' 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 unIslamic. 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:-- {{URDU TEXT}}}
5. 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. A 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 Mu'rtaza Bokhari v. Mst.
Zainab Bashir (1995 CLC 1574).
6.
8. Section 7 of the Muslim Family Laws Ordinance, 1961, provided that:--
7. "(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. 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 "falaq' 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-iTafweez" 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.