' The petitioner has through the instant Constitution petition questioned the legality and the propriety of the order, dated 28-5-1999 passed by the Chairman, Arbitration Council constituted under the provisions of the Muslim Family Laws Ordinance, 1961.
2. The facts forming the background of the Constitution petition are that the petitioner and respondent No,3 were married on 2-11-1998. Matrimonial disputes having arisen between the two, respondent No,3 left the house of the petitioner. In the purported exercise of the right of divorce allegedly delegated to her by the petitioner, she sent a notice of Talaq to the petitioner and a copy of the same to the Chairman, Arbitration Council, respondent No,1 who issued notice to the parties for affecting reconciliation between the two. However, the petitioner on appearing before respondent No, 1 took up the position that he had never delegated the right of divorce to respondent No,3 and the entries made to that effect in the Nikahnama were forged and fabricated and that being so, respondent No,3 could not issue the notice of Talaq to either the petitioner or to the Chairman, Arbitration Council. On the plea to the aforesaid effect having been taken by the petitioner as to the non-delegation of the right of divorce by the petitioner to respondent No,3, respondent No,1 embarked upon an inquiry into the allegations as to the non-delegation of right of divorce and the forgery and the fabrication made in the Nikahnama and vide the impugned order held that the delegation of the right of divorce had validly been made by the petitioner to respondent No,3 and that there was no fabrication and forgery in the various columns of Nikahnama as alleged by the petitioner. These findings of the Chairman, Arbitration Council, respondent No,1 have been assailed through the instant Constitution petition by and on behalf of the petitioner.
3. Mr. Tariq Aziz, Advocate appearing on behalf of the petitioner has raised the following contention:-- "that the jurisdiction of a Court or a Tribunal is conferred by law and no Court or Tribunal can assume unto itself any jurisdiction not so conferred on it. Elaborating his submissions, learned counsel for the petitioner argued that the import and purport of the provisions of section 7 of the Muslim Family Laws Ordinance, 1961 was to try to bring about reconciliation between the two spouses who fall apart for one reason or the other. In the event of the reconciliation not being possible as a result of the effort made by the Arbitration Council. All that the Chairman of the said Council has to do is to record a finding as to the failure of the reconciliation proceedings. He has no jurisdiction or authority to embark upon and elaborate inquiry, record evidence as to the disputed questions of fact and give a finding thereon on the basis of the evidence led before him. In support of the submissions that the Chairman, Arbitration Council lacked the jurisdiction to pass the order which he did, learned counsel for the petitioner placed reliance on the following judgment: --
(i) Syed Ali Nawaz Gerdazi v. Lt.-Col. Muhammad Yousaf PLD 1963 SC 51
(ii) Mst. Fehmida Bibi v. Mukhtar Ahmad and another PLD 1972 Lah. 694,
(iii) Ms!. Zakia Farooq v. Chairman, Union Council and another 1991 CLC 1720 (Lahore),
(iv) Dr. Syed Qamber Murtaza Bokhari v. Chairman, Arbitration and Reconciliation Committee, Lahore and another 1995 CLC 1524 (Lahore),
(v) Mst. Shama Farooq v. Chairman, Union Committee, Ward No,4, Lahore Cantt. 1996 CLC 673 (Lahore),
(vi) Bushra Qasim Khan v. Dr. Abdul Rashid and another PLD 1997 Lah.
484.
4. I have gone through the judgments referred to by the learned counsel for the petitioner. They are on all fours with the facts of this case.
5. Mr. Afnan Karim Kundi, Advocate appearing on behalf of respondent No,3 could not refute the weighty arguments of the learned counsel for the petitioner except saying that the Chairman, Arbitration Council was fully competent to pass the order which he did and that on the expiry of a period of 90 days, the divorce pronounced by respondent No,3 in the delegated exercised of right of divorce had become final.
6. I am afraid, the contention of the learned counsel for respondent No,3 has any force. Only that divorce would become final on the expiry of a 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 to respondent No,3 had been undisputed or was such as was admitted by the petitioner to be correct, in that event alone the divorce would have become final on the expiry of a period of 90 days. However, such is not the position in the instant case. The very right of respondent No,3 to pronounce Talaq has been disputed and questioned by the petitioner on the plea that at no point of time was such a right delegated by him to respondent No,3. He rather went a step further and alleged that the entries made in the Nikahnama showing the right of divorce as having been delegated by the petitioner to respondent No,3 were forged and fabricated.
Such being the nature of allegations and counter allegations of the parties, the Chairman Arbitration Council could not record a binding determination of fact as to the existence or otherwise of a right in favour of respondent No,3. Learned counsel for respondent No,3 was pointedly asked to pin point a provision in the Muslim Family Laws Ordinance, 1961 whereunder respondent No,1 was competent to pass the impugned order but he failed to refer to any such provision.
7. As a natural corollary to the, aforesaid discussion, I hold that the order, dated 28-5-1999 passed by the Chairman, Arbitration Council is wholly without any jurisdiction and without lawful authority.
The Constitution petition is accordingly accepted and the order aforementioned is declared as such and is set-aside. The parties are left to bear their own costs.