P L D 2004 Lahore 77

Before Maulvi Anwarul Haq, J

Mst. NAZIR FATIMA ---Petitioner

Versus

NAZIM UNION COUNCIL, WARD NO.5, DHOKE HASSU, RAWALPINDI and

another---Respondents

Writ Petition No.1862 of 2003, heard on 10th November, 2003.

West Pakistan Family Courts Act (XXXV of 1964)-----

----S. 5 & Sched.---Muslim Family. Laws Ordinance (VIII of 1961), Ss.7(3) & 8---
Dissolution of marriage---Delegation of right to divorce by husband to wife---Exercise of
said right---One of the conditions of the marriage between parties was that husband had
delegated the right to divorce wife and entry to that effect was made in Column No.18 of
Nikahnama---Wife in exercise of said right pronounced divorce upon herself for her
husband and a notice was sent to Nazim Union Council concerned ---Nazim had
intimated wife that husband being not ready to pronounce divorce, wife could approach
the Court as he could not grant Khula and Nazim sent the case to the Family Court ---
Nazim was oblivious of legal position as right of divorce could be lawfully delegated by
husband to wife and that had happened in the present case and notice was sent by wife in
compliance with the terms of Ss.7 & 8 of Muslim Family Laws Ordinance, 1961---Ninety
days prescribed period having expired after receipt of notice issued by wife and re-
conciliation being not possible between the parties, law as prescribed in Ss.7(3) & 8 of
Muslim Family Laws Ordinance, 1961 would have its course ---Nazim would issue
requisite document regarding receipt of notice and failure of reconciliation within
prescribed time.

Waqarul Haq Sheikh for Petitioner.

Tanvir Iqbal, A.A.-G. with Khalid Mahmood, Nazim for Respondent No. 1.

Date of hearing: 10th November, 2003.

JUDGMENT

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 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. 1 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. 1. 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 understandingly 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 I 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.

H.B.T./N-372/L Petition allowed.