1988 PLP 467 (CLC)

4. Mr. Kanwar Mukhtar Ahmed for the respondent No.2 submitted that the Chairman was entitled to consider the contentions raised by the authority before him and, therefore, what the respondent No.2 did was in the performance of his duty to bring about a reconciliation between the parties. He elaborated after all if the validity of marriage was questioned by the respondent No.2 and the validity of delegation of Talaq was also questioned before the respondent No.l then it was his duty to take the same into consideration and not to confirm the Talaq if the contentions of the parties had any force.

5. The relevant provisions of sections 7 and 8 of the Muslim Family Laws Ordinance reads as under:‑ "

7. Talaq.‑‑(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) Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both. (3) Save as provided in subsection (5) Talaq revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman. (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) If the wife be pregnant at the time Talaq is pronounced, Talaq shall not be effective until the period mentioned in subsection (3) or the pregnancy, whichever is later, ends. (6) Nothing shall debar a wife whose marriage has been terminated by Talaq effective under this section from re‑marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective." "

8. Dissolution of marriage otherwise than by Talaq.‑‑ 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."

6. It appears to me that the contentions of the petitioner's counsel have some force. The Chairman of the Arbitration Council is empowered merely to bring about the reconciliation between the parties to a marriage and he has no business of going into the niceties of the questions raised before him in respect of the validity of the marriage or the validity of Talaq or the delegation of the right of pronouncement of Talaq. Therefore, the observation made by the respondent N0.1 in respect of marital status of the petitioner with respondent No.2 or in respect of the delegation of Talaq were not competently made by him. The maximum that the respondent No.l could do in the matter was to record the contentions of both the parties before him and then merely state whether he had been able to bring about a reconciliation between the parties or whether the reconciliation efforts have failed. In case the respondent No.2 wanted to avoid the effect of section 7 or to challenge the authority of Talaq Tafwiz, then he should have obtained a declaration to the effect from a competent Court but not before the respondent No.l .

7. From the proceedings of the respondent No.l it does not appear to me that he has made any effort of reconciliation between the parties. But he was merely trying to sort out the objections raised by the respondent No.2. I would venture to say that the Chairman did not perform his duty in accordance with law.

8. In P L D 1972 Lah. 644, Sardar Muhammad Iqbal, J. as he then was, has interpreted section 7 of Muslim Family Laws Ordinance, 1961 and has observed that the only thing the Chairman can do is to record that a conciliation has failed. There is no other function which a Chairman is competent to perform. It was further observed in that case that there is no provision in the Ordinance or the rules requiring the Chairman to give a decision or issue a certificate to make the divorce effective. With respect I am in general agreement with the view expressed in the above case except that I would add that the Chairman can also record if the conciliation efforts have succeeded and the person who had pronounced the Talaq has agreed to revoke the same. I find that in this case before me there was no serious efforts made by the respondent No.l in respect of the reconciliation between the parties, and when I say reconciliation, it means bringing the two parties at variance to a point where they come to an understanding that they can live together. If the respondent No.l had made any serious effort in this respect then it would have been much more useful to all, but he did not do so and did not apply his mind or efforts towards the reconciliation of the parties. In fact what appears to me is that the parties before him were absolutely at war with each other and there did not appear to be any meeting point between them and, therefore, in these circumstances only thing Chairman could do was to record the result of the failure of reconciliation. Therefore, the order of 27th March, 1984 passed by the respondent No.l was without lawful authority and of no legal effect. Therefore, the petition succeeds to that extent. H . B . T . / R‑39/ K Petition allowed.