' SYED INTIKHAB HUSSAIN SHAH, J.---Through this single judgment the above mentioned writ petition and Civil Revision are being disposed of, which have arisen out of the same controversy.
2. The facts forming background of this constitutional petition and civil revision are that the petitioner Ali Abbas Khan was married to respondent No,1 Mst. Palwasha Khan on 26-12-2006 at Islamabad according to the Muslim Rites. After marriage they have been living together happily for sometime, however some serious disputes arose between the two and consequently respondent No,1 started living with her parents. The petitioner tried his level best to reconciliate and convince her to join him but to no avail. Respondent No,1 sent a divorce deed dated 6-6-2008 on the basis of purported exercise of right of divorce allegedly delegated to her by the petitioner endorsed in column No,18 of the Nikahnama. She also sent copy of divorce deed to Chairman Arbitration Councils A along with notice under section 8 of the Muslim Family Laws Ordinance for constitution of the Arbitration Council. It is alleged by the petitioner that he never gave any right of divorce to respondent No,1 nor any such power were endorsed at the time of Nikah. The entries in column Nos.17 and 18 were subsequently endorsed by some other person, however the said entries never constitute right of Talaq-e-Tafweez. The petitioner filed a suit for Declaration and Permanent Injunction in Civil Court, Islamabad, but the plaint of suit was rejected vide order dated 16-7-2008.
The appeal filed by the petitioner also did not find favour. It is added that impugned order dated 16-12-2008 rendered by Chairman Arbitration Council is against the law and without authority, as the Shary Haqooq does not mean that the petitioner has B delegated the right of divorce to.
Respondent No, 1 . The certificate of effectiveness of divorce was issued without any lawful authority. It is further alleged that judgment the decree dated 16-7-2008 of trial Court and 13-12- 2008 by the Appellate Court is against law and facts. The averments of the plaint do not constitute a mischief of Order VII, Rule 11, C.P.C. The learned trial Court as well as Appellate Court have not exercised their jurisdiction which were vested in them, hence the present writ and revision petition.
3. Respondent No,1 Mst. Palwasha Khan opposed the writ and civil revision with full vehemence.
Respondents ,Nos.2 and 3 of writ petition have submitted their joint para-wise comments.
According to them writ petition was not competent. Right of divorce was delegated upon respondent No,1, who in exercise of that power has divorced upon her. The petitioner should have filed suit for Jactitation of marriage, if he considers himself to be aggrieved of the decisions of both the learned Courts below. It is added that petition is hit by Order II Rule II and sections 11 and 10 of C.P.C.
4. Learned counsel for the petitioner has argued that no power of Talaq-eTafweez was delegated to respondent No,1 by the petitioner and the words endorsed in column No,18 were added subsequently. If the said words are considered to be correct, even then, the same do not constitute the right of Talaq-e-Tafweez. It is next contended that the impugned order passed by Chairman Arbitration Council is without jurisdiction, therefore, certificate of effectiveness of divorce is void and illegal. It is also contended that the judgment and decree of both the Courts below are not sustainable in law.
5. Conversely, learned counsel for respondent No,1 has argued that she has rightly exercised the power of Talaq-eTafweez given to her by the petitioner in C column No,18 of the Nikahnama and the Chairman Arbitration Council rightly issued certificate of effectiveness of Talaq. It is added that plaint of suit and appeal was rightly rejected in accordance with law.
6. Arguments heard, record perused.
7. Before proceeding further it would be quite advantageous to look into the kinds of Talaq and procedure to execute the same in Islam and Muslim Family Laws Ordinance as well. In Islam a marriage can be dissolved in any of the following ways:--
(i) by the husband at his will without the intervention of a Court;
(ii) by mutual consent of the husband and wife, without the intervention of a Court and;
(iii) by a judicial decree in the suit of the husband of wife. The wife cannot divorce herself from her husband without his consent, except under a contract whether made before or after marriage, but she may, in some cases obtain a divorce by judicial decree.
8. Section 7 of the Muslim Family Laws Ordinance, 1961 regulates the procedure as to pronouncement of Talaq, which provides 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 notice in writing of this 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-ibid further provides that;
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 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.
9. Under Muhammadan law a Muslim husband enjoys unfettered power to pronounce Talaq to his wife. It is also established principle of Islamic Jurisprudence that husband may delegate this power to his wife or to a third person by way of contract. In this regard para. 305(1) Mulla's Muhammadan Law provides as under:- "305 (1) Delegation of power to divorce. Although the power to give divorce belongs primarily to the husband, he may delegate the powers 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.
' Fatava Rizvi Volume l2 also provides that:- {{URDU TEXT}} ' Para.No, 101 of Majmooa Qawaneen-e- Islami also states as under: {{URDU TEXT}}
10. Undisputedly column No,18 of the Nikahnama deals with the delegation of power by the husband upon a wife to exercise right of divorce if given by the husband i.e, whether husband has given authority (Akhtiar or Tafweez) to the wife and if yes under what contingencies.
11. Now adverting to the present dispute, in the Nikahnama of the parties it has been incorporated against column No,18 The most important and fatal question in this controversy is whether the above said words / sentence endorsed in column No,18 constitute a right upon respondent No,l Mst.
Palwasha Khan to exercise right of divorce or not. This question is not only important for respondent No,l for her future life, but even her second generation, if she marries again. Constitute a right upon respondent No,1 Mst. Palwasha Khan to exercise right of divorce or not. This question is not only important for respondent No,1 for her future life, but even her second generation, if she marries again.
12. In the present case, if it would have been mentioned against column No,18 "yes or no" then the proposition would have been very simple and the right exercised upon the said words could not be questioned, but the words/sentence "( {{URDU TEXT}}" have converted it into a very complicated and alarming situation. It is also a double edged weapon. In this scenario, the intention of the parties is to be gathered from the available record and allied circumstances as well. Since in column No,18 words "( {{URDU TEXT}})" are mentioned, therefore, it is to be determined first that what are the Shari rights of a wedded women. According to para 254 of Mulla's Muhammad Law "a valid marriage confers upon the wife the right of dower, maintenance and residence in her husband's house, imposes on her the obligation to be faithful and obedient to him etc". It follows that in Islam these are the basic rights of a wedded women. The other shari rights of wedded women are those upon which she may seek khula divorce i.e, husband has been sentenced, he has failed to perform marital obligations, the husband was impotent and that he has been insane etc.
13. Sequel of the above discussion is that it is not a shari right of a wedded women to divorce upon herself without specific delegation of such power by the F husband. The learned counsel for respondent No,1 has not been able to prove that a women can divorce upon her as a Shari right.
After given my anxious consideration, I have come to the irresistible conclusion that the words mentioned against column No,18 of Nikahnama do not vest any power upon respondent No,1 to exercise right of Talaqe-Tafweez and thus no power was delegated by the petitioner to respondent No,1 to exercise right of Talaq-e-Tafweez upon her. If such type of words are allowed to be considered as a right of Talaq-e-Tafweez it would mean that whatever is incorporated against column No,18 would be presumed as a right of Talaq-e-Tafweez. Moreover, the petitioner/husband has specifically denied that no such power was given to respondent No,1 at the time of Nikah.
Consequently, the divorce deed was executed without any legal basis by respondent No,1 and thus the same has no value in the eye of law. The impugned order passed by Chairman Arbitration Council is also not in accordance with law and the same is liable to be set aside.
14. The deplorable aspect of this case is that Nikha-Khawan who conducted the Nikah did not perform his job properly and thus pushed the spouses into a critical condition. He by incorporating the evasive entries against column No,18 of Nikahnama has proved himself to be a inefficient official. Further, the Chairman Arbitration Council also did not consider the factual position of this case and issued certificate of effectiveness of Talaq in a mechanical manner notwithstanding that no power of Talaq-e-Tafweez was given to respondent No,1 by the petitioner. It is too sad.
15. The learned counsel for respondent No,1 has heavily relied upon:--
(i) Farah Khan v. Tahir Hamid Khan 1998 M LD 85 Lahore.
(ii) Abdul Haseeb v. Chairman, Arbitration Council and others 2000 CLC 202 Lahore.
(iii) Dr. Syed Qambar Murtaza Bokhari v. Chairman Arbitration and Reconciliation Committee Lahore and others 1995 CLC 1524, Lahore.
16. In case of Farah Khan v. Tahir Hamid Khan, husband (Tahir Hamid Khan) divorced his wife (Farah Khan) and Arbitration Council issued certificate of effectiveness of divorce. Farah Khan challenged the order of Arbitration Council in constitutional petition on the ground that respondent (Tahir Hamid Khan) could not invoke the jurisdiction of Arbitration Council as he had acquitted the citizenship of United States, but the writ petition was dismissed by the honourable High Court. The facts of present case and that of case mentioned supra are distinguishable because in the present case Arbitration Council wrongly interpreted the entries of column No,18 of Nikahnama of the parties and issued certificate of effectiveness of divorce on presumption that respondent No,1 was given power of Talaq-e-Tafweez, but in fact no such power was delegated by the present petitioner. Hence, this citation is not applicable in this case.
17. In case of Abdul Haseeb v. Chairman, Arbitration Council and others mentioned at serial No,II supra, wife by exercising right of Talaq-e-Tafweez sent notice of Talaq. Husband raised objection before the Arbitration Council that he had not given any such power to his wife. The Arbitration Council held inquiry and issued certificate of effectiveness of divorce. Husband assailed the order of Arbitration Council in a writ petition. The honourable Lahore High Court accepted the writ petition by holding that only that divorce would become final on the expiry of 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 of respondent No,3 (wife) had not been disputed or was such as was admitted by the petitioner to be correct in that event alone the divorce had become final on the expiry of period of 90 days.
18. It is surprising to note that the above said citation quoted by the learned counsel for respondent No,1 proves the claim of present petitioner because in the present case it was also claim of petitioner that no such power was delegated to respondent No,1, but even then the Chairman Arbitration Council issued the disputed certificate of effectiveness of Talaq. From this citation it is also proved that constitution petition is competent against the order of Chairman Arbitration Council.
19. In the case mentioned at serial No,III wife by exercising power of Talaq-eTafweez issued notice of Talaq. The Arbitration Council after proceedings issued certificate of effectiveness of divorce.
Husband challenged the order of Arbitration Council in a writ petition, which was dismissed. I.C.A.
Filed by the husband also did not find favour. After perusing this citation, I am of the firm opinion that facts of this case and that of citation are totally distinguishable inasmuch as in this case specific words regarding delegation of power of Talaq-e-Tafweez were not incorporated in column No,18 of the Nikahnama. From the words mentioned in the Nikahnama it is not proved that no such power was delegated by the petitioner to respondent No, 1 .
20. As far as sections 10, 11 and Order II, Rule 2, C.P.C. Are concerned, the petitioner filed civil Suit on 16-7-2008; whereas impugned order was passed by the Chairman Arbitration Council on 16-12- 2008. Since the order passed by the Chairman Arbitration Council can be questioned in a constitutional petition, therefore, the above said provisions are not attracted at all in this case and the constitutional petition is found to be competent to examine the validity and propriety of the impugned order.
21. For what has been discussed above, writ petition is accepted and the impugned order dated 16- 12-2008 passed by Chairman Arbitration Council and certificate for effectiveness of Talaq issued G on the basis of impugned order are set aside. Consequently, divorce deed executed by respondent No,1 is also declared to be void ab initio and illegal. However, respondent No,1 may file suit for dissolution of marriage before the concerned Family Court if so advised.
22. So far as the civil revision is concerned, since the grievance of the petitioner stands redressed while accepting the writ petition, so the civil revision has become infructuous, which is hereby dismissed accordingly. C . M. No,368/2009 In Writ petition.
23. Since the main writ petition is being disposed of finally, therefore, this C.M. Has become infructuous, which is dismissed accordingly.