P L D 1966 (W (PLP)

MUHAMMAD AFZAL CHEEMA, J.‑This petition under Article 98 of the Constitution seeks quashment of two orders, Annexure `A' and `C'. The first order dated 23rd of May 1962, was passed .by the Chairman, Union Committee No. 2, Gujrat, whereby he allowed respondent No. 1 and her daughter a maintenance allowance at the rate of Rs. 70 per mensem, and directed the petitioner to pay to the respondent Rs. 718 in lump sum as arrears of maintenance from 15th July 1961, i.e., the date of the enforcement of the Family Laws Ordinance, to 23rd May 1962, the date of the disposal of the petition. The petitioner was further directed that he should continue to make payment in future at the stipulated rate of Rs. 70 per mensem. The second impugned order dated 12th November 1963, was passed by the Collector Gujrat, dismissing the petitioner's revision as time‑barred.

2. The facts giving rise to this Writ Petition may be summa rised as follows: The petitioner Sh. Sardar Muhammad who is a Head Con stable in the police department was married to respondent No. 1 on 24th May 1957. The spouses lived happily for about a year and a quarter and a daughter was born to them. According to the respondent's allegations, the petitioner brought her to Gujrat, left her with her parents and never bothered himself about her again. On 7th February 1962, respondent No. 1 applied .to the Chairman Union Committee No. 2, Gujrat under section 9 of the Family Laws Ordinance, in which she claimed dower money to the tune of Rs. 4,000, monthly allowance at the rate of Rs. 80 per mensem in addition to the jewellery, clothes, furniture, etc., which was given as dowery at the time of her marriage. It appears that the Chairman issued three notices to the petitioner under registered cover at his home address in Union Committee No. 3, in Jalalpur Jattan, district Gujrat, followed by two notices sent to him through the Chairman of that Committee. According to the report of the Chairman, Union Committee, Jalalpur Jattan, one notice was affixed on the door of the peti tioner's residential house. Finally, a notice was also published in the daily `Kohistan' in its issue dated the 30th of March 1962. In spite of all this, the petitioner failed to respond and as such an Arbitration Council was constituted without a representative of the petitioner against whom ex parte proceedings were taken. As regards the respondent's claim for the dowery and jewellery she was directed to approach a competent Court, but her prayer for maintenance was allowed as stated earlier. This order was unsuccessfully challenged in revision by the petitioner before the Collector on 2nd October 1963, who dismissed his petition on 12th November 1963, as time‑barred.

3. The learned counsel for the petitioner has raised the following contentions before us: (1) That the allegations against the petitioner were those of total neglect and refusal to maintain and as such, section 9 of the Family Laws Ordinance which deal with only cases of inadequate maintenance could not be invoked. (2) That the first impugned order was illegal inasmuch as the proceedings were taken against the petitioner ex pane by an Arbitration Council which was not properly constituted, besides the order appears to have been passed by the Chairman in his personal capacity; (3) That the date of the application before the Chairman was 7th February 1962, whereas the arrears have been granted from 15th July 1961, which was illegal inasmuch as no decree could be passed for past maintenance under Muhammadan Law. Reliance was placed on I L R 6 Cal. 631, Baillie 447 and Hadaya 142. (4) Lastly, that the impugned order clearly stated that the allowance of Rs. 70 per mensem had been granted both for the petitioner's wife as well as his minor daughter whereas no provision existed in the Family Laws Ordinance for grant of allowance to a child.

4. In order to appreciate the first contention raised by the learned counsel, the two relevant provisions, i.e., the one under section 488 of the Code of Criminal Procedure, and the other in section 9 of the Family Laws 'Ordinance will have to be consi dered in juxtaposition, and are reproduced below: Section 488 of the Criminal Procedure Code: "488. (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Sub --Divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such build, at such monthly rate, not exceeding four hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs. (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance. (3) . . . . . . . . ." Section 9 of the Muslim Family Laws Ordinance, 1961: "

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 the Chairman who shall constitute an Arbit ration 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. (2) A husband or wife may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision of the certificate, in the case of West Pakistan, to the Collector, and in the case of East Pakistan to the Sub‑Divisional Officer concerned and his decision shall be' final and shall not be called in question in any Court. (3) Any amount payable under subsection (1) or (2), if not paid in due time, shall be recoverable a: arrears of land revenue." The expression used in section 488, Cr. P. Code is "neglects or refuses to maintain his wife", whereas section 9 of the Ordi nance says: "fails to maintain his wife adequately". The two expressions are differently worded and might seemingly have different connotations, but on a close examination the difference between the two is reduced to nothingness. Considering language used in section 488, if a person agrees of offers to give to his wife an inadequate allowance say Rs.20. per mensem as against a reasonable amount of Rs. 100 per mensem, his agreement to pay the inadequate sum would certainly amount to a refusal to maintain, as maintenance would mean an adequate, proper and reasonable maintenance, and a person offering an inadequate allowance cannot on that pretexi escape or avoid the invocation of section 488, Cr. P. Code. Similarly, although the expression used in section 9 of the Muslim Family Laws Ordinance mentions only the failure on the part of the husband to maintain his wife adequately, a case of total absence of maintenance or refusal to maintain cannot be excluded from the purview of this section as a case of total absence of maintenance does not become identical with one of adequate maintenance. A case of refusal to maintain at all would be a still worse form of inadequate maintenance. In fact, the word adequately' has been employed only to emphasise that the main tenance should be proper and reasonable, and that an inadequate maintenance may be considered no maintenance at all. It is, a well settled principle of interpretation of statutes that the inter, predation should be beneficial and one which should advance the f object of legislation and not the one which should lead to its frustration. Keeping in view the background of thin Muslim Family Laws Ordinance which was enacted on the recommenda tions of the Commission on Marriage and Family Laws. giving rise to country‑wide controversy, we are in no manner no doubt that the underlying object in making this provision was to furnish a simpler, cheaper and more expedient remedy to neglected wives than the one which was already available to them under section 488 of the Code of Criminal Procedure. He certainly does not appear to have been the intention of the law giver to classify cases of maintenance into two different catego ries, i.e., those of a total absence of maintenance and those of inadequate maintenance. We have thus no hesitation in saying that a case of inadequate maintenance also includes a case of total absence of maintenance and the new remedy now made available to a neglected wife under the Muslim Family Laws Ordinance is not alternative iii nature, so as to be invoked by inadequately maintained wives only, but has been made available in addition to a similar remedy already provided in section 488, Cr. P. Code. The two remedies in our view are available to all cases of lack of main tenance whether adequate or inadequate, and we see no reason to hold that both relate to different kinds and categories of such cases. Coming now to the second contention, regarding the ex parte proceedings and improper constitution of the Arbitration Council, the argument is patently devoid of force as the impugned order clearly shows that every effort was made to serve the petitioner whose substituted service appears to have been properly effected. In his absence there was no question of the nomination of his representatives on the Arbitration Council, and under sub- rule 5(3) of the relevant Rules, proceedings before the Arbitration Council cannot be vitiated on account of the failure of any person to nominate his representative. No doubt, in the I impugned order first person has been used by the Chairman giving, the impression as if it were an order passed by him in an individual capacity and not by the Arbitration Council as such, butt this seems to us to be merely due to inadvertence. The conten tion has no force.

5. In the next contention, it is argued by the learned counsel that under the Muhammadan Law, a wife is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement, and as such, the Arbitration Council was not competent to grant allowance to respondent No. 1 from 15th July 1961; i.e., the date of the enforcement of the Family Laws Ordinance. The point to be determined by us is whether an Arbit ration Council can issue certificate in respect of arrears of maintenance, or to put it more precisely from what date could an allowance be allowed to a neglected wife; from the date when the cause of action arises or the date when she makes the applica tion before the Arbitration Council or the date on which the order is made in her favour. Placing reliance on Abdool Futteh Moulvie v. Zabunnessa Khatun (I L R 6 Cal. 63), it was argued by the learned counsel for the petitioner that maintenance could only be paid to respondent No. 1 from the date of the decree and not even from the date of making application, i.e., 7th February 1962. In this D. B. authority, reliance has been placed on the following observation in Baillie's Digest at page 443 "When a woman sues her husband for maintenance for a time antecedent to any order of the Judge or mutual agreement of the parties, the Judge is not to decree maintenance for the past." Reference has also been made to the Hedaya. We have carefully considered this question and it would be advantageous to repro duce the following passage from Baillie which lends further support to this view: "When maintenance has been decreed against a husband at so much the month, or the parties have come to a mutual agreement for so much each month, and several months are allowed to pass without his giving her anything, and she in the meantime raises her maintenance on credit, or disburses it out of her own property, and then either the husband or the wife happens to die, the whole of what has been so raised or disbursed drops, or can no longer be recovered. And in like manner, if he should repudiate her, any arrears of maintenance that may have accumulated after the decree of the Judge are irrecoverable."

6. A similar view has been expressed at page 142 of Hamilton's Translation of Hedaya: "Arrears of maintenance not due unless the maintenance have been decreed by the Kazee or the rate of it previously determined on between the parties. If a length of time should elapse during which the wife has not received any maintenance from her husband, she is not entitled to demand any for that time, except when the Kazee had before determined and decreed it to her, or where she had entered into a composition with the husband respecting it, in either of which cases she is to be decreed her maintenance for the time past, because maintenance is an obligation in the manner of a gratuity, as by a gratuity is understood a thing due without a return, and maintenance is of this description, it not being held (according to our doctors) to be as a return for the matrimonial propriety; and the obliga tion of it is not valid but through a decree of the Kazee, like a gift, which does not convey a right to possession but through seisin, which establishes possession; but a composition is of equal effect with a decree of the Kazee, in the present case, as the husband by such composition, makes himself respon sible, and his power over his own person is superior to that of the Magistrate. This reasoning does not apply to the case of dower, as that is considered to be a return for the use of the wife's person.

7. The proposition cannot be questioned that it is incum bent on a Muslim husband to maintain his wife, subject of course to her loyalty and readiness to perform marital obligations. The following passage from Ameer Ali's Muhammadan Law may be reproduced with advantage in which reliance has been placed on Fatawa‑i‑Alamgiri and Raddul Muhtar: "If the husband be a minor and the wife 'an adult, and the incapacity to complete or consummate the contract be solely on his part, she is entitled to maintenance. If the minor has no property, the obligation of maintaining the wife devolves on his father with a right of recovery against him when he is in a position to repay the amount expended on his behalf. When both husband and wife are minors and cohabitation is impos sible, there is no liability, for maintenance. It makes no difference in the husband's liability to maintain the wife, whether he be in health or suffering from illness, whether he be a prisoner of war or undergoing punishment, "justly or unjustly", for some crime, whether he be absent from home on pleasure or business, or gone on a pilgrimage, and whether he be rich or poor. In fact, as long as the status of marriage subsists and the wife is subject to the marital power, she is entitled to maintenance from him. Nor does she lose her right by becoming afflicted with any disease after marriage. But when she becomes ill before she has taken up her abode in the conjugal domicile there is no obligation on the husband to provide for her maintenance.

8. A woman is also entitled to her maintenance though refusing herself to her husband on the ground that he had not paid her dower, Mulla in his Principles of Muhammadan Law at page 238, 1961 Edn. has observed as follows: `Husband's duty to maintain his wife. The husband is bound to maintain his wife (unless she is too young for matrimonial intercourse) so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him, or is otherwise disobedient. unless the refusal or disobedience is justified by non‑payment of proper dower, or she leaves the husband's house on account of his cruelty." Thus, it is abundantly clear that the husband's obligation to maintain his wife commences with the performance of marriage subject to certain conditions. But the authorities cited earlier and relied upon by the learned counsel for the petitioner seem to lay down in un-mistakeable terms that in the absence of an agreement between the spouses or a decree by the Kazee, a wife is not entitled to a decree for past maintenance. The reasoning seems to be that if the wife has somehow managed without maintenance and has not cared to approach the Kazee, a decree for past maintenance may be justifiably refused to her. In other words, the argument is that a person who does no: care to promptly seek a legal remedy or has some how managed to do without it may be afforded a relief only when he seeks it and not for an earlier period of time. This position seems to be rather inconsistent with the view expressed in the above cited authorities that normally obligation to maintain a wife starts from the time of marriage.

9. It appears necessary to appreciate the difference between dower for which the word' Ager " (Singular) or "Aagur" (plural) has been used in the Qur'an and maintenance or "Nufqua" Marriage in Islam being in the nature of a contract, dower is the consideration agreed between tine parties which the husband has to pay to the promptly or subsequently in accordance with the terms of the agreement. On the contrary, maintenance is an obligation one of the essential incidents of marriage, liable to suspension or forfeiture under certain circumstances. The two therefore, proceed on entirely different bases. So far as the payment of dower is concerned, once it is stipulated, its payment becomes obligatory on the husband and even if the wife is divorced by the husband before she is touched, he is bound to pay half of the dower money as would be clear from the following verse No. 236 of Sura Albaqra. It could of course, be quite different if the wife voluntarily foregoes the dower.

10. As against this, the obligation of the husband to maintain his wife has been derived from an earlier verse No. 232 of the Sura Albaqra which enjoins upon the father of a suckling child to feed and clothe his wife according to usage: This finds further support from the famous tradition of the Holy Prophet (peace be upon Him): The argument in favour of forfeiture of arrears of mainten ance for the past seems to have been based on the assumption that "maintenance is an obligation in the manner of a gratuity Almuwaqat" i.e., an ex gracia grant which is paid by way of sympathy and charity which cannot be claimed as of right. This is "clearly laid down in Hamilton's Translation of Hedaya of which the relevant portion has been reproduced earlier in this judgment. In all humility and with the utmost respect we find it difficult to endorse this view as the consensus of opinion as shown from the authorities cited earlier seems to be that the maintenance of a wife is the bounden duty of a husband, irres pective of his minority, illness or imprisonment or the richness of the wife, so much so that the obligation devolves on the father of a minor husband with a right of recovery against him when he is in a position to repay the amount as held by Amir Ali on the authority of 'Fatawa‑i‑Alamgiri' and Radd‑ul‑Muhtar, alluded to earlier. It is thus difficult to say that it is in the nature of an ex gracia payment which cannot be claimed for a past period of time.

11. The question of the forfeiture or suspension of mainten ance with the passage of time has been discussed by Ibne Qayyum under a separate heading, at pages 149‑SO of the. Fourth Volume of his famous work Zaadul Maad 2nd Edition, published in Egypt. It is mentioned therein that it was a disputed question. Imam Abu Hanifa the founder of the Hanfi. School of thought `was definitely is favour of the forfeiture of arrears of maintenance, while on the contrary, the three other, Jurists, namely, Imam Shaafi, Imam Ahmad Hambal and Imam Malik, unanimously, held the view that the arrears of maintenance being a just charge could be realised from the husband. It would be advantageous to reproduce the original version in Arabic in this regard: (People have differed on three versions on the question of forfeiture of maintenance of wives and relatives: whether it stands forfeited or not in both cases or whether maintenance of relations alone forfeits and not that of wives. One view is that it forfeits in both cases with the passage of tile and this is the view of Abu Hanifa, and one of the authorities is from Ahmad. The second view is that it does not stand forfeited in either cases, if the relative is a child. This is the Shaafi view. The third view is that it is the maintenance of the relative and not of the wife that forfeits. This is the generally accepted view and was held by Shaafi, Ahmad and Malik).

12. The main argument which formed the basis of the Hanafi view is that Hinda, the wife of Abu Sufian, approached the Holy Prophet complaining about her inadequate maintenance by Abu Sufian, when the Prophet allowed her husband so much as was sufficient to maintain her. From the absence of any reference to past maintenance, it is argued from this that the same stood forfeited. This argument is met by the other school of thought by a counter argument that since Hinda never claimed arrears of maintenance, as such, there was no occasion for the Holy Prophet to allow her a relief which was never prayed for. Another incident on which both sides seem to have relied in support of their respective views is that Caliph Umar wrote to his army officers in distant countries that the Muslim soldiers who were away from their wives should be ordered either to pay maintenance to their wives or divorce them. It was further directed that in the event of divorce they should also remit arrears of past maintenance. It is not disputed that no exception was taken to this directive of Caliph Umar. The argument of the Hanifites is that the payment of arrears was ordered only in case of divorce and not otherwise. On the contrary it is argued by the other schools of thought that this direction of Caliph Umar amounts to a clear dictum in favour of the validity of past maintenance and only in the event of divorce was it insisted that it should be sent along with the divorce, and as such, it does not necessarily mean that it stands forfeited if the wife is not divorced. Further support is lent to the latter view from the fact that the competency of the Kazee to grant maintenance for the past has also been admitted by the Hanafi school of thought as is clear from the following Heading of the excerpt from Hamilton's Hedaya quoted earlier which reads: "Arrears of maintenance not due unless have been decreed by the Kazee or . . . . ." Thus the competency of the Courts of today which have stamped into the shoes of the Kazees for the purposes of adjudication of these matters flows as a necessary corollary there-from. The mere fact that a neglected wife has been hesitant in promptly coming to the Court or has been pursuing alternative remedies out of Court cannot in all fairness be so construed as to deprive her of the right of maintenance from the day when the cause of action accrued to her. The Courts have thus the jurisdiction to grant such maintenance subject of course to considerations of limitation and the relevant circumstances of each case, and we hold accordingly.

13. Even if a different view may 'be taken from this, and the period intervening between the time of the accrual of the cause of action and of filing the suit is excluded there can be no difference of opinion on the grant of maintenance to a neglected wife from the date she files an application in Court. This position is not inconsistent with the one taken by the Division Bench authority I L R 6 Cal. 631 based on Baillie's Hedaya, and the apparent inconsistency if any is capable of being easily recon ciled. In the earlier days when Kazees used to adjudicate upon the rights of the litigants and performed the same functions which the Courts are now called upon to perform today, a complainant could get expeditious relief without loss of time, and it was inconcievable that a petition could linger on for months and years, as it often happened in civil litigation of this kind in this country particularly before the promulgation of the Muslim Family Laws Ordinance. Thus in those ‑ days there was no intervening period between the date of the filing of the suit and the date of passing .of the decree, and the gap if any would be negligibly small. That promptitude is certainly very difficult, if not impossible to achieve in the, complicated legal system and complex social set up of a much more sophisticated society of today where the Courts have found it difficult to cope with the ever‑increasing volume or multifarious litigation.

14. In the instant case, maintenance was allowed to respondent No. 1 from 15th July 1961, i.e., the date of the promulga tion of the Muslim Family Laws Ordinance. It was argued by the learned counsel for the petitioner that by that time, even the relevant rules relating to the constitution of the Arbitration Council and procedure to be followed by it had not yet been framed; which came into existence only on the 20th of July 1961; and as such, the order could not be maintained. Having held in favour of the competency of the Court to grant arrears of maintenance we see no force in this contention, as once the respondent is found entitled to maintenance and it is established that the cause of action accrued to her before the promulgation of the Muslim Family Laws Ordinance, we see nothing wrong with the impugned order granting her arrears with effect from the date of the promulgation irrespective of the fact that the rules were framed sometimes later. In these circumstances, the right would accrue to the respondent from the 15th of July 1961, i.e. the date of the promulgation of the Ordinance, as retrospectively of the rules of procedure could be inferred from that date. The relevant date in fact, is the date of enforcement and not the date on which the Rules were framed, if it had been the inten tion of the Legislature to make the Ordinance operative with effect from the date of framing of Rules it would have clearly said so. In the absence of such a provisions, the retrospectivity of the Rules from the date of enforcement of the Ordinance can be safely presumed.

15. The next point, which is the last contention raised by the learned counsel for the petitioner, has obviously lot of force in it: and we are straightway inclined to concede that position Muslim Family Laws Ordinance contains no provisions for the maintenance of children unlike the one contained in section 488, Cr. P. C. Section 9 in the relevant section which only deals with the maintenance of neglected wives. This does not appear to us to be an omission on the part of the law‑giver, as the remedy provided in section 9 is made available in addition to the one already in existence under section 488 of the Cr. P. C. Since the respondent invoked section 9 of the Muslim Family Laws Ordinance, she had obviously no right to any maintenance allowance for her minor daughter. As the stipulated allowance at the rate of Rs. 70 per mensem was fixed by, the Arbitration Council for both the respondent as well as her daughter, it cannot be sustained under the law, and as such a patent illega lity cannot be allowed to be perpetuated merely because the order was challenged in revision beyond limitation.

13. For the foregoing reasons, we accept the petition, quash the impugned orders and remand the case to the Arbitration Council concerned for deciding afresh according to law the allowance which should be paid to the Respondent's wife. The parties are left to bear their own costs. K. B. A. Petition accepted.