2003 PLP 1265 (MLD)

Writ Petition No.890 of 2003, decided on 14th April, 2003.

S.5 & Sched.

Constitution of Pakistan (1973), Art.199-- Constitutional petition

Respondent/lady filed suit for maintenance from January, 1998 till the expiry of Iddat period which was decreed-- Contention of the husband was that since the lady had been divorced before filing of the maintenance suit, she could neither file a suit for maintenance nor was she entitled to the same and Family Court had acted without jurisdiction by passing the decree for maintenance in favour of the lady

Validity

Lady was entitled to claim maintenance up to the expiry of Iddat period. Malik Ghulam Mustafa Kanwal for Petitioner. On 21-2-2002, the respondents Nos.1 and 2, wife and daughter respectively of the petitioner, filed a suit .far recovery of maintenance allowance. In the plaint it was stated that the marriage was performed on 13-11-1987 and respondent No.2 was born as a result of the said wedlock. On the last occasion, the said respondents were deserted in January, 1998 and on 18-1-2002 the petitioner served notice of Talaq. A sum of Rs.3,000 per month was demanded by each one of the respondents w. e. f. 1-1-1998. The respondent No. 1 limited her claim to the expiry of Iddat period. The suit was contested. Issues were framed. 'Evidence of the parties was recorded. Vide judgment and decree dated 22-2-2003 the learned Judge, Family Court, Pind Dadan Khan, awarded maintenance to respondent No. 1 at the rate of Rs.900 per month from January, 1998 till the expiry of Iddat period with reference to the Talaq served on 18-1-2002. The respondent No.2 was awarded Rs.500 per month w.e.f. January, 1998.

2. Learned counsel for the petitioner relying upon the cases of Muhammad Zairaf v. Mst. Safia Bibi and 3 others (2000 MLD 1900) and Mst. Shabnam Rashid v. District Collector and others (2001 CLC 961) argues that since the respondent No. 1 had been divorced before the filing of the suit, neither she could file a suit for maintenance nor was she entitled to claim any maintenance and as such the learned Judge, Family Court, has acted without jurisdiction while passing the decree to the said, extent.

3. I have already narrated the contents of the plaint above. It is in the plaint itself that the respondent No. 1 has claimed maintenance from January, 1998 to the expiry of Iddat period when a divorce notice was served on 18-1-2002. In the said case of Muhammad Zairaf it was found as a fact that Mst. Safia Bibi, the wife of said petitioner had been divorced and the notice was received in the office of Union Council, Ghora Gali on 3-10-1997. Now the decree in the said suit was passed on 3-4-1999 which was confirmed by a learned ADJ, Rawalpindi on 10-6-1999. According to the said decree a sum of Rs.1,500 per month was awarded as maintenance w.e.f. 1-9-1997. Thus his Lordship found that maintenance had been awarded for a period even after the expiry of Iddat period. Consequently the decree was maintained only to the extent of the period of expiry of Iddat period and it was set aside for the period beyond that. The case of Mst. Shabnam Rashid arose out of proceedings under the Muslim Family Laws Ordinance, 1961 and as such has no nexus with this case arising out of proceeding under the Family Courts Act, 1964. No other pointed has been urged. The writ petition is frivolous and is dismissed in limine. U-52/L Writ petition dismissed.