2006 PLP 1645 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

Instant constitutional petition challenged the judgments/orders dated 2-10-2002 and 31-8-2005, passed by the Chairman,: Arbitration Council of Union Council No.18, Gujjarpura, Lahore, and that of D.O. (R) to be declared illegal, void and of no legal consequence whereby application of respondent No.1, for grant of maintenance allowance was accepted and on petitioner's revision petition, the same was reduced to Rs.4000 per month, respectively.

2. Succinctly, relevant facts are that the petitioner married with respondent No.1 on 24-10-1996, according to Muslims rites through registered Nikha Nama. This wedlock did not give birth to any child and on account of strained relations, petitioner divorced respondent No.1 through a notice dated 12-11-1998 in terms of section 7 of the Muslim Family Laws Ordinance, 1961 and the Chairman, Arbitration Council, Ward No.54, Gujjarpura, Lahore, made the divorce effective on 12-2-1999.

3. Respondent No.1 on 14-9-2000, when her divorce had already become effective filed an application before the Chairman, Arbitration Council, (respondent No.2) for recovery of maintenance allowance from 24-10-1996 to 28-1-1999. The application was contested by the petitioner by filing his written reply. Chairman, vide his order dated 2-10-2002 accepted the application filed by respondent No.1 and granted her maintenance allowance with effect from 24-10-1996 to 12-9-1999 at the rate of Rs.8,000 per month, amounting to Rs.2,00,000.

4. Petitioner aggrieved of the decision by respondent No.2 dated 2-10-2002 filed a revision petition before the Collector with the powers of Controlling Authority (respondent No.3), who partly accepted the revision and reduced the quantum of maintenance allowance to Rs.4,000 per month vide order dated 31-8-2005. Petitioner, thereafter, filed instant constitutional petition with the relief noted above, and respondent No.1 in response to notice by this Court was represented through his counsel.

5. I have heard the learned counsel for the parties and have examined the record, appended herewith. All the material facts leading to controversy inter parties, are admitted between them, like marriage, issuance of notice of divorce by the petitioner on 12-11-1998, and its effectiveness by the Chairman, Arbitration Council, concerned on 12-2-1999 and the only point which hinged for determination is as to whether after the divorce to a wife had become effective, can file an application under section 9 of the Muslim Family Laws Ordinance, 1961. Case-law on the subject of maintainability of application for grant of maintenance allowance by ex-wife is divergent. In a case of Ghulam Jillani v. Deputy Commissioner/District Collector and others 1991 CLC 1813, the learned Single Judge in Chamber of this Court took the view that since section 9 of the Muslim Family Laws Ordinance, 1961 is a beneficial piece of legislation and is to be construed, keeping in view the object for which it was enacted i.e. to provide remedy to the women for recovering maintenance from their husband before a domestic forum free from all legal formalities and that the ex-wife could maintain application under section 9 of the Ordinance (ibid) because liability of maintenance having once accrued, its recovery could be ordered through provisions under discussion. This judgment was based on a case decided by the Honourable Supreme Court i.e. Muhammad Najeeb v. Mst. Talat Shahnaz and others 1989 SCMR 119, which related to right of a wife to claim past maintenance from her ex-husband. The other view that Chairman, Arbitration Council, loses jurisdiction to entertain, adjudicate or to decide the application by ex-wife for grant of maintenance allowance, was approved in the cases of Muhammad Zarif v. Mst. Safia Bibi 2000 MLD 1900; Mst. Shabnam Rasheed v. District Collector and others 2001 CLC 961 and by the Honourable Supreme Court in the case of Mst. Naziran v. Collector Sialkot and 2 others 1990 SCMR

803. The Honourable Supreme Court approved the ratio of judgment in the case of Mushtaq Ahmad v. Collector Lahore 1986 CLC 2312.

6. With the above referred judgments in the field, I proceeded to examine the provisions of section 9 of the Muslim Family Laws Ordinance, 1961 under which the Chairman, Arbitration Council, has been conferred jurisdiction to grant maintenance allowance to a wife and before whom respondent No.1 moved her application for grant of maintenance allowance. Provisions of law under examination reads as under:-- "

9. Maintenance:--(1) If any husband fails to maintain his wife adequately or where there are more wives than one, fails to maintain them equitably, the wife or all or any of the wives may in addition to seeking any other legal remedy available apply to Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband."

7. The above referred legislation clearly denotes that wife who is not being adequately maintained by her husband, besides availing other legal remedies, has been given right to apply to the Chairman, Arbitration Council, to settle the dispute regarding payment of maintenance allowance. It does not speak of a situation where a woman had seized to be a wife by operation of provisions of the same enactment, making her divorce effective. In other words ex-wife cannot go before the A Chairman, Arbitration Council, calling him to constitute Arbitration Court for award of the allowance in question. Looking from another angle, Arbitration Council, can only be constituted inter spouses whose relationship of husband and wife subsisted at the time of application. Besides my own formulation there are two judgments by the Honourable Supreme Court governing the subject one in the case of Muhammad Najeeb (supra) and the other in the case of Mst. Naziran (supra). Earlier judgment by the Honourable Supreme Court in the case of Muhammad Najeeb is not only a leave refusing but is also by the Honourable two Judges whereas the latter judgment in the case of Mst. Naziran is in appeal and was graciously given by a larger Bench consisting of five Honourable Judges of the august Supreme Court. Above all the judgment in the case of Mst. Naziran being later in time is binding on every body including me and has to be followed being law of the land. In this judgment the apex Court of this country while interpreting section 7 of the Muslim Family Laws Ordinance, 1961 found that pending notice of divorce by the husband, wife's application for maintenance after the expiry of 90 days from the service of notice, was not maintainable as she was not wife of the respondent in that case. Respectfully following the dictum of the Honourable Supreme Court, it is held that notice of divorce dated 12-11-1998 had become B effective on 12-2-1999 through a certificate issued by the Chairman, Arbitration Council, where after application by respondent No.1 filed on 14-9-2000 could not have been entertained by respondent No.2, whose proceedings culminating into his order dated 2-10-2002 were coram non judice and the order was ab initio void. The revisional Court without adverting to this legal defect decided the revision petition reducing the maintenance allowance of respondent No.1, which too was illegal, emerging out of proceedings which could not have been entertained. Both the impugned orders by respondents Nos.2 and 3 being void are declared to be non-existent in the eye of law. It goes without saying that respondent No.1, after her divorce had become effective, could not maintain application under section 9 of the Ordinance (ibid) but she could certainly file a suit for its recovery before the learned Judge Family Court concerned being a liability already accrued against the petitioner. Under law, Family Court can grant past maintenance of 3 years.

8. For the reasons noted above, instant petition is accepted and the impugned orders dated 2-10-2002 and c 31-8-2005 passed by respondents Nos.2 and 3 are declared to be illegal/non-existent, with no order as to costs. S.A.K./T-12/L???????????????????????????????????????????????????????????????????????????????????? Petition accepted.