1991 PLP 1570 (CLC)

Nemo for Respondents Nos. 2 and 3 Date of hearing: 20th February, 1991. The petitioner through this Constitutional petition has challenged the orders dated 6‑6‑1985 and 3‑5‑1988 of respondents Nos.2 and 3 respectively.

2. The relevant facts are that the petitioner and respondent No.l were married in accordance with the Muslim rites on 11‑2‑1983. It seems that their relations became strained. The petitioner pronounced the divorce and sent notice dated 2‑3‑1985 to respondent No.2, who filed the same vide order dated 5‑3‑1985 on the pretext that the petitioner has not presented the notice himself. Thereafter the respondent No.l filed a petition on 24‑3‑1985 for grant of maintenance at the rate of Rs.800 p.m. w.e.f. 1‑6‑1984. The petitioner resisted this application. The respondent vide order dated 1‑6‑1985 fixed the maintenance at the rate of Rs.800 per month from 1-6‑1984 till the marriage was validly dissolved. The petitioner challenged this order through revision petition before respondent No.3, who dismissed the same vide order dated 3‑5‑1988. The petitioner has now riled the present petition, which was admitted to regular hearing arid notices were issued to the respondents. The respondent No.l alone has appeared and contested the petition while the other respondents were proceeded ex parte.

3. The learned counsel for the petitioner in support of the petition argued that the divorce became effective on 1‑6‑1985, therefore, no maintenance can be allowed to the petitioner beyond this date. The next submission is that the petitioner is working as a machine operator and his salary is only Rs.1,000, therefore, quantum of maintenance is excessive and illegal. The learned counsel for the petitioner submitted that the divorce became effective after the expiry of period of 90 days. This legal position is not effected whether any proceedings were conducted by respondent No.2 on the notice and whether the copy of the notice of divorce was sent to the wife or not? In this behalf learned counsel has referred to the cases of M. Zakriyya Khan v. Aftab Ali Khan and another P L D 1985 Lah. 319), Muhammad Alamgir Hashmi v. Chairman Union Council and others (1987 C L C 2230), and Ghulam Nabi v. Farrukh Latif and 2 others (1986 S C M R 1350).

4. On the other hand, learned counsel for contesting respondent has argued that for a valid divorce there are three prerequisites, namely, pronouncement of divorce, intimation of the factum of divorce to the Chairman and wife. It is submitted that even if, one step is missing divorce will not become effective. The learned counsel in this behalf has referred to the cases of Inamul Islam v. Hussain Bano and 4 others (P L D 1976 Lah. 1466), Lal Din and 2 others v. Mst. Zeenat Bibi and 4 others (1987 C L C 587), Manzoor Hussain v. Chairman, Arbitration Council, Union Council Jalal, Tehsil and District Gujranwala and 4 others (1988 C L C 2061) and Mst. Nasreen Ashraf v. Muhammad Iqbal (1988 C L C 914). The learned counsel for the petitioner in reply to the arguments of the contesting respondent has placed copy of the plaint in the suit for recovery of dowry titled Surraya Jamil v. Iftikhar Ahmad to urge that copy of the divorce notice was sent to her and received by her.

5. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record. The first question for determination is when the divorce became effective. Although the respondent No.l has denied the receipt of the notice but it is clear from para.5 of the plaint of the suit filed by her for recovery of dowry that she received this notice. This para reads as under:‑

"That now the defendant divorced the plaintiff on 2‑3‑1985:" The next question which arises is what is the quantum of maintenance. The respondent No.l has claimed Rs.800. The same was allowed by respondents Nos.2 and

3. It was argued on behalf of the petitioner that his total emolument is Rs.1,000 but there is nothing on record of this writ petition to prove this assertion. It is a factual controversy. The same stands concluded by concurrent findings of fact recorded by the competent authorities. The last question which falls for determination is for what period the maintenance should be granted? A The admitted position is that the divorce became effective on 1‑6‑1985, therefore, the petitioner was liable to provide maintenance to his wife respondent No.l upto 1st June, 1985 together with Iddat period of three months. This way she will be entitled to maintenance upto 31st August, 1985.

6. The upshot of the above discussion is that this petition is partially allowed. The result is that the respondent is held entitled to receive maintenance at the rate of Rs.800 per month upto 31‑8‑1985. The remaining part of her claim is illegal, therefore, rejected. There is no order as to costs. H.B.T./T‑249/L??????????????????????????????????????????????????????????? Order according