P L D 1961 (W (PLP)

Abdul Kadir Shaikh for Appellant. Faizanul Haq for Respondents. Date of hearing: 3rd May 1960. This is a reference by Mr. M. A. Kazi, the Additional Sessions Judge of Karachi, making a recommendation that an order dated 12‑12‑59 for a wife's maintenance passed by Mrs. Suraiya Ahmad Pai, Additional City Magistrate, Karachi, be modified for the reasons that the learned Magistrate has not given effect to the pronouncement of divorce by the husband.

2. The wife had alleged that she had been treated cruelly and turned out of her house by her husband Muhammad Nabi Khan, who resisted the application by denying the allegations and also by asserting that he had divorced his wife on 17‑10‑1958. The application was made on 8‑10‑1959. While appearing as a witness on 17‑11‑1959 during the proceedings the husband Muhammad Nabi Khan, again asserted the same position. The learned Magistrate did not believe the assertion of the husband regarding the divorce on 17‑10‑1958, and also refused to give effect to the pronouncement of divorce in open Court on 17‑11‑1959 on the ground that "it is not within the ambit of my power either to confirm or reject the plea". The learned Additional Sessions Judge has rightly observed that under Islamic Shariat Law the learned Magistrate should have given effect to the pronouncement of divorce in open Court, even though she did not believe the assertion of the husband regarding the earlier divorce on 17‑10‑1958. This proposition is so well -established that it is not necessary at all to refer to any authorities on the subject. It is clear that from 17‑11‑1959 the wife is not at all entitled to maintenance except for the period of Iddat. I therefore accept the recommendation of the learned Additional Session Judge to the effect that the wife be granted maintenance from the date of application to 17‑11‑1959 and beyond that for the period of Iddat, as the divorce pronounced on 17‑11‑1959 must be given effect. The order of the learned Magistrate is modified accordingly. The maintenance shall be at the rate already decided by the learned Magistrate namely, Rs. 30 per mensem.

3. The learned counsel appearing for the husband has raised another point, which is not mentioned in the reference, namely, that there was no application for the grant of main tenance to the two minor daughters who are now living with the wife, and therefore any order in this behalf is not justified. I have read the application presented by the wife and I find that it is correct that there is no express demand for the grant of maintenance to the two minor daughters Rehana and Rukhsana who are now living with the wife, but there is a clear assertion that the two minor daughters were also thrown out of the house along with the applicant and in the concluding portion there is a prayer for the grant of Rs. 150 as maintenance for herself. While appearing as a witness the wife again stated that no maintenance had been paid to the children. I consider that the facts clearly show that maintenance was being demanded for the two minor daughters as well who are now living with the divorced wife, and I would be taking much too technical a view if I were to set aside the order of maintenance for the two minor daughters on the sole ground that the concluding portion of the wife's application does not make an express demand in this behalf. It is clear that there is an assertion that the two daughters are not being maintained by their father, and the learned counsel appearing for the father does not deny the father's liability in this connection. I would not, therefore, interfere with this part of the order.

4. The reference is therefore accepted as indicated above. K.B.A. Reference accepted.