RAZIA Versus MUSHIR AHMED PESH IMAM

In this petition, the petitioner has challenged the order passed by the Chairman of Reconciliation Council, dated 27‑3‑1984, whereby the petitioner was directed to approach the competent Court of law in view of the legal complications involved in the matter of the marriage of the petitioner with the respondent No.2 and the Talaq pronounced by the petitioner upon herself under a power allegedly given to her by the respondent No.2.

2. The relevant facts are that the petitioner had approached the respondent No.l on 15‑12‑1983 with a notice under section 7/8 of the Muslim Family Laws Ordinance, 1961 intimating that she has pronounced divorce upon herself by means of "Talaq‑e‑Tafweez" authority given to her by the respondent No.2. The said notice was received by the respondent No.l on 29‑1‑1984. The respondent No.l replied to the petitioner to supply the copy of Talaq‑e‑Tafweez given to her by the respondent No.2. On 29‑1‑1984 copy was supplied to the respondent No.l and notice was issued to the parties for 7‑3‑1984. On 7‑3‑1984, the parties appeared before the respondent No.l and the petitioner alleges that she took up the position that conciliation time was over. However, the proceedings were continued. The respondent No.2 filed objections on 13‑3‑1984 objecting to the jurisdiction of respondent No.l on account of invalidity of the delegation of Talaq and in the alternative contending that the delegation, if any given before the marriage was invalid. On 19‑3‑1984, the petitioner filed objections in writing before the respondent No.l replying to the objections of the respondent No.2 and pointing out that the Chairman could not proceed in the matter except in confirming the Talaq‑e‑Tafweez. Finally on 27‑3‑1984, respondent No.l considering the contention of respondent No. 2 raised certain points in respect of the validity of the marriage between the petitioner and the respondent No.2 on account of the marriage not having been reported to the counsel of Pakistan in Germany where the marriage had taken place in 1962. Which was not in conformity with the Muslim Family Laws and that since Nikah was performed in "Ahmadiyya Mission". Therefore, it was not in accordance with the Sharia and that the factum of Talaq‑e‑Tafweez was not mentioned in the certificate of Nikah and further since the Talaq‑e Tafweez was delegated before 20 days of marriage, therefore, its validity is to be ascertained. He therefore, directed the petitioner to approach the competent Court of law.

3. Mr. Khalid M. Ishaque, counsel for the petitioner submitted that the respondent No.l has proceeded beyond his jurisdiction in raising the points in respect of the marriage and the validity of Talaq‑e‑Tafweez, etc. His contention is that under section 7 of the Muslim Family Laws Ordinance, 1961, the Chairman of Reconciliation Council has a limited jurisdiction of bringing about a reconciliation between the parties and, therefore, he can neither give a decision in respect of any contention raised before him nor he can direct any party to approach a Civil Court. He can merely record a factum of success or failure of the conciliation proceedings and nothing beyond that. His further contention that the Talaq pronounced by the petitioner upon her under the authority delegated to her from the respondent No.2 had become effective after 90 days of 19‑12‑1983 when the notice was received from the petitioner by the respondent No.l in respect of Talaq‑e‑Tafweez.

4. Mr. Kanwar Mukhtar Ahmed for the respondent No.2 submitted that the Chairman was entitled to consider the contentions raised by the authority before him and, therefore, what the respondent No.2 did was in the performance of his duty to bring about a reconciliation between the parties. He elaborated after all if the validity of marriage was questioned by the respondent No.2 and the validity of delegation of Talaq was also questioned before the respondent No.l then it was his duty to take the same into consideration and not to confirm the Talaq if the contentions of the parties had any force.

5. The relevant provisions of sections 7 and 8 of the Muslim Family Laws Ordinance reads 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 a notice in writing of his having done so, and shall supply a copy thereof to the wife.

(2) Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.

(3) Save as provided in subsection (5) Talaq revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman.

(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) If the wife be pregnant at the time Talaq is pronounced, Talaq shall not be effective until the period mentioned in subsection (3) or the pregnancy, whichever is later, ends.

(6) Nothing shall debar a wife whose marriage has been terminated by Talaq effective under this section from re‑marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective."

"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 where 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."

6. It appears to me that the contentions of the petitioner's counsel have some force. The Chairman of the Arbitration Council is empowered merely to bring about the reconciliation between the parties to a marriage and he has no business of going into the niceties of the questions raised before him in respect of the validity of the marriage or the validity of Talaq or the delegation of the right of pronouncement of Talaq. Therefore, the observation made by the respondent N0.1 in respect of marital status of the petitioner with respondent No.2 or in respect of the delegation of Talaq were not competently made by him. The maximum that the respondent No.l could do in the matter was to record the contentions of both the parties before him and then merely state whether he had been able to bring about a reconciliation between the parties or whether the reconciliation efforts have failed. In case the respondent No.2 wanted to avoid the effect of section 7 or to challenge the authority of Talaq Tafwiz, then he should have obtained a declaration to the effect from a competent Court but not before the respondent No.l .

7. From the proceedings of the respondent No.l it does not appear to me that he has made any effort of reconciliation between the parties. But he was merely trying to sort out the objections raised by the respondent No.2. I would venture to say that the Chairman did not perform his duty in accordance with law.

8. In P L D 1972 Lah. 644, Sardar Muhammad Iqbal, J. as he then was, has interpreted section 7 of Muslim Family Laws Ordinance, 1961 and has observed that the only thing the Chairman can do is to record that a conciliation has failed. There is no other function which a Chairman is competent to perform. It was further observed in that case that there is no provision in the Ordinance or the rules requiring the Chairman to give a decision or issue a certificate to make the divorce effective.

With respect I am in general agreement with the view expressed in the above case except that I would add that the Chairman can also record if the conciliation efforts have succeeded and the person who had pronounced the Talaq has agreed to revoke the same. I find that in this case before me there was no serious efforts made by the respondent No.l in respect of the reconciliation between the parties, and when I say reconciliation, it means bringing the two parties at variance to a point where they come to an understanding that they can live together. If the respondent No.l had made any serious effort in this respect then it would have been much more useful to all, but he did not do so and did not apply his mind or efforts towards the reconciliation of the parties. In fact what appears to me is that the parties before him were absolutely at war with each other and there did not appear to be any meeting point between them and, therefore, in these circumstances only thing Chairman could do was to record the result of the failure of reconciliation. Therefore, the order of 27th March, 1984 passed by the respondent No.l was without lawful authority and of no legal effect. Therefore, the petition succeeds to that extent.

H . B . T . / R‑39/ K Petition allowed.