' The petitioner is aggrieved by an order dated 28-4-1973 passed by the Chairman, Union Council under Muslim Family Laws Ordinance (hereinafter referred to as the Ordinance) which order has been maintained in revision with slight modification.
2. The petitioner divorced his wife Mst. Fazalun Nisa respondent No, 3 by a deed dated 10.3-1973. A copy of the divorce was sent among others to the Chairman of the Union Council. It was received by him on 31-3- t973. After taking proceedings under section 7 of the Ordinance the Chairman passed the impugned order and then proceeded to decide a claim by Fazalun Nisa filed earlier with regard to maintenance and by an order of the same date allowed her a monthly maintenance of Rs, 200. The petitioner filed a revision petition before the Collector who by his order dated 18-12-1973 modified the order with regard to maintenance in so far as he reduced it to Rs, 100 per month.
3. This petition under Article 199 of the Constitution is directed against that part of the order of the Chairman and the Collector which does not give effect to the divorce given by the petitioner and communicated to the authority concerned. It is contended by the petitioner that the Chairman had no power in law to annul a divorce in exercise of the powers possessed by him under the Ordinance.
4. The learned counsel for respondent No, 3 has urged on the basis of rule 6 of the Rules framed under the Ordinance that the Chairman is required on receiving a notice of this nature to constitute an Arbitration Council and he exercised that power and on failure of the petitioner to come forward and associate with the proceeding he annulled the divorce given by him. The authority to do so is traced in the Rules.
5. The proceedings before the Chairman were under section 7 of the Ordinance. The requirements of the law furnished therein so far as this petition is concerned, are that a 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 his wife. A talaq so communicated unless revoked earlier or the operation of it extended in certain circumstances is not to be effective until the expiry of 90 days from the date when such notice is delivered to the Chairman. The Chairman under the law has a duty on receipt of such notice to constitute an Arbitration Council whose duty is to attempt reconciliation between the spouses within the time permitted under the law for no power was possessed by the Chairman to annul the divorce.
6. Reference to rules for the purposes is not quite relevant. Firstly, if no provision is made in the Act either expressly or by necessary implication then a power cannot be conferred by rules which may make the provisions of the Act inconsistent with it. Secondly, even the rule does not provide that the Chairman has the authority to annul the divorce. On the contrary if any party to the proceedings does not come forward and associate in the proceedings the rule prescribes that the proceedings are to continue, whether the party comes forward or not. Such a can cannot be placed on a footing different from the one where attempted reconciliation has failed due to the established fault of one of the parties. The order passed by the Chairman annulling the divorce is clearly without lawful authority and of no legal effect. By the operation of clause (7), subsection (3) read with section 5 of the Ordinance divorce will become effective from the date prescribed therein and consequently the period of maintenance would also be governed after taking into account the period of iddat starting from the time and the date computed by reference to section 8. The petition is allowed with no order as to costs.