' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question an order passed by the Chairman, Arbitration Council, Ward No,4, Lahore Cantonment, holding that notice of Talaq served by the petitioner upon him under section 7 of the Muslim Family Laws Ordinance, 1961 was ineffective and invalid.
2. Ms. Shema Farooq, petitioner herein, was married to respondent No,2 on 9-2-1990. At the time of marriage, respondent No,2 had delegated to the petitioner the right of Talaq, which fact was duly incorporated in clause 18 of the Nikahnama which also provided that the delegated right shall be exercised with the permission of the elders of the family. It is unfortunate that the disputes and differences arose between the parties. According to the petitioner, she was treated by respondent No,2 with cruelty and in inhumane manner. She consequently decided to exercise the right of Talaq which had been delegated to her by the husband. Accordingly, she, by pronouncing Talaq, dissolved the marriage on 5-9-1994 and sent the notice required by section 7 of the Muslim Family Laws Ordinance, 1961 alongwith original deed of the divorce to the Chairman of the Arbitration Council who called upon the parties to nominate their representatives. After holding some proceedings, respondent No,1 by his order dated 5-12-1994 opined that the Talaq pronounced by the petitioner and notice given by her were ineffective as condition subject to which the right of Talaq had been delegated to the wife had not been fulfilled. This order of the Chairman/respondent No,1 has been assailed in this petition.
3. Learned counsel for the petitioner has contended with great force that the Chairman of the Arbitration Council had no jurisdiction in law to adjudicate upon the validity of the Talaq pronounced by the petitioner and the order passed by the Chairman in this behalf is wholly void and of no legal effect. Learned counsel has also pointed out that in the divorce deed, the original of which was sent to respondent No,1 by the petitioner alongwith notice, it had been specifically averred that she had obtained permission from the elders while exercising right of divorce. He has relied upon Mst. Fahmida Bibi v. Mukhtar Ahmad and another (PLD 1972 Lahore 694), Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqui and others (1984 SCMR 583) and Dr. Razia v. Mushir Ahmed Pesh Imam and another (1988 CLC 467).
4. Both the respondents have contested this petition. Although the Chairman of Arbitration Council i,e, respondent No,1 has filed his written statement but the respondent No,2 has failed to do so.
5. The contention of the learned counsel for the petitioner that the Chairman of the Arbitration Council had no authority to adjudicate upon the validity of the Talaq pronounced by the petitioner is unexceptionable. In law, an Arbitration Council is constituted only for the purpose of bringing about reconciliation between the parties and in the event of failure, the Talaq ipso facto becomes effective on the expiry of 90 days of the receipt of the notice under section 7 of the Muslim Family Laws Ordinance, 1961. It is unfortunately that respondent No,1 assumed the role of the Family Court and arrogated to himself the power to determine whether or not Talaq pronounced by the petitioner was valid. The judgments of this Court in Mst. Fahmida Bibi v. Mukhtar Ahmad and another (PLD 1972 Lahore 694) and that of Sindh High Court in Dr. Razia v. Mushir Ahmed Pesh Imam and another (1988 CLC 467) fully support this view.
6. Both the learned counsel appearing for respondents Nos.1 and 2 have reiterated that Tafweez' was subject to the condition that right shall be exercised by the wife after obtaining permission from the elders of the family and Talaq pronounced by her was invalid as no such permission was obtained.
7. As already observed, it was not within the jurisdiction of respondent No,1 to determine this question. Even otherwise the divorce deed specifically recites that the petitioner had obtained permission from the elders while exercising the right of divorce. It is unfortunate that while passing the impugned order the divorce deed was kept out of consideration by respondent No,1, Furthermore, the petitioner has placed on record affidavits of her father, mother and uncle in support of her assertion that she had pronounced Talaq with their permission. No written statement has been filed by respondent No,2 nor any material has been placed on record by him to rebut this assertion.
8. Learned counsel for respondent No,1 has relied upon the judgment of this Court in Mazoor Hussain v. Chairman, Arbitration Council, Union Council, Jalal, Thesil and District Gujranwala and 4 others (1988 CLC 2061) in support of his submission that the Chairman was competent to adjudicate upon the validity of Talaq. That case however proceeded on its own footing and has no application as there dispute was as to whether the notice was sent by the husband or someone else. In the present case, admittedly notice was served upon the Chairman by the petitioner.
In view of what has been stated abbve, this petition is allowed and the impugned order is declared to be without any lawful authority and of no legal effect.
' No order as to costs.