2004 PLP 473 (CLC)

(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑ ‑‑‑‑‑S. 5 & Sched.‑-‑Constitution of Pakistan (1973), Art.199‑‑ Constitutional petition‑‑‑Maintenance for children, quantum of‑‑ Fixation of such maintenance‑‑‑Islam does not compel a person to do an act beyond his capacity‑‑‑Salary of father cannot be attached beyond half of the same‑‑‑Social status of the man and level of his legitimate financial sources, which are eminent factors for deciding the quantum of maintenance, shall not be ignored‑‑‑Where the Family Court had not dilated upon said aspects of the case with realistic approach nor the evidence was appraised with due precision, though the man had given oral account of the income while the lady had not produced the evidence in contrariety, High Court, in view of the income of the man, reduced the quantum of maintenance accordingly‑‑‑Amount which the man had been paying to his wife when she was living with her father, was not enough to establish his legitimate income. Muhammad Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945 and M. Saleem Ahmad Siddiqui v. Mst. Sabira Begum and others 2001 YLR 2329 rel. (b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑ ‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑ Constitutional petition‑‑‑Maintenance for breast‑feeding the suckling baby at the time of divorce to the mother of the baby‑‑‑Legitimacy of the child was not contested‑‑‑Mother was entitled to maintenance for breast feeding the suckling baby for two years even after the period of Iddat for breast feeding the babe of the man who was a man of sufficient means. Al‑Qur'an: Surah 2, Al‑Baqara, Verse 233 rel. (c) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑ ‑‑‑‑S. 5 & Sched.‑‑‑Muslim Family Laws Ordinance (VIII of 1961), S.9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Divorce‑‑Record showed that father of the husband had undertaken, during the proceedings, that if his son will take any step which may give mental torture or cruel treatment to his wife or the husband will not perform matrimonial relationship he will pay Rs.4,00,000 to the wife‑‑ Effect‑‑‑Held, even the equity and natural justice demanded that the wife, who was neglected throughout by her husband and who was divorced by him at his whims and caprice and she was left alone at the mercy of cruel circumstances in a male dominated society, without any source of income, should be maintained by the divorcing husband who had acted without justification‑‑‑High Court observed that Legislature, in Pakistan having the supreme power to enact and legislate law, may, if so, deemed fit, look into this aspect of the matrimonial life and make amendment in S.9, Muslim Family Laws Ordinance, 1961 enabling the Chairman, Arbitration. Council to grant maintenance to a destitute divorced wife and may enact separate provisions of law in the same Ordinance. Al‑Qur'an: Sura 2; Al‑Baqara, Verse 241 fol. Muhammad Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945; Usman Khan Bahamani v. Fathimunnisa Begum and others AIR 1990 Andh. Pra. 225 and Arab Ahemadhia Abdulla and others v. Arab Bail Mohmuna Saiyadbhai and others AIR 1988 Guj. 141 mentioned. The brief facts in the instant writ petition are that Mst. Zaib‑un -Nisa, the mother of the minors respondents Nos. 1 to 3 filed a suit for maintenance for herself and the minors. She demanded and prayed that she be given Rs.4,00,000 as compensation vide agreement, dated 11‑10‑1997 and the maintenance allowance of all the plaintiffs at the rate of Rs.20,000 or as directed by the Court. The suit was contested and the learned Family Court Judge vide judgment and decree, dated 17‑4‑2002 decreed the suit of the plaintiffs Nos.2 to 4 (minors) against defendant No. 1 with the observation that the plaintiffs Nos.2 to 4 are entitled to get maintenance allowance from defendant No. 1 at the rate of Rs.5,000 per month each from the filing of the suit till the operation of law and dismissed the suit filed by plaintiff No.1. On appeal the impugned judgment and decree passed by the learned Family Court Judge was affirmed vide judgment and, decree, dated 18‑3‑2003.

2. The arguments advanced by the learned counsel for the petitioner are that he is only aggrieved in respect of the quantum of maintenance and does not want to address arguments on any other ground other than the quantum of maintenance. He argued that the income of the petitioner is, at the most 15,000 per month and he has remarried and has children from the second marriage. While both the learned Courts below considering him a Steel Fitter for Sharja Police having a technical job apprehended that he would be earning more than what he has stated and, therefore, decreed the exorbitant amount.

3. The learned counsel for the respondents has argued that the learned Courts below have illegally deprived the plaintiff No.1 from her maintenance. As in the earlier suit filed by her for the recovery of maintenance allowance the matter was settled between the parties through an agreement, which is‑ on the record as Exh.P.1 and through this agreement the father of the petitioner undertook that if his son Muhammad Aslam, the petitioner will take any step which will give mental torture or cruel treatment to the respondent No.1 Mst. Zaib‑un -Nisa or the petitioner will not perform matrimonial relationship he will pay Rs.4,00,000 to the plaintiff/wife. Since such an agreement was the outcome in a family suit the learned Family Court was bound to grant her the aforesaid amount. He further argued that the plaintiff No.1 was divorced at the whims and caprice of her husband and without any reasonable cause the divorce took place between the parties and she was granted only maintenance by the Arbitration Council for Iddat period and the petitioner's remedy against the same has been failed till High Court. He further argued that the instant writ petition is filed by the father of the petitioner without any power of attorney to move with the instant petition the quantum of maintenance is reasonable and this Court has no jurisdiction to interfere in this matter. He further argued that a divorcee wife if neglected and deserted by her husband at his whims and caprice then she is entitled for maintenance for milk of the suckling babe. He relied on Muhammad Ahmad Khan v. Shah Bano Begum AIR 1985 SC

945. He Further argued that according to Ahkam‑ul‑Qura'n Verse 333, Sura 2:‑‑ He further argued that in Majmooa "Qawaneen‑i‑Islam" it is established that:‑‑‑ Since the younger child was a suckling babe, so the defendant husband was under a duty of law to pay her the maintenance allowance for her milking even after divorce.

4. The learned counsel for the respondents in respect of the above arguments submits that the writ petition filed by the petitioner/husband to this effect is dismissed by this Court. She has not filed any appeal or objection petition for rejecting her claim of past maintenance. The law relating to the matter of substantive right of appeal exists in section 14 of the Family Courts Act, 1964 but no such appeal has been preferred by the plaintiff/wife, therefore, she cannot agitate even this right at this stage.

5. I have heard the learned counsel for the parties and have perused the record.

6. In view of judgment M. Saleem Ahmad Siddiqui v. Mst. Sabira Begum and others 2001 YLR 2329 the salary cannot be attached beyond half of it. Islam does not compel a person to do an act beyond his capacity, therefore, social status of the petitioner and level of legitimate financial sources which are eminent factors for deciding the quantum of maintenance shall not be ignored.

7. In the present case these aspects have not been dilated upon by the learned Courts below with realistic approach nor the evidence is appraised with the precision. The petitioner has given oral account of the income of the defendant but she has not produced the evidence. At this stage, the learned counsel for the petitioner submits that he is drawing near about Rs.15,000 as his salary, therefore, the fixation of quantum of maintenance of Rs.5,000 per head to my view is not correct and even the admission of the petitioner that he used to pay Rs.5,000 to the plaintiff/wife when she was living with her father, is not enough to establish the legitimate income of the petitioner. The quantum of maintenance is reduced from Rs.5,000 to Rs.3,000 per month for each minor.

8. So far as the maintenance of plaintiff/wife is concerned, undoubtedly the divorce has taken place between the spouses and during divorce proceedings the Arbitration Council granted her maintenance allowance of Rs.10,000 per month for Iddat period. She has filed a suit for her past maintenance which both the learned Courts below have ignored but it is established from the evidence on record that when the divorce took place there was a suckling babe namely Mst. Ayesha who was born on 12‑9‑2001. The petitioner is well‑settled aboard. He has contracted a second marriage in March, 2003 and he is keeping his children from the second wedlock at Sharjah while the plaintiff/wife was left alone with a suckling babe and other minor children and stood divorced. In Surah 2 Al‑Baqara; Verse 233 the Qur'an says:‑‑

9. The suit for maintenance was filed by the plaintiff for herself and the minors on 12‑9‑2001. The divorce took place in September, 2001 but according to her statement as P. W.1 she was expelled from the house in July, 2000. The learned Family Court Judge while deciding Issue No. 1 observed that the claim of the plaintiff remains uncontested to the extent of defendant No. 1 and the plaintiff has proved this issue successfully and observed that there is no question regarding the legitimacy of defendant No. 1 with plaintiff No 1 and the minor plaintiffs are legitimate children of defendant No. 1 therefore, defendant No. 1 is legally bound to maintain them and moreover, as the marriage has admittedly been dissolved between the spouses, therefore, the plaintiff No. 1 being not wife of defendant No. 1 is not entitled for any maintenance allowance. The judgment and decree dated 17‑4‑2002 was not challenged by the plaintiff/wife to her extent but so far as the maintenance of the plaintiff to the extent of her breast‑feeding her suckling babe from the date i.e. J2‑9‑2001 till 12‑9‑2003 is concerned according to Qur'anic Injunctions and dictates of Islam she is entitled for maintenance for breast‑feeding the suckling babe from 12‑9‑2001 till 12‑9‑2003, therefore, the judgments of, the learned subordinate Courts on Issue No.1 stand modified to this extent acid she is held entitled to the maintenance allowance at the rate of Rs.1,000 per month even after the period of Iddat for breast‑feeding the suckling babe of the petitioner who is a man of sufficient means.

10. As far as the recovery of the amount of Rs.4,00,000 is concerned that is through an agreement between the parties if she has any right in respect of the agreement she can always agitate the same before the proper forum and the learned Family Court as Civil Court can always look into the matter.

11. Even the equity and natural justice demands that the wife who is neglected throughout by her husband and divorced her at' his whims and caprice and is left alone at the mercy of cruel circumstances in a male dominated society without any source of income should be maintained by the divorcing husband who has acted without justification. In Sura Al‑Baqara; Verse 241, the Qur'an says:‑‑

12. In the Indian law, Muslim Women Protection of Right on Divorce exists in the provision of section 125, Cr.P.C. but there is no such existing in the law of Pakistan. There are judgments of Indian Courts i.e. Muhammad Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945, Usman Khan Bahamani v. Fathimunnisa Begum and others AIR 1990 Andh. Para. (Full Bench) 225 and Arab Ahemadhia Abdulla and others v. Arab Bail Mohmuna Saiyadbhai and others AIR 1988 Gujarat 141, where a divorcee wife who is neglected and divorced by her husband at his own whims and caprice is held entitled for maintenance under section 125, Cr.P.C. of Indian Criminal Procedure Code, the Muslim Woman Protection of Right on Divorce. The Legislature in this country having the Supreme power to enact and legislate law, may, if so deems fit look into this aspect of the matrimonial life and make amendment in section 9 of the Family Laws Ordinance, 1961 enabling the Chairman, Arbitration Council to grant maintenance to a destitute divorcee wife and may enact separate provisions of law in the same Ordinance. M.B.A./M‑38/L Order accordingly.