1991 PLP 1142 (CLC)

(e) Interpretation of statutes

Provisions of two statutes, if operating in the same field, have to be harmonised and a conflict between the two could not be readily presumed. (f) West Pakistan Family Courts Act (XXXV of 1964)

S.5 & Sched.

Constitution of Pakistan (1973), Art. 199

Appellate Court's judgment whereby judgment of Trial Court was set aside being not in accordance with law, was declared to be without lawful authority and of no legal effect-- Judgment and decree of Trial Court was restored. Taki Ahmad Khan for Petitioner. Nemo for Respondent No.l. Rana Nasrullah Khan for Respondent No.2. Date of hearing: 9th March, 1991. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1913, arises out of a suit for maintenance filed by the petitioner against respondent 2 on 12th June, 1988 claiming that she was entitled to receive Rs.300 per month from the respondent in accordance with the terms of the Nikahnama. The suit was contested by respondent No.2 but was decreed by the Family Court on 29th May, 1989. An appeal was taken by respondent No.2 to the Additional District Judge, Sialkot, which was accepted and the suit for maintenance filed by respondent No.2 was dismissed on 18th November, 1989. Hence this petition.

2. Mr. Taqi Ahmad Khan, learned counsel appearing on behalf of the petitioner contends that admittedly the Nikah of the parties was performed on 16th June, 1985, and the petitioner/wife was entitled to receive maintenance from her husband in accordance with the conditions contained in the Nikahnama itself at the rate of Rs.300 per month and the fact that Rukhsati had not taken place was of no consequence in the absence of any plea being set up by respondent No.2 in the written statement that the wife had refused her conjugal society without any reasonable cause. Reliance has been placed on a Division Bench judgment of Peshawar High Court in Mst. Bibi Musarrat v. Sarfaraz (1990 C L C 1908).

3. Rana Nasrullah Khan, Advocate, appearing on behalf of respondent No.2 while controverting the arguments of the learned counsel for the petitioner contended that at the time when the suit was filed, the petitioner was not the wife of respondent No.2 who had dissolved the marriage by pronouncing Talaq on 10th November, 1987, and as such she could not have filed the suit for maintenance. Reliance has been placed upon the authority of the Supreme Court in Mst. Naziran v. The Collector, Sialkot and 2 others (1990 S C M R 803). It was further argued by the learned counsel that the jurisdiction of the Family Court to entertain a suit for maintenance of the wife was barred by the provisions of Muslim Family Laws Ordinance, 1961 and, for this reason also the suit filed by the petitioner was not maintainable. The learned counsel has in this behalf referred to the provisions of Section 5 of the Punjab Family Courts Act, 1964 and the Schedule annexed therewith. .

4. There is no dispute between the parties that the Nikah was solemnized on 16th June, 1985 at which time it was agreed that the respondent shall pay maintenance at the rate of Rs.300 per month, to his wife. It is so specifically stipulated in clause 20 of the Nikahnama. This stipulation was not made dependent upon the performance of Rukhsati nor was any such condition attached. In the written statement filed by respondent No.2, there was no averment that despite demand made by him, the wife had refused to perform her marital obligations or to live with him. That being so, the Additional District Judge was clearly in error in setting aside the decree by holding that as Rukhsati had not taken place, the petitioner was not entitled to any maintenance.

5. As regards the contention of the learned counsel for respondent No.2 that a wife can 0e for recovery of maintenance during the subsistence of marriage but cannot file any suit after the marriage has been dissolved, there does not appear to be much force in it. There can be no dispute that the marriage is a civil contract and any obligation arising thereunder is enforcible under the (3 law. Whether the suit for recovery of maintenance is filed during the subsistence of marriage or afterwards is of no significance, if during period for which maintenance is claimed the marriage subsisted. Reliance of the learned counsel on the above-cited precedent in Mst. Naziran Bibi's case is not apt for that there the dispute arose out of an application under the Muslim Family Laws Ordinance, 1961, which provides that a wife may apply for grant of maintenance against the husband, before the Arbitration Council. The plea that such an application can only be made during the subsistence of marriage is founded on the premises that after the dissolution of marriage, a wife becomes an ex-wife and husband an ex-husband and, therefore, she cannot invoke Section 9 of the Muslim Family Laws Ordinance, 1961. There appears to be a difference of opinion even on this aspect of the matter (vide Muhammad Najeeb v. Abdus Sattar and 6 others (1989 S C M R 119), but suffice it to say for the present, there is no such provision in the Punjab Family Courts Act, 1964, putting constraint on power of Court to grant maintenance during the subsistence of marriage only.

6. In support of the last argument, strength was sought from Section 5 of Punjab Family Courts Act, 1964 to contend that the Family Court had no jurisdiction to decree the suit for maintenance of the wife. The argument of the learned counsel is that as Section 9 of the Muslim Family Laws Ordinance, 1964, confers jurisdiction on the Arbitration Council to grant maintenance, the same relief cannot be granted by the Family Court constituted under the Punjab Family Courts Act, 1964, is the later enactment subjects itself to the Muslim Family Laws Ordinance, 1 61 as provided in Section 5 of the Act. This argument of the learned counsel cannot be accepted. Admittedly, there is no provision in the Muslim Family Laws Ordinance, 1961, which confers exclusive jurisdiction on the Arbitration Council to adjudicate upon the matters of maintenance. Section 9 is enabling provision which authorises the Arbitration Council to grant maintenance but it does not toke away the jurisdiction of other competent forums. The expression subject to the Muslim Family Laws Ordinance, 1961," in Section 5 of the Punjab Family Courts Act, 1964 cannot be construed as having taken away the jurisdiction of the Family Court in the matters of maintenance. The true scope of Section 5 is that if there be any conflict between the provisions of the Punjab Family Court Act, 1964 and the Muslim Family Laws Ordinance, 1961, the Ordinance shall prevail. It is a well-settled principle of interpretation that as far as possible the provisions of two statutes, if operating in the same field, have to harmonised and a conflict between the two, cannot be readily presumed. From this discussion, it becomes clear that a wife has the option of claiming maintenance either' by approaching the Arbitration Council under Section 9 of Muslim Family Laws Ordinance, 1961 or by filing a suit before the Family Court. There is thus no force in the argument of learned counsel for respondent No.2 that the suit for maintenance filed by petitioner before the Family Court was not competent. This view, is fortified by the observations of the Supreme Court in Masood Ahmad Malik v. Mst. Fouzia Farhana Quddus and others (1991 S C M R 681). As a result of what has been said above, this petition is accepted, the impugned judgment of the Additional District Judge dated 18th November, 19891 is declared to be without lawful authority and of no legal effect, with the result that the judgment and decree of the Family Court dated 29th May, 1989, stands restored with no orders as to costs. AA./S-917/L petition accepted