases, it is always necessary that there shall be a formal pronouncement of talak and
it should be made either to the husband and/or in the presence of witnesses. In that case
there was evidence that wife pronounced the talak three times. But there was no other
corroborative evidence. But in the present case the evidence of defendant No. 1 is
corroborated by the deed of divorce.
With great respect, I cannot also agree with the view that pronouncement of talak by the
wife is to be made either to the husband or in presence of witnesses. As the husband can
exercise right of divorce in the absence of wife or in the absence of witnesses, the wife
also in the absence of the husband or witness can exercise the delegated right of divorce
on the happening of contingencies. It is not necessary that she is to exercise that right in
the presence of the husband or in the presence of witnesses. This view is supported by the
following observation in Mullah's Muhammadan Law, 14 Edn., page 169.
"An agreement made, whether before or after marriage, by which it is provided

that the wife should be at liberty to divorce herself in specified contingencies is
valid, if the conditions are of a reasonable nature are not opposed to the policy of
the Mohammadan Law. When such an agreement is made, the wife may, at any
time after the happening of any of the contingencies, repudiate herself if the
exercise of the power, and a divorce will then take effect to the same extent as if a
talak had been pronounced by the husband. The power so delegated to the wife is
not revocable, and she may exercise it even after the institution of a suit against
her for restitution of conjugal rights."
It has also been argued that there was no proper appreciation of the evidence by the lower
appellate Court. I cannot accept this contention. The judgment does not indicate that there
was no proper appreciation of evidence.
Dr. M. A. Aleem, the learned counsel on behalf of the respondent has represented that as
there was no injunction order against defendants, defendant No. 1, after dismissal of the
appeal, has taken a second husband. This will have no effect on the merits of the appeal.
Had it been found that the delegated right of divorce was exercised illegally, the second
marriage would not stand as a bar to the decree. However, it is not necessary to enter into
the question in detail as the decision of the lower appellate Court affirming the order of
dismissal passed by the trial Court is going to be affirmed.
In the result, the appeal is dismissed with cost. The judgment and decree passed by the
lower appellate Court are affirmed.
Leave under clause 15 of the Letters Patent prayed for is refused.
K. B. A.
Appeal dismissed.
2006 Y L R 335
[Lahore]
B efore Muhammad Akhtar Shabbir, J
MEHNAZ MEHBOOB---Petitioner
Versus
ISHTIAQ UR RASHID and another---Respondents
Writ Petition No. 2179 of 2004, heard on 22nd July, 2005.
----Ss. 7 & 8---Talaq-i-Tafweez---Kinds---Power to give divorce, though belonged to

husband, but he could delegate said power to wife or to third person, either absolutely or
conditionally and either for a particular period or permanently---Section 7 of Muslim
Family Laws Ordinance, 1961 had specifically provided such Talaq which was known as
'Talaq-i-Tafweez'---Person to whom power was so delegated, could then pronounce same
accordingly---Temporary delegation of power was irrevocable, but a permanent
delegation could be revoked---Such delegation of option called `Tafweez' by husband to
his wife, would confer on her power of divorcing herself---Said 'Tafweez' was of three
kinds viz., Ikhtiar, giving her the authority to Talak herself; Amr-ba-Yed, leaving the
matter in her own hand and Mashiat, giving her the option to do what she liked---All
these factors when analyzed would resolve themselves into one, viz., leaving it in her or
somebody else's option to do what she or he liked---Wife could not sue to enforce
authority alleged to have been given to her, but she would sue after she had given effect
to it to make husband liable for dower or to restrain him from seeking conjugal
relations---Wife was entitled to exercise her right of 'Tafweez of Talaq' and she was
entitled to be separated from her husband.
----Ss. 7 & 8---Talaq---Right of Talaq-i-Tafweez, exercise of---Talaq once pronounced,

would be effective after expiry of 90 days, unless it was revoked by husband or wife
exercising her right of Talaq-i-Tafweez.
Dr. Qambar Murtaza Bokhari v. Mst. Zainab Bashir 1995 CLC 1574 ref.
----Ss. 7 & 8---Authority of Chairman Arbitration Council---Chairman Arbitration

Council had no authority to adjudicate upon validity or otherwise of 'Talaq' pronounced
by husband or his delegatee (wife)---Arbitration Council was constituted only for purpose
of bringing about reconciliation between parties and in event of its failure, 'Talaq', ipso
facto, would become effective on expiry of 90 days of receipt of notice under S.7 of
Muslim Family Laws Ordinance, 1961---Husband, in case of delegating right of Talaq
(Tafweez) to wife at the time of marriage, which fact if duly incorporated in 'Nikahnama',
and wife in exercise of her said right issued notice to Chairman Union Council---
Chairman was duty bound to constitute Arbitration Council and proceed in accordance
with provisions and he had no right to declare right of divorce through Tafweez as un-
Islamic, unlawful and against Injunctions of Qur'an and Sunnah---Since wife in case, had
issued notice to Chairman Union Council, who constituted Arbitration Council, but
compromise could not be effected between parties, no option was left with Arbitration
Council, but to declare that Arbitration proceedings had failed.
Dr. Qambar Murtaza Bokhari v. Mst. Zainab Bashir 1995 CLC 1574; Batool Tahir v.
Province of Sindh through Secretary, Local Government Sindh and 3 others PLD
2005 Kar.358 and Alia Parveen v. Executive District Officer (Revenue), Sheikhupura
and 3 others 2004 CLC 652 ref.
Nahida Mehboob Ellahi for Petitioner.
Respondent No.1 ex parte.
Raja Saeed Akram, A.A.-G. for Respondent No.2.
Date of hearing: 22nd July, 2005.
JUDGMENT
MUHAMMAD AKHTAR SHABBIR, J.---Facts constituting to the filing of present

writ petition are to the effect that the petitioner had contracted her marriage with
respondent No.1 on 12-4-2002 at Rawalpindi and Rs.3,00,000 (three lac) was fixed as
dower and as per terms and conditions of 'Nikkah Nama', dated 12-4-2002, the
respondent No.1 had delegated right of divorce to the petitioner. 'Rukhsati' of the
petitioner had taken place and marriage was consummated. Respondent No.1 husband
of the petitioner was habitually cruel and his whole family mentally tortured the
petitioner by making illegal demands and criticizing her for not bringing enough
dowry. The petitioner decided that there was no mental equatum between the parties
and it was difficult for her to live with respondent No.1 as his legally wedded wife
within the limits of "Almighty" Allah. Therefore, the petitioner in exercise of her
delegated right got herself divorced from respondent No.1 by executing a divorce-
deed and issued notice to the Nazim Union Council, Dhoke Munshi Khan, Rawalpindi
who was pleased to issue notice to respondent No.1 to appear and to appoint his
arbitrator. In reply to the said notice, respondent No.1 intentionally did not appear but
sent a reply through registered post alleging that the petitioner has herself not
executed the deed and her signature on the same were forged and fabricated. The
respondent Nazim, Union Council constituted "Arbitration Council". During the
Arbitration proceedings, no compromise was effected between the parties and
respondent No.2 finally directed respondent No.1 to personally appear. The
respondent No.1 produced the 'Fatavas'/ opinions of "Ulma-e-Kram" to the effect that
delegated right of divorce is un Islamic. In view of the 'Fatavas', respondent No.2
through a detailed order has opined that wife is not entitled to exercise the right of
'Talaq' in accordance with the principle of Qur'an and "Sunnah". Nazim Union
Council/respondent No.2 vide his order, dated 5-7-2004 directed the petitioner to
approach the Judge Family Court for decree of dissolution of marriage. The said order
has been assailed by the petitioner through the instant writ petition.
2. Notice was issued to the respondent No.1 but no one has entered appearance on his
behalf, therefore, he was proceeded against ex parte on 21-7-2005.
3. I have heard the arguments of learned counsel for the petitioner and perused the
record.
4. Although the power to give divorce belongs to the husband, he may delegate the
power to the wife or to a third person, either absolutely or conditionally, and either for
a particular period or permanently. The person to whom the power is thus delegated
may then pronounce the divorce accordingly. A temporary delegation of the power is
irrevocable but a permanent delegation may be revoked. The pronouncement of
divorce after demand had not caused public policy and principles of Muhammadan
Law. Such a divorce is known as "Talak by Tafweez". The delegation of option called
"Tafweez" by the husband to his wife, confers on her the power of divorcing herself.
Tafweez is of three kinds, (a) Ikhtiar, giving her the authority to Talak herself, (b)
Amr-ba-Yed, leaving the matter in her own hand, and (c) Mashiat, giving her the
option to do what she likes. All these, when analyzed, resolve themselves into one.
Viz., leaving it in her or somebody else's option to do what she or he likes. The wife
cannot sue to enforce the authority alleged to have been given to her, but she sues
after she has given effect to it to make the husband liable for her dower or to restrain
him from seeking conjugal relations.
5. In "Fatava Rizvia" Volume-12, it is mentioned that:-
6. Keeping in view the above discussion, it is manifestly clear that wife is entitled to
exercise her right of Tafweez of `Talaq' and she was entitled to be separated from her
husband.
7. `Talaq' once pronounced would be effective after expiry of 90 days unless it is

revoked by the husband or by wife exercising her right of "Talaq-i-Tafweez". This
would be so notwithstanding conduct of the parties. In this context reliance can be
placed to the case of Dr. Qambar Murtaza Bokhari v. Mst. Zainab Bashir (1995 CLC
1574).
8. Section 7 of the Muslim Family Laws Ordinance, 1961, provided that:-
"(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) -------
(3) -------
(4) within thirty days of the receipt of notice under subsection (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 all steps necessary to bring
about such reconciliation".
Section 8 of the Act further contemplated that:-
"Where the right to divorce has been duly delegated to the wife and she wishes
to exercise that right, or where any of the parties to a marriage wishes to
dissolve the marriage otherwise than by `Talaq' the provisions of section 7
shall, mutatis mutandis and so far as applicable apply."
This section specifically provides for another form of `Talaq' known as "Talaq-i-
Tafweez" i.e. delegating the right of divorce to the wife or to a third person either
absolutely or conditionally and either for a temporary period or permanently, and laid
down that the procedure provided in section 7 for divorce shall have to be followed.
9. Chairman Arbitration Council had no authority to adjudicate upon validity or

otherwise of `Talaq' pronounced by husband or his delegatee (wife)-Arbitration
Council is constituted only for purpose of bringing about reconciliation between
parties and in event of its failure, `Talaq' ipso facto becomes effective on expiry of 90
days of the receipt of notice under section 7 of Muslim Family Laws Ordinance, 1961.
The husband delegating right of `Talaq' (Tafweez) to wife at the time of marriage,
which fact was duly incorporated in "Nikahnama". In the instant case, the right of
Tafweez has been delegated to the wife/petitioner who in exercise of her right issued
notice to the Chairman, Union Council, concerned and it was the duty of the
Chairman to constitute the Arbitration Council and proceed in accordance with the
provisions and he has no right to declare right of divorce through Tafweez as un-
Islamic. In this context reliance can be placed to the case of Ms. Shema Farooq v.
Chairman, Union Committee, Ward No.4, Lahore Cantt. (1996 CLC 673), wherein it
was observed that the Chairman, Arbitration Council had no authority to go into the
validity of `Talaq' of the factum of permission---Order passed by Chairman
Arbitration Council that pronouncement of `Talaq' was ineffective was declared to be
without lawful authority and of no legal effect. In another case titled as Batool Tahir
v. Province of Sindh through Secretary, Local Government Sindh and 3 others (PLD
2005 Karachi 358), the Division Bench of the Karachi High Court observed that
Councilors had no authority in law to give a finding on validity or otherwise of
`Talaq' and they had travelled beyond their jurisdiction by declaring the `Talaq'
pronounced by the husband ineffective. Section 7 of the Muslim Family Laws
Ordinance, 1961 required the husband to give a notice to the Chairman in terms of
section 7(1) and upon expiry of 90 days from the date of delivery for the notice to the
Chairman, `Talaq' would become effective. In another case titled as Alia Parveen v.
Executive District Officer (Revenue), Sheikhupura and 3 others (2004 CLC 652), this
Court has already observed that the Arbitration Council had the jurisdiction only to
matters mentioned in sections 6, 7, 8 and 9 of Muslim Family Laws Ordinance, 1961
and for proceedings under those sections of Legislature had framed Rules under the
Muslim Family Laws Ordinance---Arbitration Council had not the power to make
unlawful anything declared lawful by Islam nor could do vice versa. It is established
principle of Islamic jurisprudence that the right of `Talaq' can be delegated to the wife
by the husband at the time of "Nikkah" which is called "Talaq-e-Tafweez" and this
right had been exercised by the petitioner under the power delegated to her. The
Chairman/Nazim or the Arbitration Council was not authorized to declare that the
right of "Talaq-e-Tafweez" was unlawful and against the Injunctions of "Qur'an" and
"Sunnah". Since the petitioner has issued notice to the Chairman Union Council, who
constituted Arbitration Council but compromise could not be effected between the
parties, therefore, no option was left with the Arbitration Council but to declare that
the Arbitration proceedings failed.
In view of the above discussion, this writ petition is accepted and the impugned order,
dated 5-7-2004 passed by respondent No.2/Nazim, Union Council No.79, Dhoke
Munshi Khan Tehsil and District Rawalpindi is declared to have been passed illegally
and of no legal effect, hence set aside.
H.B.T./M-1252/L Petition accepted.

Citation Name : 1965 PLD 274 DHAKA-HIGH-COURT
Side Appellant : GUL NEWAZ KHAN
Side Opponent : MST. MAHERUNNESSA BEGUM
Muhammadan Law Divorce-Dower, an essential condition of valid marriage-
Non-payment of prompt dower on demand-Wife can validly exercise her power
of divorce delegated to her at time of marriage-Exercise of such power by wife
not against public policy or Principles of Muslim Law-Talak-i-Tafweez -
Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(ii), (ix).
Citation Name : 1985 CLC 2855 LAHORE-HIGH-COURT-LAHORE
Side Appellant : CAROLINE REHMAN
Side Opponent : CHAIRMAN UNION COUNCIL
Muslim Family Laws Ordinance 1961 ---S.7--Christian Marriage Act (XV of 1872),
S.79--Delegation of right of divorce to wife--Exercise of such right by wife--
Notice of Talaq-Non-cognizance by Chairman---husband being Muslim was
governed by his own personal law in matter of divorce --Christian wife
exercising her right of divorce delegated to her by Muslim husband had sent
notice of Talaq--Refusal of Chairman, Union Council to take cognizance of said
notice, held, was illegal and without lawful authority--Case remanded to
Chairman for proceeding according to law.
P L D 1967 Dacca 421
Before Muhammad Idris, J
TAHAZZAD HOSSAIN SIKDAR-Appellant
Versus
HOSSNEARA BEGUM AND OTHERS-Respondents
Appeal from Appellate Decree No. 115 of 1961, decided on 27th April 1965.
(a) Civil Procedure Code (V of 1908), S. 100-Second appeal-Finding of fact based

on evidence-Cannot be interfered with.
(b) Muhammadan Law-Divorce -Talak-i-Tafweez-Delegated right of divorce

for non-payment of dower-Not unreasonable or opposed to policy of
Muhammadan Law-Pronouncement of talak by wife need not be in presence of
husband or witnesses. [Mirjan Ali v. Mst. Maimuna Bibi 53 C W N 302 dissented
from].
Mirjan Ali v. Mst. Maimuna Bibi 53 C N W 302 dissented from.
Mulla's Muhammadan Law, 14th Edn., p. 169 re'.
Ahmed Ali v. Sobha Khatun Bibi and others 14 D L R 613; Mst. Rabilan v.
Sanaullah 11 D L R 124 ; Mitha Khan v. Mst. Hidayat Bibi 11 D L R 17 and Majida
Khatun Bibi v. Paghula Muhammad P L D 1963 Dacca 583 distinguished.
Fyzee's Outlines of Muhammadan Law, p. 136 and Baillie's Digest of

Mohammadan Law 1887, 2nd Edn., p. 76 ref.
Akhtaruddin Ahmad with Md. Nawab Ali and Nur Mohammad for Appellant.
Dr. M. A. Aleem with Khondkar Mahbubuddin Ahmad for Respondents.
JUDGMENT
This appeal arises out of a suit for restitution of conjugal rights. The case of the
plaintiff is briefly this: Plaintiff married defendant No. 1 on the 24th Falgoon,
1359 B.S. corresponding to 8-3-1953. This marriage was duly registered before
the local Muslim Marriage Registrar. At the time of the marriage there were
stipulations in the kabin relating to the marriage by which the husband
authorised the wife to divorce herself from him on the happening of certain
contingencies. The marriage was consummated and the wife lived with the
plaintiff at his quarters at Barisal where the plaintiff served as a constable. She
also lived for some time in the village house of the plaintiff. On several occasions,
she was taken by her brother defendant No. 2 to his house on pleasure trips.
Finally she was taken to his house at Tuta Bari in Agrohayan, 1364 B.S. She was
detained there by defendants 2 and 3. They did not allow her to come back to the
plaintiff. On several occasions, plaintiff visited her at her father's house. He also
remitted her money by postal money orders. He also sent her clothes etc., by
postal parcels. He made repeated attempts to bring her but failed. His final
attempt to bring her in Agrahayan, 1365 B.S. also failed. Subsequently plaintiff
came to know that defendant No. l exercised her deligated authority of divorce
and that divorce was registered in the office of the local Marriage Registrar. The
plaintiff asserted that the alleged Talak-e-Tafweez was collusive and fraudulent
and without authority as there was no happening of any contingency entitling
the defendant No. 1 to exercise the delegated authority of divorce. It is stated that
the marriage still subsists. Hence this suit for restitution of conjugal rights.
Defence is that defendant No. 1 exercised the delegated right of divorce as

contingencies on the happening of which this right could be exercised, actually
happened. At the time of marriage there was a stipulation that the plaintiff
would pay ornaments and clothes in cash to the value of Rs. 5,000 00 to
defendant No. 1, but plaintiff gave her old clothes and ornaments borrowed from
others and those were subsequently taken away from her. Thereafter she
demanded new ornaments. There was an altercation between the couple over
this. As a result defendant No. 1 was sent to the house of her brother defendant
No. 2 in the last part of Ashar, 1364 B.S. Thereafter plaintiff took no care of
defendant No. 1. He did not give her maintenance. Defendant No. 1 repeatedly
demanded the prompt dower but plaintiff failed to pay it. So defendant No. 1
exercised the delegated right of divorce on 21-9-1958. The divorce by Tafweez
was duly registered. The marital tie between the couple has been irrevocably
dissolved. The plaintiff is not entitled to claim defendant No. 1 as wife.
The learned Munsif on a consideration of the evidence held that the

contingencies on the happening of which the defendant No. 1 could exercise the
delegated right of divorce, did not take place. The learned Munsif disbelieved the
defence case that old ornaments were given. It was also held that although
plaintiff was not bound to give the defendant No. 1 maintenance as she refused
herself to him, the husband remitted money to her. The learned Munsif also held
that there was no demand for prompt dower. It was also found by the learned
Munsif that there was no formal pronouncement of talak by the defendant No. 1
as required by law. Accordingly the suit was decreed.
On appeal, the learned District Judge held that the plaintiff failed to pay the
prompt dower although it was repeatedly demanded by defendant No. 1. It was
further held that plaintiff did not pay defendant No. 1 maintenance during the
period from later part of Ashar, 1364 B. S. to Aswin, 1365 B. S. According to the
learned District Judge, as the contingencies 2 and 5 as mentioned in the
kabinnama happened, defendant No. 1 could exercise the delegated right of
divorce and that she exercised that right by formal pronouncement of talak as
required by law. The learned District Judge held that the marriage was dissolved
and that the marital tie did not exists. The appeal was accordingly allowed, the
decision of the learned Munsif was reversed and the suit was dismissed. Hence
this appeal at the instance of the plaintiff.
Mr. Akhtaruddin Ahmed, the learned counsel on behalf of the appellant has
contended that the lower appellate Court erred in law in holding that the
contingencies mentioned in the kabinnama did happen to enable the wife to
repudiate the marriage.
The learned District Judge referred to the evidence of defendant No. 1 and her
brother D. W. 2 and came to the conclusion from their evidence that the wife
demanded the prompt dower herself and also through her brother and that the
plaintiff did not pay it. As the finding that the wife demanded prompt dower
and that the plaintiff did not pay it is based on evidence, there is no ground for
interference with this finding in second appeal.
The learned counsel has contended that as D. W. 1 could not state the date,
month or year of the demand for the prompt dower, the lower appellate Court
erred in holding that there was demand for prompt dower. The learned Judge
did not consider the evidence that D. W. 1 could not state the date, month or year
of the demand of the prompted dower. These are not such material omissions for
which this Court should interfere with this finding in second appeal.
The learned counsel on behalf of the appellant has drawn attention to the
statement in the deed of divorce Exh. D that plaintiff divorced her in 1363 B.S.
and that as such there could not be any demand for prompt dower in Ashar, 1364
B.S. It is nobody's case that plaintiff divorced defendant No. 1 in 1363 B.S.
It has also been argued that as the evidence of D. W. 1 Abul Hossain that
demands were made for prompt dower were not corroborated by independent
witness, the lower appellate Court erred in accepting his evidence. This is a
question of fact and it was for the lower appellate Court to believe or not to
believe his evidence. It may be noted that a brother was al natural witness to
make demands for prompt dower on behalf of his sister. It also may be stated
here that plaintiff did not make any denial about the demand for prompt dower
made by D. W. 1.
The learned counsel has also contended that the delegated right of divorce for
Muhammadan Law and that as such defendant No. 1 was not entitled to exercise
the delegated right of divorce for non-payment of prompt dower. In support of
this contention, reference has been made to Fyzee's Outlines of Muhammadan
Law at page 136. The following observation appears there:-
"Tyabji has pointed out that the breach of a valid condition in a marriage contract
does not necessarily give the wife a right to have the marriage dissolved, and he
has discussed exhaustively the problems that commonly arise in India."
Reference has also been made to Baillie's Digest of Muhammadan Law 1887
Second Edition at page 76. The following observations have been made there;
"When anything is stipulated for in a contract of marriage which is contrary to

law, as, for example, that the husband shall not marry another wife during the
lifetime of the party with whom the contract is made, nor privately entertain a
woman as his concubine, the condition is void, and the contract valid together
with the dower. In like manner, if the husband should stipulate for the payment
of the dower at a certain term, and that in the event of failure the contract shall
be null, both contract and dower are binding and the condition void."
These observations do not indicate that delegated right of divorce for

Muhammadan Law.
The learned counsel on behalf of the appellant has also argued that dower is a
simple debt and that as the debt could be recovered by other means, it is not
reasonable that delegated right of divorce should be exercised for non-payment
of prompt dower. But when the right is delegated, there is no legal bar to the
exercise of this right.
It has also been argued that in the facts of the present case, the plaintiff was not
bound to give maintenance, the delegated right of divorce could not be exercised.
In support of this contention reference has been to the cases reported in 14 D L R
613, 11 D L R 124, 11 D L R 17,and P L D 1963 Dacca 583..
In the case of Ahmed Ali v. Sabha Khatun Bibi and others (14 D L R 613) it has
been held that where the wife has refused to live with her husband and to
perform her marital obligations without any valid reason, the husband was not
bound to maintain her wife and his failure to do so would not entitle the wife to
exercise the power of pronouncing a valid talak and that constituted no defence
to the husband's suit for restitution of conjugal rights. But in the present case the
wife did not refuse to live with the husband. It was the husband who had sent
her to her paternal house and did not give her maintenance for more than a year.
In the case of Mitha Khan v. Mst. Hidyat Bibi (11 D L R 17) it has been held that if
by reason of the wife's conduct, the husband was under no obligation to pay her
maintenance, the former could not make the non-payment of ground for
dissolution of her marriage under the Act. That observation was made in a suit
for dissolution of a marriage. The present suit is one for restitution of conjugal
rights. In the present case there is nothing in the conduct of the wife for which
the husband could refuse to pay her maintenance.
In the case of Mst. Rahilan v. Sanaullah (11 D L R 124) it has been laid down that
the duty of the husband to maintain his wife is only this that, he is to give the
wife food and clothing and a place for residence. Under ordinary circumstances,
the food, clothing and residence are to be provided at the house of the husband
and there will be no failure to maintain unless the husband is not prepared or
refuse to her food clothing at his own house. It is only in exceptional
circumstances that there would be a duty cast on the husband to pay
maintenance in cash. This will happen, for instance, where, under his direction,
the wife is living separately. In the present case the wife was living in the house
of her parents as she was sent by him thereafter a quarrel.
In the case of Majida Khatun Bibi. v. Paghalu Mohammad (P L D 1963 Dacca 583)
it has been laid down that where the wife refused herself to return to her
husband's house without sufficient cause, she was no entitled to maintenance.
The facts of that case are entirely different from the facts of the instant case. In
the present case she did not refuse herself to return to her husband's house. , She
was sent to her parent's house by the husband and he took no care about her and
did not send her any maintenance there. The above-mentioned cases are of no
help to the appellant in the present case.
The learned counsel has also argued that in the talaknama there is mention of
one quarrel in 1363 B. S. and that as such the lower appellate court should not
have accepted the evidence of defendant No. 1 and of her brother defendant No.
2 that she was sent to her paternal house after a quarrel in the last part of Ashar,
1364 B. S. This is a question of fact and the lower appellate Court was entitled to
accept the evidence of defendant No. 1 and of her brother.
It has also been argued that defendant No. 1 did not pronounce the talak by
Tafweez according to law. The defendant No. 1 deposed that she pronounced the
talak three times. The learned counsel has argued that as her evidence that she
pronounced talak three times is not corroborated by any other evidence, the
lower appellate Court erred in law in accepting her statement. In support of this
contention reference has been made to the case of Mirjan Ali v. Mst. Maimuna
Bibi (53 C W N 302). In that case it has been laid down that where by agreement
between the parties, a Mohammadan husband confers on his wife the power of
divorcing him on the happening of a certain contingency, then the marriage does
not automatically stand dissolved on the happening of that contingency. In such
cases, it is always necessary that there shall be a formal pronouncement of talak
and it should be made either to the husband and/or in the presence of witnesses.
In that case there was evidence that wife pronounced the talak three times. But
there was no other corroborative evidence. But in the present case the evidence
of defendant No. 1 is corroborated by the deed of divorce.
With great respect, I cannot also agree with the view that pronouncement of
talak by the wife is to be made either to the husband or in presence of witnesses.
As the husband can exercise right of divorce in the absence of wife or in the
absence of witnesses, the wife also in the absence of the husband or witness can
exercise the delegated right of divorce on the happening of contingencies. It is
not necessary that she is to exercise that right in the presence of the husband or
in the presence of witnesses. This view is supported by the following observation
in Mullah's Muhammadan Law, 14 Edn., page 169.
"An agreement made, whether before or after marriage, by which it is provided

that the wife should be at liberty to divorce herself in specified contingencies is
valid, if the conditions are of a reasonable nature are not opposed to the policy of
the Mohammadan Law. When such an agreement is made, the wife may, at any
time after the happening of any of the contingencies, repudiate herself if the
exercise of the power, and a divorce will then take effect to the same extent as if a
talak had been pronounced by the husband. The power so delegated to the wife
is not revocable, and she may exercise it even after the institution of a suit against
her for restitution of conjugal rights."
It has also been argued that there was no proper appreciation of the evidence by
the lower appellate Court. I cannot accept this contention. The judgment does not
indicate that there was no proper appreciation of evidence.
Dr. M. A. Aleem, the learned counsel on behalf of the respondent has

represented that as there was no injunction order against defendants, defendant
No. 1, after dismissal of the appeal, has taken a second husband. This will have
no effect on the merits of the appeal. Had it been found that the delegated right
of divorce was exercised illegally, the second marriage would not stand as a bar
to the decree. However, it is not necessary to enter into the question in detail as
the decision of the lower appellate Court affirming the order of dismissal passed
by the trial Court is going to be affirmed.
In the result, the appeal is dismissed with cost. The judgment and decree passed
by the lower appellate Court are affirmed.
Leave under clause 15 of the Letters Patent prayed for is refused.
K. B. A. Appeal dismissed.
P D 1995 Lahore 187
Before Mrs. Fakhurin Nisa Khokltar, J
Dr. QAMBAR MURTAZA BOKHARI---Petitioner
versus
Mst. ZAINAB BASHIR---Respondent
Writ Petition No. 8810 of 1994, decided on 29th January, 1995.
(a) Muhammadan Law---
----Divorce---Delegated power of divorce to wife.--Husband can delegate power

to divorce to his wife by way of contract with condition, unconditional or subject
to the happening of some contingencies---When such power rests upon the
happening of certain contingencies, wife has to exercise the delegated power of
divorcing herself when the condition entitling her to exercise that power is
fulfilled but in case of unconditional power she can exercise the same when and
where required and in both these circumstances a formal pronouncement of
divorce is necessary---Such power, however can also be empowered on a third
party as well---Formal pronouncement of Talaq in all these cases is necessary.
The Holy Qur'an being a Code itself provides:
It is a simple Deen, and anybody who makes it complicated will stand

ostracized. The provisions of Islam in respect of divorce are very simple and
balanced. God has fixed the limits and no one can transgress over it.
Under Mohammedan Law husband enjoys an absolute power of divorce to his

wife. He may delegate this power to his wife by way of a contract. As a man in
person repudiates his wife so he may commit the power of repudiation to his
wife to repudiate herself. This power may be conferred on a third party as well.
When such power of repudiation is conferred on the wife or some third person
the divorce will take effect, if the power so conferred is exercised. This power can
be a conditional power or rests upon the happening of some contingencies. It can
also be unconditional. When it rests upon the happening of certain contingencies
then the wife should exercise the delegated power of divorcing herself when the
condition entitling her to exercise that power is fulfilled. But if that power is
unconditional she may exercise the same when and where required. In both
these circumstances a formal pronouncement of Talaq is necessary.
Wilson's Anglo-Mahomedan Law, VIth Edn.; Baillie's Digest of Mahomedan
Law, Book III, Chap. III; Mahomedan Law by Tayyabjee and Buffatan Bibi v. Sh.
Abdul Salim AIR 1950 Cal. 304 quoted.
(b) Muhammadan Law---
----Divorce---Delegated power of divorce---Once a person to whom the power to

divorce is delegated, pronounces divorce the power so delegated becomes
irrevocable and exercise of that power will operate as divorce of the wife by the
husband.
Mahomedan Law by Mulla; Baillie, p.19 and Akleema Khatoon v. Mohib-ur-

Rehman PLD 1963 Dacca 602 ref.
----Ss. 7 & 8---West Pakistan Rules under the Muslim Family Laws Ordinance,
1961, Form II, Co1.18---Divorce---Delegated power of divorce---Expression "after
the pronouncement of Talaq in any form whatsoever" in S.7, Muslim Family
Laws Ordinance, 1961 denotes also the divorce in writing---Where the
Nikahnama carried a stipulation against Col. 18 of Form II of West Pakistan
Rules under the Muslim Family Laws Ordinance, 1961 about the delegation of
Talaq Tawfeez, and no condition or contingency existed over there and wife had
exercised the delegated power of divorce (Talaq Tarafeez) and had repudiated
herself through a notice duly served upon the husband according to Ss.7 & 8 of
Muslim Family Laws Ordinance, 1961 stating therein that by virtue of Talaq
Tawfeez as it was not possible for her to live with the husband as wife arid
husband she repudiates herself---Held, when the person to whom the power to
divorce was expressly delegated pronounced divorce, the power so delegated
could not be recalled and became irrevocable and that would operate as divorce
of the wife by the husband---Notice sent by wife to the husband, in
circumstances, would be considered as a formal pronouncement of divorce by
the wife to repudiate herself in exercise of powers so given to her.
Mahomedan Law by Mulla; Digest of Mahomedan Law by Baillie, p.19 and

Akleema Khatoon v. Mohib-ur-Rehman PLD 1963 Dacca 602 ref.
(d) Muhammadan Law ---
----Marriage---Divorce---Shia law---Marriage under Shia law is a holy institution

and can be contracted without witnesses---Such marriage, however, cannot be
dissolved unless in presence of two witnesses of "known probity" in set form of
Arabic words pronounced by the husband.
(e) Muhammadan Law---
----Divorce---Divorce under Sunni law is recognised as valid through single

pronouncement and on a third pronouncement the divorce will become
irrevocable.
Mst. Fehmida Bibi v. Mukhtar Ahmed 'PLD 1972 Lah. 694 and Mst. Maqbool Jan
v. Arshad Hasan PLD 1975 Lah. 147 rel.
(f) Muhammadan Law---
---- Divorce---Delegated power of divorce---Husband being a Shfa had delegated

power to divorce to his wife who was Sunni---Mode of prononucement'of
Talaq---Held, it was not necessary for wife to adopt the modus operandi of
pronouncement of Talaq which could be adopted by the husband while
divorcing the _ wife as she belonged to Sunni sect and had repudiated herself in
the manner the Sunni law provided.
Major Muhammad Hayat Tarrar v. District Collector, Gujranwala 1993 CLC 219
ref.
(g) Muhammadan Law---
----Divorce---Divorce, under Sunni law, becomes effective even though given

under compulsion, so long the man is major and sane, he must be presumed to
know what he is doing and bear its consequences, the repudiation must be
effected either in express words or by implication or by writing its intention.
Major Muhammad Hayat Tarrar v. District Collector, Gujranwala 1993 CLC 219
rel.
(h) Muslim Family Laws Ordinance (VIII of 1961)---
-----S. 7---Divorce---Arbitration Council---Object---Intention of legislature is to

give a final opportunity to the parties for reconciliation after divorce has taken
within period of Iddat---Divorce pronounced and communicated to each other
notwithstanding whether any party appears before the Arbitration Council or
not ipso facto becomes effective after the expiry of ninety days unless revoked
earlier by husband or wife exercising the delegated powers of divorce.
Mst. Fahmida Bibi v. Mukhtar Ahmed PLD 1972 Lah. 694 fol.
Muhammad Taqi v. Councillor/Chairman, Union Council and others 1986 CLC

1808 distinguished.
(1) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 7---Divorce---Delegated power of divorce to wife (Talaq Tafviz)--Provision

of S.7, West Pakistan Family Courts Act, 1964 mutatis mutandis apply to such
exercise of divorce.
(j) Muslim Family Laws Ordinance (VIII of 1961)---

----Ss. 8 & 7---Divorce---Delegated power of divorce to wife by husband--
Delegation of power to divorce in case of a woman will be the same as prescribed
in relation to a man---Provisions of Ss. 7 & 8 of the Muslim Family Laws
Ordinance, 1961 provide the mode of dissolution of marriage by virtue of which
the parties dissolve their marriage by their own act without intervention of the
Court.
(k) Auslim Family Laws Ordinance (VIII of 1961)---
----Ss. 7 & 8---Delegated power of divorce to wife---Exercise of such power--

Principles---When a woman is given Ikhtiar of Talaq Tafviz by her husband and
such stipulation exists in Col. No.18 of Nikahnama the woman can exercise such
power and repudiate herself under the law of her own sect---Wherever a notice
of such delegated power of divorce is given to the Chairman, Arbitration
Council, he is under the bounden duty of law to constitute Council and initiate
proceedings in the same manner and mode as it is a divorce by the husband to
his wife---Chairman, in such circumstances, is strictly guided by the provisions
of Ss.7 & 8 of the Muslim Family Laws Ordinance, 1961 and whenever divorce
becomes effective and final reconciliation fails the Chairman has to deliver a
certificate of divorce becoming effective.
The provisions of Muslim Family Laws Ordinance in respect of delegated power

of divorce are very clear and whenever a woman when she is given Ikhtiar of
Talaq Tafviz by her husband accotding to the provisions of Muslim Family Laws
Ordinance and this stipulation exists in Column No.18 of the Nikahnama the
woman can exercise this power and repudiate herself under the law of her sect.
Meaning thereby if she belongs to Sunni sect, the Sunni law will apply to her
case and if she belongs to Shia or other sect the law peculiar to that sect shall
apply to the person of that sect and whenever a notice of such delegated power
of divorce is given to the Chairman, he is under the bounden duty of law to
constitute Arbitration/Reconciliation Council and initiate proceedings in the
same manner and mode as it is a Talaq by the husband to his wife. He is strictly
guided by the provisions of sections 7 and 8 of the Family Laws Ordinance and
whenever Talaq becomes effective and the final reconciliation fails the Chairman
may deliver a certificate of Talaq becoming effective.
Mst. Zakia Farooq v. Chairman, Union Council and another 1991 CLC 1720; Mst.
Fahmida Bibi v. Mukhtar Ahmed etc. PLD 1972 Lah. 694; Ahmad Nadeem v.
Chairman, Arbitration Council and others 1991 MLD 1198; Syed Ali Nawaz
Gardezi v. Lt.-Gol. Muhammad Yusuf PLD 1963 SC 51; Dr.Razia v. Mushir
Ahmed Pesh Imam and another 1988 CLC 467; Muhammadan Law by Mulla,
Chap. III, S.32; Mst. Manzoor v. Allah Wasaya PLD 1973 BJ 36; Major
Muhammad Hayat Tarrar v. District Collector, Gujranwala and others 1993 CLC
219; Wilson's Anglo-Mahomedan Law, VIth Edn.; Baillie's, Digest of Mahomedan
Law, Book III, Chap. 111, p.19; Mahomedan Law by Tayyabjee; Buffatan Bibi v.
Sh. Abdul Salim AIR 1950 Cal. 304; Akleema Khatoon v. Mohib-ur-Rehman PLD
1963 Dacca 602; Mst. Maqbool Jan v. Arshad Hasan PLD 1975 Lah. 147 and
Muhammad Taqi v. Councillor/Chairman, Union Council and others 1986 CLC
1808 ref.
A.K. Dogar for Petitioner. Aurangzeb Mirza for Respondent No.2
Date of hearing: 8th December, 1994.
JUDGMENT
The brief facts of the instant writ petition are that the petitioner was married with
respondent No.2 on 1-5-1992 and according to his contention this marriage was
solemnised according to Shia Law and the respondent No.2 lived with the
petitioner as wife till 9-3-1994, when she left the house of the petitioner and went
to her parents and thereafter on 28-3-1994 the respondent served a notice of
divorce under sections 7 and 8 of the Muslim Family Laws Ordinance, 1961 upon
the present petitioner through "Talaq Tafviz" stating therein that it was not
possible for her to live with the petitioner as wife and husband. The present
petitioner sent reply of the said notice on 11-4-1994 stating therein that he had
not delegated the powers of divorce to respondent No.2. On 20-4-1994 the
petitioner sent notice to the respondent No.2 asking her to come and live with
the petitioner. On 29-5-1994 the present petitioner sent a letter to the respondent
No.l (The Chairman, Arbitration and Reconciliation Council, Lahore Cantonment
Board, Ward No.7, Lahore Cantt.), raising objection that he had no power to
issue a certificate and that clause 18 of the Nikahnama had been forged by the
respondent No.2. Thereafter, the present petitioner filed a suit for restitution of
conjugal rights against respondent No.2, on 31-5-1994 which was hotly contested
by the respondent No.2. The respondent No-2 also filed a suit for recovery of
dower amounting to Rs.50,000 which is also pending adjudication before the
same Judge, Family Court.
2. The grievance of the present petitioner is that the respondent No.l Chairman,
Arbitration and Reconciliation Council, Lahore Cantonment Board, Ward No.7,
Lahore Cantt. has passed the impugned order dated 2-7-1994 behind the back of
the petitioner; the impugned order was beyond the jurisdiction of the respondent
No.l, as according to the arguments of the learned counsel for the petitioner, the
respondent No.l had no authority to decide the question of legality of Talaq or to
issue a certificate that the divorce had become effective in view of the law laid
down in Mst. Zakia Farooq v. Chairman, Union Council and another 1991 CLC
1720, Mst. Fehmida Bibi v. Mukhtar Ahmed etc. PLD 1972 Lahore 694 and
Ahmad Nadeem v. Chairman, Arbitration Council and others 1991 MLD 1198
(Lahore). He has further submitted that the Chairman, Arbitration Council, ipso
facto was ceased of the authority or jurisdiction to enter into the question of
validity of Talaq or application of right of pronouncement of Talaq. He further
contended that since the petitioner was a Shia Muslim and he was married
according to Shia Law wherein it is provided that a divorce can be pronounced
orally in presence of two witnesses of "known probity" in a set form of Arabic
words as is laid down by the Hon'ble Supreme Court in Syed Ali Nawaz Gardezi
v. Lt: Col. Muhammad Yusuf PLD 1963 SC 51. Hence according to the learned
counsel for the petitioner the Talaq pronounced by respondent No.2 is violative
of the principles of Shia Law and carries no effect as is held in Dr. Razia v.
Mushir Ahmed Pesh Imam and another 1988 CLC 467. The Chairman has the
only power of reconciliation. He further argued that the application of power of
divorce could only be decided by a Court of competent forum and not the
Chairman.
3. Learned counsel for the respondent No.2 has vehemently contested all the
points raised by learned counsel for the petitioner. He has produced a photo
copy of Nikahnama and also a certified copy of the registered Nikahnama 2-5-
1992 of the petitioner and the respondent wherein in Column No.18.of the said
Nikahnama against the questionnaire whether the husband has given authority.
(Akhtiar or Tafweez-e-Talaq) to the wife and if yes under what contingencies.
Against this column it is written "yes" ( (J k ). According to the Muslim Family
Laws of Pakistan (0 LLA I,~ (,sL~ lr. ) he has also refuted the stand taken by the
learned counsel Tor the petitioner that the respondent No.2 was not delegated
any power of divorce. -He has also submitted that infact the respondent No.2 did
not belong to Shia faith; she was a Sunni and the marriage was solemnized
according to the Nikahnama prescribed by the provisions of Family Laws
Ordinance, 1961. According to Sunni rites the witnesses are deposed against
Column No.ll while according to Shia marriage no witnesses are required. He
has further submitted that since the respondent did not belong to Shia faith she
had pronounced Talaq according to her personal law which is Sunni law and she
rightly sent a notice to the petitioner as prescribed by the provisions of section 7
of the Family Laws Ordinance, 1961. He has strongly contradicted the plea taken
by the learned counsel for the petitioner that the divorce will be Pronounced
according to Shia Law. He has submitted that since the respondent is Sunni
Muslim she will not be subject to Shia law as held by Section 32 of Chapter III of
Mahomedan Law under the caption of "Mahomedan Sect". She has rightly
exercised her right of repudiation duly given by the husband in the registered
Nikahnama, dated 1-5-1992 and the Chairman, Arbitration/Reconciliation
Council has rightly initiated the proceedings according to the provisions of
sections 7 and 8 of the Family Laws Ordinance, 1961 and upon failure of the
reconciliation the respondent No.l has issued certificate according to the powers
available to him under the provisions of the said Act. He has relied on Mst.
Manzoor v. Allah Wasaya PLD 1973 BJ 36 and Major Muhammad Hayat Tarrar
v. District Collector, Gujranwala and others 1993 CLC 219 (Lahore). Learned
counsel for the respondent reiterated that- in case of respondent No.2, who is of
Sunni faith, the Shia Law will not prevail. In view of the settled principle of law
regarding a Sunni female in respect of her personal right the documents which
were made available and present before the Chairman Reconciliation were
sufficient to prove that the respondent No.2 was duly delegated with the power
of "Talaq Tafweez" and she had exercised that power and repudiated herself.
4. ~ I have heard at length both the parties and have perused the documents
available on record. The points for consideration by this Court are:---
(i) Whether the respondent No.2 was possessed with the power of Talaq
Tafweez duly delegated by the petitioner;
(ii) Whether without its formal pronouncement the respondent No.2 through a
notice could repudiate herself;
(iii) Whether the Chairman, Union Council could make this divorce effective in
the similar manner and mode if it was pronounced by the petitioner; and
(iv) When one of the spouses to the marital tie belongs to Sunni sect and not
belonging to the Shia faith what will be the mode of divorce in respect of Talaq.
5. The Holy Qur'an being a Cole itself provides:
It is a simple Deen, and anybody who makes it complicated will stand

ostracized. The provisions of Islam in respect of divorce are very simple and
balanced. The God has fixed the limits and no one can transgress over it.
Under Mohamedan Law husband enjoys an absolute power of divorce to his

wife. He may delegate this power to his wife by way of a contract. As a man in
person repudiates his wife so he may commit the power of repudiation to his
wife to repudiate herself. This power may be conferred on a third party as well.]
(Wilson Anglo Mahomedan Law, Edn. VI and Baillie Digest of Mohamedan Law,
BOOKII, Chapter III).
When such power of repudiation is conferred on the wife or some third person
the divorce will take effect, if the power so conferred is exercised. Mohamedan
Law by Tayyabjee and Buffatan Bibi v. Sh. Abdul Salim AIR 1950 Calcutta 304.
This power can be a conditional power or rests upon the happening of some
contingencies. It can also be unconditional. When it rests upon the happening of
certain contingencies then the wife should exercise the delegated power of
divorcing herself when the condition entitling her to exercise that power is
fulfilled. But if that power .is unconditional she may exercise the same when and
where required. In both these circumstances a formal pronouncement of Talaq is
necessary.
Section 7 of the Muslim Family Laws Ordinance, 1961 provides as under:---

"7, `Talao'.--(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
notice in writing of his having done so, and shall supply a copy thereof to the
wife:
(2) ......... ... ..
(3)
(4) Within thirty days of the receipt of notice under subsection (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 all steps
necessary to bring about such reconciliation.
(5) .... .. ...
(6) ... ... .. ....... ....... ... ... ...
The provisions of section 8 of the Ordinance may also be read as under:---
"8. Dissolution of marriage otherwise than by `Talaa'.--Where the right to divorce

has been duly delegated to the wife and she wishes to exercise that right, or
whereby. any of the parties to a marriage wishes to dissolve the marriage
otherwise than by Talaq, the provisions of section 7 shall, mutatis mutandis and
so far as applicable, apply."
The words of section 7(1) "after the pronouncement of Talaq in any form
whatsoever," will denote also the divorce in writing which has been recognized
by the Muslim jurists. In the present case the respondent No.2 has produced
certified copy of the Nikahnama carrying a stipulation against Column No.18
about the delegation of Talaq Tawfeez. It is written over there "yes" ( U ~ ) and
further it is written "according to the Muslim Family Laws Ordinance, 1961,"
meaning thereby according to section 8 of the same Ordinance. A careful perusal
of the registered Nikahnama would show that no condition or contingency exist
over there. Meaning thereby the delegation of Talaq Tawfeez by the petitioner
was unconditional. The right of divorce primarily belongs to the husband. The
only factor which is to be seen is whether the petitioner has delegated this power
of divorce absolute or unconditional to his wife or a third person. In the present
case the entries against Column No.18 of the Nikahnama are very clear and the
respondent No.2 has exercised that delegated power of divorce i.e. (Talaq
Tawfeez) and has repudiated herself through a notice dated 28-3-1994 duly
served upon the petitioner according to sections 7 and 8 of Muslim Family Laws
Ordinance, 1961 stating therein that by virtue of Talaq Tawfeez as it is not
possible for her to live with the petitioner as wife and husband she repudiates
herself.
According to Mahomedan Law once a person to whom the power to divorce is

delegated, pronounces divorce the power so delegated becomes irrevocable and
this will operate as Talaq of the wife by the husband. (Mahomedan Law by Mulla
and Baillie, page 19, Akleema Khatoon v. Mohib-ur-Rehman PLD 1963 Dacca
602. Thus in view of the above Islamic Laws the notice sent to the petitioner by
the respondent will be considered as a formal pronouncement of Talaq by the
wife to repudiate herself in exercise of the powers given to her.
6. The second point that the marriage was allegedly solemnised according to Shia
Law is strongly refuted by the respondent No.2. The marriage under Shia law is
a holy institution, it may be contracted according to Shia law without witnesses
but it cannot be dissolved unless in presence of two witnesses of "known
probity" in set form of Arabic words pronounced by the husband but in the
present case both the spouses do not belong to Shia sect. The respondent No.2
belongs to Sunni sect.
The provisions of section 30 of Muhammadan Law provides:--

"30. Each sect governed by its law.---The Mahomedan law applicable to
each sect or sub-sect is to prevail as to litigants of that sect or sub-sect.
The Sunni law will therefore apply to Sunnis, and the Shia law to Shias, and the
law peculiar to each sub-sect will apply to persons belonging to that sub-sect."
(Reliance on Deedar Hossein v. Zuhoor-oon-Nisa (1841) 2 M.IA. 441, 477).
Under Sunni law divorce is recognised as valid through single pronouncement

and on a third pronouncement the dirvorce will become irrevocable. Reliance on
Mst. Fahmida Bibi v. Mukhtar Ahmad (PLD 1972 Lahore 694) and Mst. Maqbool
Jan v. Arshad Hassan (PLD 1975 Lahore 147).
7. The contention of the learned counsel that the petitioner being a Shia has
delegated this power of Talaq Tafweez to the wife, the mode of pronouncement
of talaq shall be according to Shia Law carries no substance. In case of express
delegation as is the case of the respondent No.2 the husband has no power to
recall the authority once entrusted to his wife.
8. Under the Hanfi law two witnesses are required for contracting marriage but
while dissolving the marriage through a divorce it becomes effective even
though given under compulsion, so long the man is major and sane, he must be
presumed to know what he is doing and bear its consequences the repudiation
must be affected either in express words or by implication or by writing
its.intention. Reliance on Major Muhammad Hayat Tarar v. District Collector,
Gujranwala (1993 CLC 219 (Lahore).
The notice of repudiation is enough to convey to the petitioner that there was no
possibility of re-union of the parties and the respondent No.2 while exercising
her right of repudiation divorced herself. It was not necessary for her ,to adopt
the modus operandi of pronouncement of talaq which could be adopted by the
petitioner while divorcing the respondent as she belongs to Sunni sect and had
repudiated herself in the manner the Sunni law provides.
9. The last point of the learned counsel for the petitioner is that the Chairman
was ceased of the jurisdiction to make the divorce effective in the present case, in
the manner and mode which is generally adopted by the parties to a divorce. The
facts and circumstances in the case refer Muhammad Taqi v. Council/Chairman,
Union Council etc. (1986 CLC 1808 (Karachi) are entirely different. In this case,
the Chairman instead of confirming the divorce directed the parties to get their
dispute settled from the Civil Court. It was held that the direction was illegal as
the divorce duly communicated to the wife and the Chairman ipso facto becomes
effective after the expiry of ninety days.
10. The Arbitration Council is constituted by the Chairman consisting of one

representative from each side. Although the intention of legislature is to give a
final opportunity to the parties for reconciliation after divorce has taken place
between the parties within the period of Iddat as the divorce once pronounced
and communicated to each other notwithstanding the conduct of the parties
becomes effective after the expiry of ninety days unless it is revoked earlier by
the husband or wife exercising the delegated power of divorce as is held in Mst.
Fahmida Bibi v. Mukhtar Ahmad (PLD 1972 Lahore 694). The contention of the
learned counsel for the petitioner that he was condemned unheard is not well-
founded. From the impugned order, it is clear that the petitioner appointed his
representative who later on absented himself. The law is very clear on the subject
of divorce pronounced and communicated to. each other notwithstanding
whether any party appears before the Chairman or not ipso facto becomes
effective after the expiry of ninety days unless revoked earlier.
11. Section 7 of the Family Courts Act is very clear in cases of delegated powers
of divorce to the wife (Talaq Tafweez) or to a third person. It provides that the
provisions of this section mutatis mutandis apply to such exercise of divorce.
12. I have gone through the impugned order passed by the Chairman,
Arbitration/Reconciliation Council. I have seen that the Chairman had not
exceeded his jurisdiction while passing the impugned order. He has simply
narrated that the reconciliation between the parties had failed and the
respondent who was delegated power of Talaq Tafweez has repudiated herself
and this divorce has become effective after the expiry of ninety days. The
delegation of power of Talaq in case of a woman will be the same as prescribed
in relation to a man. Sections 7 and 8 provide the mode of dissolution by virtue
of which the parties dissolved their marriages by their own act without
intervention of the Court.
13. The provisions of family Laws Ordinance in respect of delegated power of

divorce are very clear and whenever a woman when she is given Ikhtiar of Talaq
Tafweez by her. husband according to the provisions of Family Laws Ordinance
and this stipulation exists in Column No.18 of the Nikahnama the woman can
exercise this power and repudiate herself under the law of her sect meaning
thereby if she belongs to Sunni sect, the Sunni law will apply to her case and if
she belongs to Shia or other sect the law peculiar to that sect shall apply to the
person of that sect and whenever a notice of such delegated power of divorce is
given to the Chairman he is under the bounden duty of law to constitute
Arbitration/Reconciliation Council and initiate proceedings in the same manner
and mode as it is a Talaq by the husband to his wife. He is strictly guided by the
provisions of sections 7 and 8 of the Family Laws Ordinance and whenever Talaq
becomes effective and the final reconciliation fails the Chairman may deliver a
certificate of Talaq becoming effective:
14. 1 see no substance in the present petition which is dismissed with no order as
to costs.
M.BA./Q-34/Q Petition
dismissed.
P L D 2004 Lahore 77
Before Maulvi Anwarul Haq, J
Mst. NAZIR FATIMA ---Petitioner
Versus
NAZIM UNION COUNCIL, WARD NO.5, DHOKE HASSU, RAWALPINDI and

another---Respondents
Writ Petition No.1862 of 2003, heard on 10th November, 2003.
West Pakistan Family Courts Act (XXXV of 1964)-----
----S. 5 & Sched.---Muslim Family. Laws Ordinance (VIII of 1961), Ss.7(3) & 8---
Dissolution of marriage---Delegation of right to divorce by husband to wife---
Exercise of said right---One of the conditions of the marriage between parties
was that husband had delegated the right to divorce wife and entry to that effect
was made in Column No.18 of Nikahnama---Wife in exercise of said right
pronounced divorce upon herself for her husband and a notice was sent to
Nazim Union Council concerned ---Nazim had intimated wife that husband
being not ready to pronounce divorce, wife could approach the Court as he could
not grant Khula and Nazim sent the case to the Family Court ---Nazim was
oblivious of legal position as right of divorce could be lawfully delegated by
husband to wife and that had happened in the present case and notice was sent
by wife in compliance with the terms of Ss.7 & 8 of Muslim Family Laws
Ordinance, 1961---Ninety days prescribed period having expired after receipt of
notice issued by wife and re-conciliation being not possible between the parties,
law as prescribed in Ss.7(3) & 8 of Muslim Family Laws Ordinance, 1961 would
have its course ---Nazim would issue requisite document regarding receipt of
notice and failure of reconciliation within prescribed time.
Waqarul Haq Sheikh for Petitioner.
Tanvir Iqbal, A.A.-G. with Khalid Mahmood, Nazim for Respondent No. 1.
Date of hearing: 10th November, 2003.
JUDGMENT
The petitioner Mst. Nazir Fatima was married to Muhammad Shahid respondent
No.2. The Nikahnama was duly drawn up in the prescribed forms. The marriage
was thus performed on 11-4-2001. One of the conditions of the marriage was that
the husband i.e. respondent No.2 delegated the right to divorce to Mst. Nazir
Fatima petitioner. Entry was duly made in Column No.18 of the Nikahnama. In
the exercise of the said right, the petitioner pronounced divorce upon herself for
the respondent No.2, her husband on 4-1-2003. A notice was sent to the
respondent No. 1 in compliance with the law. Now the respondent No.1 had
intimated the petitioner on 12-5-2003 (Annex. 'A') that since the husband is not
ready to pronounce divorce, the petitioner may approach the Court as he cannot
grant Khula'. He accordingly sent the case to the Family Court.
2. In response to the notices issued, learned A.A.-G. has put in appearance

alongwith the Nazim respondent No. 1. When confronted he said that the
husband of the petitioner-lady had appeared before him and had not denied the
delegation of the said authority. However, on his own understandingly he
opined that divorce cannot be pronounced by the petitioner in any manner.
3. It is but obvious that the respondent No. 1 is oblivious of the legal position.
The right of divorce can be lawfully delegated by the respondent husband to the
wife and this is what that has happened in this case as I would be evident from
Column No. 18 of the Nikahnama. The notice was sent by the petitioner-lady in
compliance with the terms of section 8 read with section 7 of the Muslim Family
Laws Ordinance, 1961.
4. Now according to Nazim respondent No.1, the time prescribed by law i.e. 90
days had expired after the receipt of the notice issued by the petitioner-lady and
re-conciliation is not possible between the parties. This being so, the, law as
prescribed in section 8 read with section 7(3) of the Family Laws Ordinance,
1961, shall have its course.
5. The writ petition is allowed. The impugned order dated 12-5-2003 of the
respondent No.1, Union Council No.5. Dhoke Hassu, Rawalpindi, is set aside
being without lawful authority. He undertakes that he will issue the requisite
documents regarding the receipt of the notice and failure of re-conciliation
within the prescribed time. No order as to costs.
H.B.T./N-372/L Petition allowed.

Delegated Divorce

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Delegated Divorce

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2006 Y L R 335

B efore Muhammad Akhtar Shabbir, J

ISHTIAQ UR RASHID and another---Respondents

Writ Petition No. 2179 of 2004, heard on 22nd July, 2005.

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----Ss. 7 & 8---Talaq-i-Tafweez---Kinds---Power to give divorce, though belonged to

(b) Muslim Family Laws Ordinance (VIII of 1961)---

----Ss. 7 & 8---Talaq---Right of Talaq-i-Tafweez, exercise of---Talaq once pronounced,

(c) Muslim Family Laws Ordinance (VIII of 1961)---

----Ss. 7 & 8---Authority of Chairman Arbitration Council---Chairman Arbitration

Nahida Mehboob Ellahi for Petitioner.

Respondent No.1 ex parte.

Raja Saeed Akram, A.A.-G. for Respondent No.2.

Date of hearing: 22nd July, 2005.

MUHAMMAD AKHTAR SHABBIR, J.---Facts constituting to the filing of present

5. In "Fatava Rizvia" Volume-12, it is mentioned that:-

7. `Talaq' once pronounced would be effective after expiry of 90 days unless it is

8. Section 7 of the Muslim Family Laws Ordinance, 1961, provided that:-

Section 8 of the Act further contemplated that:-

9. Chairman Arbitration Council had no authority to adjudicate upon validity or

H.B.T./M-1252/L Petition accepted.

Before Ch. Ijaz Ahmad, J

T.A. No.503-C of 2004, decided on 6th September, 2005.

Civil Procedure Code (V of 1908)---

Ms. Hifza Aziz for Petitioner.

Nemo for Respondent.

(ii) Through the agency of Senior Civil Judge concerned;

(iii) Through registered A.D.

H.B.T./S-449/L Application allowed.

Before Maulvi Anwarul Haq, J

Mst. NAZIR FATIMA ---Petitioner

NAZIM UNION COUNCIL, WARD NO.5, DHOKE HASSU, RAWALPINDI and

Writ Petition No.1862 of 2003, heard on 10th November, 2003.

West Pakistan Family Courts Act (XXXV of 1964)-----

Waqarul Haq Sheikh for Petitioner.

Date of hearing: 10th November, 2003.

H.B.T./N-372/L Petition allowed.

Before Mumtaz Ali Mirza, J

CHAIRMAN, ARBITRATION COUNCIL and others---Respondents

Writ Petition No. 1469 of 1999, heard on 22nd September, 1999.

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----Ss. 7 & 8---Divorce---Delegated power of divorce---Scope---Only that

(b) Muslim Family Laws Ordinance (VIII of 1961)---

----Ss. 7 & 8---Constitution of Pakistan (1973), Art. 199---Constitutional

Tariq Aziz for Petitioner.

Date of hearing: 22nd September, 1999.

"that the jurisdiction of a Court or a Tribunal is conferred by law and no Court

(iv) Dr. Syed Qamber Murtaza Bokhari v. Chairman, Arbitration and

(v) Mst. Shama Farooq v. Chairman, Union Committee, Ward No.4,

5. Mr. Afnan Karim Kundi, Advocate appearing on behalf of respondent

7. As a natural corollary to the aforesaid discussion, I hold that the order,

Q.M.H./M.A.K./A-156/L Petition allowed.

Before Muhammad Idris, J

TAHAZZAD HOSSAIN SIKDAR-Appellant

HOSSNEARA BEGUM AND OTHERS-Respondents

(a) Civil Procedure Code (V of 1908), S. 100-Second appeal-Finding of fact based on

(b) Muhammadan Law-Divorce -Talak-i-Tafweez-Delegated right of divorce for

Mirjan Ali v. Mst. Maimuna Bibi 53 C N W 302 dissented from.

Mulla's Muhammadan Law, 14th Edn., p. 169 re'.

Dr. M. A. Aleem with Khondkar Mahbubuddin Ahmad for Respondents.

"When anything is stipulated for in a contract of marriage which is contrary to

"An agreement made, whether before or after marriage, by which it is provided

Leave under clause 15 of the Letters Patent prayed for is refused.