2002 PLP 3105 (YLR)

2. Through the instant Constitutional petition petitioner has assailed the aforesaid orders.

3. Learned counsel for the petitioner submits that petitioners is willing to pay the maintenance allowance to his minor son Ghulam Mustafa‑respondent No.4 in terms of the decree awarded by the learned Judge Family Court but respondent No.3 Mst. Anwar Bibi had already been divorced by the petitioner on 13‑9‑1997 vide a Divorce Deed, therefore, she was not entitled to any maintenance after the period of `Iddat' from the said date. This aspect was neither properly appreciated nor duly weighed by the learned Courts below. Adds that the petitioner while appearing as D.W.I during trial of the suit for maintenance categorically stated that he had already divorced Mst. Anwar Bibi and this portion of his statement was not cross‑examined. Meaning thereby the factum of divorce was admitted to be correct by respondent No.3. This statement was recorded on 29‑7‑1998 and respondent No.3 could claim maintenance upto three months (being `Iddat' period) thereafter at the most. In any case she is not entitled to the maintenance after having been divorced by the petitioner. It is lastly contended that failure to send a notice to the Chairman of Local Council does not render the divorce ineffective in `Sharia'. Reference has been made to 1994 SCMR 2098 (Mst. Zahida Shaheen and another v. The State and another), 1992 SCMR 1273 (Allah Dad v. Mukhtar and another) and 1975 C.L.C. 724 (Batool Bibi v. Muhammad Hayat and another).

4. On the other hand, learned counsel for respondents Nos.3 and 4 vehemently supports the impugned orders by submitting that the same had been passed strictly in accordance with law and facts.

5. I have given due consideration to the arguments of learned counsel for the parties, perused the material available on the file and gone through the judgments cited at the bar.

6. Admittedly, no appeal was filed by the petitioner against the judgment and decree of the learned Judge Family Court dated 18‑11‑1999 whereby suit of respondents Nos.3 and 4 was decreed in the following terms:‑ "The plaintiffs are entitled to recover maintenance from defendant at Rs.1,000 per month for plaintiff No.1 (now respondent No.3) and Rs.500 per month for plaintiff No.2 minor (respondent No.4) since the institution of this suit till plaintiff No.1 remains the wife of defendant and plaintiff No.2 retains the age of majority." This decree having not been assailed in any forum had attained finality and the learned Executing Court has to confine itself within the terms of the said decree.

7. I have also noticed that the learned Additional District Judge while dismissing appeal of the petitioner against the order, dated 15‑2‑2002 of the learned Executing Court vide his impugned order dated 29‑10 2001 made a benevolent observation as under:-- "He (present petitioner) can take the, plea of having divorced the respondent (now respondent No.3) after 18‑11‑1999 to absolve his liability of payment of her maintenance allowance which can be probed by the learned Executing Court. "

8. I am convinced that the learned Courts below have passed the impugned orders on a due appreciation of law and facts. No case has been made out warranting indulgence of this Court qua these concurrent judgments in exercise of the jurisdiction under Article 199 of the Constitution. However, it is hereby observed that the petitioner may get revived his Objection Petition only to the extent of benevolent observation made by the learned Additional District Judge, noted above.

9. Instant petition stands disposed of. H.B.T./B‑75/L Order accordingly.