1994 PLP 2403 (CLC)

(h) Muslim Family Laws Ordinance (VIII of 1961)

S. 9

Past maintenance

Decree for past maintenance granted by Arbitration Council was completely within law

[Syed Hamid Ali Shah v. Mst. Razia Sultana 1991 CLC 766 dissented from]. Syed Hamid Ali Shah v. Mst. Razia Sultana 1991 CLC 766 dissented from. (i) Muslim Family Laws Ordinance (VIII of 1961)

S. 9

Past maintenance

Divorced wife could file an application for maintenance for the period, the marriage was subsisting and husband was under obligation to maintain her

Arbitration Council in such case was very well empowered by law to specify the amount payable by the husband. Miss Imrana Parveen Baluch for Petitioner. Muhammad Abbas Mirza for Respondent No.

1. The petitioner has invoked the extraordinary Constitutional jurisdiction of this Court vide this petition. He states that he was married with respondent No. 1 in the year 1984 and out of the wedlock two children were born who are in the custody of respondent No.

1. The differences arose between the parties; ultimately the parties are living in separation and the petitioner has allegedly sent divorce to the respondent No. 1 who has accepted the same. The respondent No. 1 moved an application to the Chairman, Arbitration Council, Mian Mir, Lahore for maintenance allowance which was accordingly decreed from August 1989 to August 1992 i.e. 37 months' maintenance in the sum of Rs.1,500 per month total Rs.55,

500. The period for payment of the aforesaid maintenance allowance was fixed as one month and the future maintenance was fixed as Rs.1,500 per month. This amount was purely the maintenance allowance for the respondent No. 1 herself. The ex parte proceedings were conducted by the Chairman, Arbitration Council after serving upon the petitioner a registered notice on 9-7-1992 which he received. He did not appear on the date fixed for hearing but gave an application expressing his inability to appear before the Arbitration Council due to accident. He appeared on 6-8-1992 but again failed to appear on the next date that is 13-8-1992 although he was bound down by the Chairman to appear on the above date. Thus the Chairman has rightly taken ex parte proceedings against him.

2. The District Collector, Lahore vide order dated 14-5-1994 rightly dismissed the appeal of the petitioner which was 16 months time-barred.

3. The petitioner has filed the present petition challenging both the impugned orders and decrees that the same are passed without lawful authority and jurisdiction and that the period of maintenance is wrongly calculated and the respondent has fraudulently and in connivance with the Chairman, Arbitration Council got a decree which is the outcome of mala fide on the part of the respondent. Further argued that the order of the Chairman is not a speaking order and the income of the petitioner has not been kept in mind while passing the impugned ex parte decree. Vide the impugned decree the Chairman, Arbitration Council allowed the maintenance allowance from August 1989 till August 1992 (37 months) at the rate of Rs.1,500 per month and fixed Rs.1,500 per month as maintenance allowance of the respondent for future.

4. The petitioner has invoked the writ jurisdiction of this Court. I am afraid that the Constitutional jurisdiction is sparingly exercised in respect of the finding of fact by the Courts below. Even the Supreme Court has refused to interfere with the finding of the Courts below. However, as it is a proposition of law, I in exercise of extraordinary jurisdiction take a judicial note whether an Arbitration Council duly constituted under the provisions of section 9 of the Muslim Family Laws Ordinance, 1961 can grant a decree for the past maintenance as claimed by the respondent. .

5. Previous to Muslim Family . Laws Ordinance, 1961 section 488 of Cr.P.C. was available for the grant of maintenance to any woman claiming maintenance allowance. She had an additional remedy to file a civil suit for the said claim of maintenance but after the promulgation of the Muslim Family. Laws Ordinance and the West Pakistan Family Courts Act, 1964, a woman claiming maintenance has two remedies available to her. She has a remedy to file a maintenance suit before a Family Court under the provisions of West Pakistan Family Courts Act, 1964 and she has an additional remedy of claiming maintenance under section 9 of the Muslim Family Laws Ordinance, 1961. Here the wording is somewhat different. Section 9 reads as under:-- "

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 Arbitration 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. "

6. So far as the past maintenance is concerned the Statute is silent and when a Statute is silent the Court interpreting the Statute must keep in mind the I intention of legislature and the intention of the legislature by adding aforesaid section 9 was to grant a woman maintenance allowance whose husband has failed to maintain her adequately. This is rather an expeditious remedy available to a woman claiming maintenance allowance and this remedy is also available when there are more wives than one. In the instant case the respondent has two children out of the wedlock; they are studying at school. The petitioner has married again and according to the respondent has been cruel enough not to pay a single penny to the respondent who is a destitute woman with no means of earning. She is depending upon her brother who is also a married person.

7. There are precedents where the Supreme Court has held that the Arbitration Council is competent to award maintenance for the past subject, of course, to the question of limitation. Article 120 of the Limitation Act applies to the facts of the present case. Reliance in this behalf has been placed on Muhammad Nawaz v. Mst. Khurshid Begum etc. (PLD 1972 SC 302). The basic principle was enunciated in Rashid Ahmad Khan v. Mst. Nasim Ara (PLD 1968 Lahore 93) wherein it was held that the husband should maintain the wife starting from the matrimonial tie and this right can be enforced with regard to the period of matrimonial life.

8. In a case reported as Syed Hamid Ali Shah v.. Mst. Razia Sultana (1991 CLC 766), the learned Single Judge has held that the past maintenance cannot be maintained under the provisions of section 9 of the Muslim Family Laws Ordinance, 1961. I am afraid, I beg to differ from the view taken in that judgment 'of the learned Single Judge because section 9 of the Muslim Family Laws is a beneficial provision of law for a woman claiming maintenance. When the intention of the legislature is to make the beneficial provision of law to a person, the nearest interpretation of law to the benefit of a person claiming under the said provision should be adopted by the Court.

9. Thus the present decree passed by the Arbitration Council is completely within law.

10. The petitioner has placed on record a photo copy of the divorce deed countersigned by the learned counsel of the petitioner that he has divorced the respondent on 20-7-1990. He has not produced any proof of the acceptance of this divorce deed by the respondent or any registered notice of the same being sent to the respondent. He admitted in Court that he has not sent a notice of divorce deed under the mandatory provision of section 7 of the Muslim Family Laws Ordinance, 1961 to the Chairman of the Union Council. This sole document not supported by authentic evidence is of no use to the petitioner. On the other hand, this shows the mala fide and overcleverness of the petitioner to defeat the claim of maintenance allowance of his wife who is also the mother of his two children. She also denies the factum of divorce given to her. Even otherwise a divorced wife can also file an application for the period the marriage was subsisting and the husband was under the obligation to maintain her and the Arbitration Council is very well empowered by law to specify the amount payable by the husband.

12. Keeping in view all the legal propositions in the instant petition, I hold that the Courts below have rightly passed the orders and decrees. I dismiss this petition having no force of law. However, in view of substantial justice, I direct that the petitioner will pay the amount of decree in five instalments, in a Scheduled Bank of Pakistan, within a period of five months starting from September, 1994, on or before 15th of each month, in the name of the respondent failing which the respondent has a right to execute her decree and recover the amount in the manner- prescribed by law.

13. The petitioner's learned counsel states that the petitioner has given security bond of Rs. one lac. She requested for the release of the said security bond. In the interest of justice, I direct that after paying the whole amount within a span of period of five months the petitioner can release his bond in question from the Court of competent jurisdiction. A.A./A-676/L Petition dismissed.