P L D 2011 Lahore 265 (PLP)

RAUF AHMAD SHEIKH, J.

The petitioner has assailed the vires and legality of notices issued by respondent No.2 under section 7 of the Muslim Family Laws Ordinance. 1961 and the impugned order for initiation of proceedings of confirmation of divorce given to the petitioner by respondent No.1, through exercise of the right of divorce delegated to her by contending that the same are illegal, against the provisions of Muslim Family Laws Ordinance, 1961 (Ordinance No.VIII of 1961); without authority and as such are of no legal effect/consequence.

2. The brief facts as emerge on perusal of the record are that the petitioner and respondent No.1 entered into the contract of ' Nikah' as per 'Nikahnama' registered at Rawalpindi on dated 14-8-2000, where-under the petitioner had delegated the right of divorce to respondent No.1 respondent No.1 by exercising her right, executed divorce deed dated 5-11-2010, whereafter the proceedings commenced before the Chairman Arbitration Council and the impugned notices were accordingly issued to the petitioner.

3. The learned counsel for the petitioner has contended that under section 8 of the Muslim Family Laws Ordinance, 1961, the pronouncement of 'Talaq' must be made by the wife while exercising her delegated right of divorce otherwise the Arbitration Council cannot take any step towards reconciliation proceedings and also cannot declare that the divorce has become effective. In support of the contentions raised, he has placed reliance on Dr. Qambar Murtaza Bokhari v. Mst. Zainab Bashir (PLD 1995 Lahore 187). It is further urged that without formal pronouncement of 'Talaq' no action whatsoever could have been taken and as such all proceedings conducted before respondent No.2 are void ab initio. It is further contended that previously respondent No.1 had given a notice of 'Talaq' through divorce deed dated 26-11-2004 but then the compromise had taken place and the proceedings were held in abeyance so the right to divorce could have not been exercised for the second time and as such the divorce deed dated 5-11-2010 has no value in the eyes of law. It has then been urged that the divorce deed dated 5-11-2010 does not amount to pronouncement of 'Talaq' because 'Talaq' and 'divorce' are not synonymous and as such the whole proceedings before respondent No.2 are vitiated.

4. On the other band the learned counsel for respondent No.1 has contended that she has exercised the right of divorce delegated through 'Nikahnama' with her free consent and had given an intimation of the same to the Arbitration Council and the petitioner by sending them the copies of divorce deed dated 5-11-2010. It is thus urged that no illegality has been committed and now the matter is pending with respondent No.2 and if no reconciliation takes place, it would automatically become effective after expiry of period of 90 days of the receipt of notice even without formal order in this regard. It is urged that the notice could have not been assailed through constitutional petition. In this respect reliance is placed on Ch. Muhammad Javed V. The Chairman, Union Committee (Arbitration Council), Lahore Cantt. and another (1999 YLR 2399).

5. Admittedly the right of divorce was delegated to respondent No.1 through 'Nikahnama' dated 14-8-2000. This, was unconditional delegation. In case the wife exercises the right delegated to her, the provisions of section 7 of the Muslim Family Laws Ordinance, 1961, apply mutatis mutandis as provided under section 8 of the Ordinance ibid. No formal mode for exercise of the right is prescribed and the only requirement is that a notice in writing must be given to the Chairman about exercise of the right. Admittedly respondent No.1 executed the deed dated 5-11-2010 and transmitted the copies of the same to the petitioner and the Chairman so the pronouncement is duly made by her. The contention of the learned counsel for the petitioner that the divorce is not 'Talaq' so the execution of divorce deed does not amount to pronouncement of 'Talaq' is absolutely misconceived. The divorce means dissolution of marriage (Talaq) and also separation. Respondent No.1 has exercised the right, which was unconditionally delegated to her in the ' Nikahnama'. No formal order to give effectiveness to it is required rather in view of section 7(3) of the Muslim Family Laws Ordinance, 1961, if not revoked, it will become effective 'after expiry of 90 days of its delivery to respondent No.2. The contention that the similar notice was given in 2004 and a compromise had taken place in regard thereto and the proceedings were postponed so the second notice could have not been issued is also ill-founded because admittedly after the service of notice in 2004, the parties joined hands and started living together so the notice stood revoked automatically and the said proceedings came to an end.

6. For the reasons supra, the writ petition is without merits and the same is hereby dismissed. A.R.K./K-7/L Petition dismisse