The petitioner Mst. Nazir Fatima was married to Muhammad Shahid respondent No,2. The Nikahnama was duly drawn up in the prescribed forms. The marriage was thus performed on 11-4- 2001. One of the conditions of the marriage was that the husband i,e, respondent No,2 delegated the right to divorce to Mst. Nazir Fatima petitioner. Entry was duly made in Column No,18 of the Nikahnama. In the exercise of the said A right, the petitioner pronounced divorce upon herself for the respondent No,2, her husband on 4-1-2003. A notice was sent to the respondent No,I in compliance with the law. Now the respondent No,1 had intimated the petitioner on 12-5-2003 (Annex. 'A') that since the husband is not ready to pronounce divorce, the petitioner may approach the Court as he cannot grant Khula'. He accordingly sent the case to the Family Court.
2. In response to the notices issued, learned A.A.-G. Has put in appearance alongwith the Nazim respondent No, I . When confronted he said that the husband of the petitioner-lady had appeared before him and had not denied the delegation of the said authority. However, on his own understanding he opined that divorce cannot be pronounced by the petitioner in any manner.
3. It is but obvious that the respondent No,1 is oblivious of the legal position. The right of divorce can be lawfully delegated by the respondent-husband to the wife and this is what that has happened in this case as would be evident from Column No,18 of the Nikahnama. The notice was sent by the petitioner-lady in compliance with the terms of section 8 read with section 7 of the Muslim Family Laws Ordinance, 1961.
4. Now according to Nazim respondent No,1, the time prescribed by law i,e, 90 days had expired after the receipt of the notice issued by the petitioner-lady and re-conciliation is not possible between the parties. This being so, the law as prescribed in section 8 read with section 7(3) of the Family Laws Ordinance, 1961, shall have its course.
5. The writ petition is allowed. The impugned order dated 12-5-2003 of the respondent No,1, Union Council No,5, Dhoke Hassu, Rawalpindi, is set aside being without lawful authority. He undertakes that he will issue the requisite documents regarding the receipt of the notice and failure of re- conciliation within the prescribed time. No order as to costs.