1989 PLP 380 (MLD)

Ch. Rashid Ahmad for Petitioner. Nemo for Respondents. Date of hearing: 8th February, 1989. In this Constitutional petition order dated 1‑4‑1985 passed by the Deputy Commissioner/Collector, Sialkot, dismissing the revision petition of the petitioner against the order dated 9‑12‑1982 passed by the Chairman, Arbitration Council, QiIla Suba Singh Tehsil Pasrur, District Sialkot, directing the petitioner to pay an amount of Rs. 400 pay month to respondent No. 3 as her maintenance allowance from September 1981 and an amount of Rs. 100 per month as maintenance allowance to his son.

2. Learned counsel for the petitioner argued that the Arbitration Council had no jurisdiction to pass any order for payment of maintenance allowance to the minor son of the petitioner as under section 9 of the Family Laws Ordinance, 1961, the Arbitration Council has been empowered to pass an order regarding maintenance allowance of wife only. His argument was that even the wife i.e. respondent No. 3 could not have been awarded maintenance allowance from September, 1981 because in the application moved by her on 28‑8‑1982 no prayer was made therein for maintenance allowance for any period prior thereto.

3. I would take up the second argument first. The copy of the application made by respondent No. 3 on 28‑8‑1982 before the Arbitration Council has been placed on the file as Annex: `A'. In para. 3 of this application she has specifically asserted that an year, before the petitioner turned her out of his house after beating her and from that time she was living in the house of her parents with the minor son who was aged about two years. This allegation clearly makes out a case that the maintenance allowance was being claimed from one year prior to the date of making the application. The law looks to the substance not to the form. The petitioner did not enter appearance before the Arbitration Council which was constrained to get himself served through proclamation in the newspaper. The Arbitration Council after considering the evidence produced before it passed he impugned order for payment of maintenance allowance to respondent No. 3 at the rate of Rs. 400 per month from 1‑9‑1981 and for the minor it was ordered that the petitioner should pay an amount of Rs. 100 per month.

4. So far as the argument that under section 9 of the Family Laws Ordinance, the Arbitration Council could not pass an order for awarding maintenance allowance to minor children is concerned, the same appears to be correct. I am not inclined in my discretion to interfere in that part of the order as also the part of order granting past maintenance to respondent No. 3 from 1‑9‑1981, as the conduct of the petitioner is not such who could be given any relief in equity. The petitioner has approached this Court for denying the right of his minor son to get maintenance allowance. Irrespective of the residence of the minor child, under the law it is the duty of the petitioner to maintain him. Apart B from this the said child has not been impleaded as one of the respondents in this writ petition and on that score also no relief can be granted to the petitioner.

5. Learned counsel for the petitioner, however, brought to my notice that so far as respondent No. 3 is concerned she has already been paid what was awarded to her and nothing remains due from the petitioner so far as her maintenance allowance as ordered by the Arbitration Council is concerned.

6. The order of the Arbitration Council is just and proper. The writ petition has no merits which is hereby dismissed without any order as to costs. H.B.T./M‑1146/L??????????????????????????????????????????????????????????????????????????????? Petition dismissed.