' The brief facts of the instant writ petition are that the petitioner was married with respondent No,2 on 1-5-1992 and according to his contention this marriage was solemnised according to Shia Law and the respondent No,2 lived with the petitioner as wife till 9-3-1994, when she left the house of the petitioner and went to her parents and thereafter on 28-3-1994 the respondent served a notice of divorce under sections 7 and 8 of the Muslim Family Laws Ordinance, 1%1 upon the present petitioner through "Talaq Tafviz" stating therein that it was not possible for her to live with the petitioner as wife and husband. The present petitioner sent reply of the said notice on 11-4-1994 stating therein that he had not delegated the powers of divorce to respondent No,2. On 20-4-1994 the petitioner sent notice to the respondent No,2 asking her to come and live with the petitioner. On 29-5-1994 the present petitioner sent a letter to the respondent No,1 (The Chairman, Arbitration and Reconciliation Council, Lahore Cantonment Board, Ward No,7, Lahore Cantt.), raising objection that he had no power to issue a certificate and that clause 18 of the Nikahnama had been forged by the respondent No,2. Thereafter, the present petitioner filed a suit for restitution of conjugal rights against respondent No,2, on 31-5-1994 which was hotly contested by the respondent No,2. The respondent No,2 also filed a suit for recovery of dower amounting to Rs,50,000 which is also pending adjudication before the same Judge, Family Court.
2. The grievance of the present petitioner is that the respondent No,1 Chairman, Arbitration and Reconciliation Council, Lahore Cantonment Board, Ward No,7, Lahore Cantt. Has passed the impugned order dated 2-7-1994 behind the back of the petitioner; the impugned order was beyond the jurisdiction of the respondent No,1, as according to the arguments of the learned counsel for the petitioner, the respondent No,1 had no authority to decide the question of legality of Talaq or to issue a certificate that the divorce had become effective in view of the law laid down in Mst. Zakia Farooq v. Chairman, Union Council and another 1991 CLC 1720, Mst. Fehmida Bibi v.
Mukhtar Ahmed etc. PLD 1972 Lahore 694 and Ahmad Nadeem v. Chairman, Arbitration Council and others 1991 MLD 1198 (Lahore). He has further submitted that the Chairman, Arbitration Council, ipso facto was ceased of the authority or jurisdiction to enter into the question of validity of Talaq or application of right of pronouncement of Talaq. He 'further contended that since the petitioner was a Shia Muslim and he was married according to Shia Law wherein it is provided that a divorce can be pronounced orally in presence of two witnesses of. "known probity" in a set form of Arabic words as is laid down by the Hon'ble Supreme Court in Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51. Hence according to the learned counsel for the petitioner the Talaq pronounced by respondent No,2 is violative of the principles of Shia Law and carries no effect as is held in Dr. Razia v. Mushir Ahmed Pesh Imam and another 1988 CLC 467. The Chairman has the only power of reconciliation. He further argued that the application of power of divorce could only be decided by a Court of competent forum and not the Chairman.
3. Learned counsel for the respondent No,2 has vehemently contested all the points raised by learned counsel for the petitioner. He has produced a photo copy of Nikahnama and also a certified copy of the registered Nikahnama 2-5-1992 of the petitioner and the respondent wherein in Column No,18 of the said Nikahnama against the questionnaire whether the husband has given authority. (Akhtiar or Tafweez-e-Talaq) to the wife and if yes under what contingencies. Against this column it is written "yes" ( C.) ). According to the Muslim Family Laws of Pakistan {{URDU TEXT}} he has also refuted the stand taken by the learned counsel for the petitioner that the respondent No,2 was not delegated any power of divorce. He has also submitted that infact the respondent No,2 did not belong to Shia faith; she was a Sunni and the marriage was solemnized according to the Nikahnama prescribed by the provisions of Family Laws Ordinance, 1961. According to Sunni rites the witnesses are deposed against Column No,11 while according to Shia marriage no witnesses are required. He has further submitted that since the respondent did not belong to Shia faith she had pronounced Talaq according to her personal law which is Sunni law and she rightly sent a notice to the petitioner as prescribed by the provisions of section 7 of the Family Laws Ordinance, 1961. He has strongly contradicted the plea taken by the learned counsel for the petitioner that the divorce will be pronounced according to Shia Law. He has submitted that since the respondent is Sunni Muslim she will not be subject to Shia law as held by Section 32 of Chapter III of Mahomedan Law under the caption of "Mahomedan Sect". She has rightly exercised her right of repudiation duly given by the husband in the registered Nikahnama, dated 1-5-1992 and the Chairman, Arbitration/Reconciliation Council has rightly initiated the proceedings according to the provisions of sections 7 and 8 of the Family Laws Ordinance, 1961 and upon failure of the reconciliation the respondent No,1 has issued certificate according to the powers available to him under the provisions of the said Act. He has relied on Mst. Manzoor v. Allah Wasaya PLD 1973 BJ 36 and Major Muhammad Hayat Tarrar v. District Collector, Gujranwala and others 1993 CLC 219 (Lahore). Learned counsel for the respondent reiterated that in case of respondent No,2, who is of Sunni faith, the Shia Law will not prevail. In view of the, settled principle of law regarding a Sunni female in respect of her personal right the documents which were made available and present before the Chairman Reconciliation were sufficient to prove that the respondent No,2 was duly delegated with the power of "Talaq Tafweez" and she had exercised that power and repudiated herself.
4. I have heard at length both the parties and have perused the documents available on record.
The points for consideration by this Court are:---
(1) Whether the respondent No,2 was possessed with the power of Talaq Tafweez duly delegated by the petitioner;
(ii) Whether without its formal pronouncement the respondent No,2 through a notice could repudiate herself;
(iii) Whether the Chairman, Union Council could make this divorce effective in the similar manner and mode if it was pronounced by the petitioner; and
(iv) When one of the spouses to the marital tie belongs to Sunni sect and not belonging to the Shia faith what will be the mode of divorce in respect of Talaq.
5. The Holy Qur'an being a Code itself provides: ' It is a simple Deen, and anybody who makes it complicated will stand ostracized. The provisions of Islam in respect of divorce are very simple and balanced. The God has fixed the limits and no one can transgress over it.
' Under Mahomedan Law husband enjoys an absolute power of divorce to his wife. He may delegate this power to his wife by way of a contract. As a man in person repudiates his wife so he may commit the power of repudiation to his wife to repudiate herself. This power may be conferred on a third party as well.] (Wilson Anglo Mahomedan Law, Edn. VI and Baillie Digest of Mahomedan Law, Book III, Chapter III).
' When such power of repudiation is conferred on the wife or some third person the divorce will take effect, if the power so conferred is exercised. Mahomedan Law by Tayyabjee and Buffatan Bibi v. Sh.
Abdul Salim AIR 1950 Calcutta 304. This power can be a conditional power or rests upon the happening of some contingencies. It can also be unconditional. When it rests upon the happening of certain contingencies then the wife should exercise the delegated power of divorcing herself when the condition entitling her to exercise that power is fulfilled. But if that power is unconditional she may exercise the same when and where required. In both these circumstances a formal pronouncement of Talaq is necessary.
' Section 7 of the Muslim Family Laws Ordinance, 1961 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 his 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.
(5) .........................,,,,,,,,...........
(6) .
' The provisions of section 8 of the Ordinance may also be read as under:- "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."
The words of section 7(1) "after the pronouncement of Talaq in any form whatsoever," will denote also the divorce in writing which has been recognized by the Muslim jurists. In the present case the respondent No,2 has produced certified copy of the Nikahnama carrying a stipulation against Column No,18 about the delegation of Talaq Tawfeez. It is written over there "yes" {{URDU TEXT}} and further it is written "according to the Muslim Family Laws Ordinance, 1961," meaning thereby according to section 8 of the same Ordinance. A careful perusal of the registered Nikahnama would show that no condition or contingency exist over there. Meaning thereby the delegation of Talaq Tawfeez by the petitioner was unconditional. The right of divorce primarily belongs to the husband. The only factor which is to be seen is whether the petitioner has delegated this power of divorce absolute or unconditional to his wife or a third person. In the present case the entries against Column No,18 of the Nikahnama are very clear and the respondent No,2 has exercised that delegated power of divorce i,e, (Talaq Tawfeez) and has repudiated herself through a notice dated 28-3-1994 duly served upon the petitioner according to sections 7 and 8 of Muslim Family Laws Ordinance, 1961 stating therein that by virtue of Talaq Tawfeez as it is not possible for her to live with the petitioner as wife and husband she repudiates herself.
' According to Mahomedan Law once a person to whom the power to divorce is delegated, pronounces divorce the power so delegated becomes irrevocable and this will operate as Talaq of the wife by the husband. (Mahomedan Law by Mulla and Baillie, page 19, Akleema Khatoon v.
Mohib-ur-Rehman PLD 1963 Dacca 602. Thus in view of the above Islamic Laws the notice sent to the petitioner by the respondent will be considered as a formal pronouncement of Talaq by the wife to repudiate herself in exercise of the powers given to her.
6. The second point that the marriage was ,allegedly solemnised according to Shia Law is strongly refuted by the respondent No,2. The marriage under Shia law is a holy institution, it may be contracted according to Shia law without witnesses but it cannot be dissolved unless in presence of two witnesses of "known probity" in set form of Arabic words pronounced by the husband but in the present case both the spouses do not belong to Shia sect. The respondent No,2 belongs to Sunni sect. The provisions of section 30 of Muhammadan Law provides:-- "30. Each sect governed by its law.---The Mahomedan law applicable to each sect or sub-sect is to prevail as to litigants of that sect or sub-sect. ' The Sunni law will therefore apply to Sunnis, and the Shia law to Shias, and the law peculiar to each sub-sect will apply to persons belonging to that sub-sect."
(Reliance on Deedar Hossein v. Zuhoor-oon-Nisa (1841) 2 M.I.A. 441, 477).
Under 'Sunni law divorce is recognised as valid through single pronouncement and on a third pronouncement the dirvorce will become irrevocable. Reliance on Mst. Fahmida Bibi v. Mukhtar Ahmad (PLD 1972 Lahore 694) and Mst. Maqbool Jan v. Arshad Hassan (PLD 1975 Lahore 147).
7. The contention of the learned counsel that the petitioner being a Shia has delegated this power of Talaq Tafweez to the wife, the mode of pronouncement of talaq shall be according to Shia Law carries no substance. In case of express delegation as is the case of the respondent No,2 the husband has no power to recall the ' authority once entrusted to his wife.
8. Under the Hanfi law two witnesses are required for contracting marriage but while dissolving the marriage through a divorce it becomes effective even though given under compulsion, so long the man is major and sane, he must be presumed to know what he is doing and bear its consequences the repudiation must be affected either in express words or by implication or by writing its intention. Reliance on Major Muhammad Hayat Tarar v. District Collector, Gujranwala (1993 CLC 219 (Lahore).
' The notice of repudiation is enough to convey to the petitioner that there was no possibility of re- union of the parties and the respondent No,2 while exercising her right of repudiation divorced herself: It was not necessary for her to adopt the modus operandi of pronouncement of talaq which could be adopted by the petitioner while divorcing the respondent as she belongs to Sunni sect and had repudiated herself in the manner the Sunni law provides.
9. The last point of the learned counsel for the petitioner is that the Chairman was ceased of the jurisdiction to make the divorce effective in the present case, in the manner and mode which is generally adopted by the parties to a divorce. The facts and circumstances in the case refer Muhammad Taqi v. Council/Chairman, Union Council etc. (1986 CLC 1808 (Karachi) are entirely different. In this case, the Chairman instead of confirming the divorce directed the parties to get their dispute settled from the Civil Court. It was held that the direction was illegal as the divorce duly communicated to the wife and the Chairman ipso facto becomes effective after, the expiry of ninety days.
10. The Arbitration Council is constituted by the Chairman consisting of one representative from each side. Although the intention of legislature is to give a final opportunity to the parties for reconciliation after divorce has taken place between the parties within the period of Iddat as the divorce once pronounced and communicated to each other notwithstanding the conduct of the parties becomes effective after the expiry of ninety days unless it is revoked earlier by the husband or wife exercising the delegated power of divorce as is held in Mst. Fahmida Bibi v. Mukhtar Ahmad (PLD 1972 Lahore 694). The contention of the learned counsel for the petitioner that he was condemned unheard is not well-founded. From the impugned order, it is clear that the petitioner appointed his representative who later on absented himself. The law is very clear on the subject of divorce pronounced and communicated to each other notwithstanding whether any party appears before the Chairman or not ipso facto becomes effective after the expiry of ninety days unless revoked earlier.
11. Section 7 of the Family Courts Act is very clear in cases of delegated powers of divorce to the wife (Talaq Tafweez) or to a third person. It provides that the provisions of this section mutatis mutandis apply to such exercise of divorce.
12. I have gone through the impugned order passed by the Chairman, Arbitration/Reconciliation Council. I have seen that the Chairman had not exceeded his jurisdiction while passing the impugned order. He has simply narrated that the reconciliation between the parties had failed and the respondent who was delegated power of Talaq Tafweez has repudiated herself and this divorce has become effective after the expiry of ninety days. The delegation of power of Talaq in case of a woman will be the same as prescribed in relation to a man. Sections 7 and 8 provide the mode of dissolution by virtue of which the parties dissolved their marriages by their own act without intervention of the Court.
13. The provisions of Family Laws Ordinance in respect of delegated power of divorce are very clear and whenever a woman when she is given Ikhtiar of Talaq Tafweez by her husband according to the provisions of Family Laws Ordinance and this stipulation exists in Column No,18 of the Nikahnama the woman can exercise this power and repudiate herself under the law of her sect meaning thereby if she belongs to Sunni sect, the Sunni law will apply to her case and if she belongs to Shia or other sect the law peculiar to that sect shall apply to the person of that sect and whenever a notice of such delegated power of divorce is given to the Chairman he is under the bounden duty of law to constitute Arbitration/Reconciliation Council and initiate proceedings in the same manner and mode as it is a Talaq by the husband to his wife. He is strictly guided by the provisions of sections 7 and 8 of the Family Laws Ordinance and whenever Talaq becomes effective and the final reconciliation fails the Chairman may deliver a certificate of Talaq becoming effective.
14. I see no substance in the present petition which is dismissed with no order as to costs.