1985 PLP 2855 (CLC)

Through this constitutional Petition Caroline Rehman petitioner wants this Court to declare that the respondent's refusal to exercise jurisdiction in the matter of notice of Talaq sent by the petitioner under section 7 of the Muslim Family Ordinance, 1961 to be without lawful authority and of no legal effect and also to declare that the Talaq between the petitioner and her husband, has become effective.

2. The facts giving rise to this petition briefly are that Caroline Rehman petitioner was married to Atiq-ur-Rehman on 10-1-1980. The petitioner is Christian. Atiq-ur-Rehman, husband is a Mulsim. The marriage was solemnised by the Senior Marriage Registrar, Lahore, and a certificate under section 79 of the Christian Marriage Act, 1872 was issued. On 8-7-1984 Atiq-ur-Rehman/husband specifically delegated right of divorce to his wife the petitioner vide Annexure 'A'. This was done in exercise of the powers granted to a husband under Muslim Law. Thereafter the petitioner exercising this right, divorced herself on behalf of the husband and sent the notice of pronouncement of Talaq to the Chairman, Union Council, Ward No.36, Lahore. Respondent No.1 who issued notices to the parties for nomination of representatives to the Arbitration Council. The petitioner/wife appeared before the Chairman respondent No.l through her representative but Atiq-ur-Rehman did not respond to the notice. Instead of making Talaq effective the Chairman sought advice from his legal advisor and on the receipt of opinion of the legal advisor, the Chairman refused to take cognizance of the notice under section 7 of the Muslim Family Laws Ordinance, 1961 sent by the petitioner and informed her of this order on 22-1-1985, hence this petition.

3. Miss Hina Jilani, the learned counsel for the petitioner contended that the impugned order of respondent No.1 is quite illegal and has been passed without lawful authority in asmuchas the Muslim Laws Ordinance VIII was fully applicable to Atiq-ur-Rehman/husband; that the husband having delegated the right of divorce to the petitioner in accordance with Muslim Personal Law therefore, the petitioner/wife by sending notice of the pronouncement of Talaq by her, was doing so on behalf of the husband who was very much governed by the Muslim Personal Law. The respondent is being proceeded against ex parte vide order dated 13-4-1985.

4. I have considered the arguments advanced by the learned counsel for the petitioner with care. I feel persuaded to agree with her. I find that Atiq-ur-Rehman husband being a Muslim is governed by his own personal law in the matter of divorce; that on 8-7-1984 he had specifically delegated the right of divorce to his wife the petitioner; that thereafter the petitioner divorced herself in exercise of the delegated right of divorce and that she did not do so in her own right but only on behalf of her Muslim husband to whom Muslim Family Laws Ordinance was very much applicable. For all these reasons I am of the view that the impugned order of refusal of Chairman, Union Council respondent No. 1 to take cognizance of the notice of Talaq sent by the petitioner, was quite illegal and without lawful authority. The matter is sent back, to him for proceeding in accordance with law.

5. As for the prayer for declaration by this Court that the Talaq had become effective, I am afraid that the same cannot be granted in exercise of the constitutional jurisdiction of this Court because that will tantamount to a declaratory decree. Furthermore, the husband Atiq-ur-Rehman having not been impleaded as respondent, no adverse declaration can be made in his absence. H.B.T. Order accordingly.