P L D 1994 Lahore 148 (PLP)

This Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 relates to a family dispute.

2. The relevant facts are that Riffat Ibrar petitioner and Mst. Shehla Sabri respondent No3 (hereinafter called the respondent), were married in Lahore on the 2nd of December, 1988. They were blessed with a daughter. Later on various kinds of disputes and differences cropped up between them. On 26‑5‑1992 the respondent presented an application under section 9 of the Muslim Family Laws Ordinance, 1961 before Chairman, Halqa No.101, National Town, Lahore (respondent No.2) against the petitioner for the grant of maintenance at the rate of Rs.2,000 per month with effect from 7‑9‑1990, the day when he left her and her daughter in the house of her parents. A notice was issued to the petitioner, who instead of appearing before the Chairman moved an application before the District Collector (respondent No.l) for the transfer of the respondent's application but the same was dismissed on 1‑8‑1992. Thereafter, the petitioner appeared before 'the Chairman, an Arbitration Council was duly constituted and reply was filed by him though after a considerable delay. The respondent concluded her evidence. The petitioner, however, moved yet another transfer application before the Collector which was dismissed. He obtained a number of adjournments from the Arbitration Council but failed to produce any evidence. Consequently on 2‑12‑1992 he and his representative absented themselves as a result of which .ex parte proceedings were taken against him and an ex parte decree for the grant of maintenance at the rate of Rs.2,000 per month was passed in favour of the respondent from 7‑9‑1990 to 8‑3‑1992. This period included the time between 5‑9‑1991, when the petitioner sent a notice of `Talaq' to the respondent, and 8‑3‑1992 when the period of Iddat expired.

3. Feeling aggrieved the petitioner challenged the order dated 2‑12‑1992 before the District Collector in revision. The revision petition was partly allowed vide order dated 17‑1 1993 in so far as the rate of maintenance was reduced from Rs.2,000 to Rs.1,300 per month.

4. Still not satisfied the petitioner has called in question the validity of the orders dated 2‑12‑1992 and 17‑1‑1993 through this writ petition which I propose to dispose of by this judgment.

5. I have heard the parties' learned counsel and have also gone through the material available on record.

6. It is a common ground between the parties that the marriage between the parties stands dissolved, the `Talaq' has become effective and period of Iddat had expired on 8‑3‑1992. It goes without saying that it is the obligation of a husband to maintain his wife till the expiry of the period of Iddat. .

7. Learned counsel for the petitioner has submitted that the petitioner had been condemned unheard, that the respondent was not entitled to any maintenance because she herself had demanded `Talaq' and that an ex‑wife could not recover maintenance from her ex‑husband by filing an application under section 9 of the Muslim Family Laws Ordinance, 1961.

8. Learned counsel for the respondent has vehemently controverted the above contentions.

9. Perusal of record of the Arbitration Council reveals that a number of opportunities were afforded to the petitioner to produce his evidence but he failed to do so on one pretext or the other. Finally ' his defence was closed on 2‑12‑1992. It was argued on behalf of the petitioner that on 1‑12‑1992 he had sent an application to the Chairman through T.C.S. Courier Service for the adjournment of the case on the ground that his representative Ibrar Hussain was indisposed and that instead of granting adjournment the Chairman had proceeded to close his evidence and thus the petitioner had been condemned unheard. The argument is devoid of force. There is sufficient material on record to establish that the said application had not been delivered to the Chairman on 2‑12‑1992. However, it was received by the brother of the Chairman on 2‑12‑1992 at his residence and had reached the Arbitration Council on 5‑12‑1992. Sending an application for adjournment of the case through Courier Service when the petitioner himself was .hale and hearty is indicative of his mala fides. He should have himself appeared before the Chairman and requested for adjournment. He did not do so which in my opinion was aimed at prolonging the case. The conduct of the petitioner did not entitle him to any further indulgence of the Arbitration Council. His defence was rightly closed.

10. The petitioner has not cited any law in support of his contention that as the respondent had herself demanded Talaq, she was not entitled to any maintenance. He has also not referred to any agreement between the parties whereby she had abandoned her claim in lieu of `Talaq'. Therefore, the second limb of the petitioner's arguments is found to be devoid of force.

11. This brings me to the most important question involved in this writ petition viz. whether an ex‑wife was 'not entitled to recover maintenance from her ex‑husband through an application under section 9 of the Muslim Family Laws Ordinance, 1961. In support of his contention that the respondent wife could not seek remedy under the aforesaid provision of the Ordinance, learned counsel for the petitioner has relied on Mst. Naziran v. The Collector, Sialkot and 2 others 1990 SCMR 803 and Mushtaq Ahmad v. The Collector/Deputy Commissioner, Lahore District and 2 others 1986 CLC 2312(2). It was laid down in the said cases that after divorce an ex‑wife could not invoke the jurisdiction of the Arbitration Council under section 9 of the Muslim Family Laws Ordinance, 1961 for the recovery of maintenance against her ex‑husband. On the other hand learned counsel for the respondent has relied on Muhammad Najeeb v. Mst. Talat Shahnaz and others 1989 SCMR 119, Muhammad Banaras v. Chairman, Union Council, Chak Malak Tehsil and District Chakwal etc. 1991 MLD 112, Muhammad Abdur Rashid v. Mst., Shazia Parveen and others 1987 MLD 766 and an unreported judgment of this Court in W.P. No.8578 of 1990 titled Ghulam Jilani v. Deputy Commissioner etc. 1991 CLC 1813 to show that an ex‑wife was competent to recover maintenance from her ex‑husband through an application under section 9 of the Muslim Family Laws Ordinance, 1961.

12. I have considered the judgments cited by the parties and have come to the irresistible conclusion that the respondent in the circumstances of the present case was competent to invoke the jurisdiction of the Arbitration Council under section 9 of the Muslim Family Laws Ordinance, 1961 for the recovery of maintenance. It has already been pointed out that in the application before the Arbitration Council she had prayed for the recovery of maintenance from 7‑9‑1990 to 8‑3‑1992. Admittedly; the petitioner had sent a notice of Talaq to her on 5‑9‑1991. Thus the marriage between the parties undisputedly subsisted between 7‑9‑1990 and 4‑9‑1991. In Muhammad Najeeb's case it has been laid down by the Supreme Court that if the dispute between the parties relates to the period during which marriage was subsisting and the husband was under an obligation to maintain the wife then despite divorce she could validly invoke the jurisdiction of the Arbitration Council under section 9 ibid for the recovery of maintenance. The relevant portion of the judgment reads as follows:‑ "When an application is made by an ex‑wife for maintenance regarding period when the wedlock was intact and also for the Iddat period it would be made by the so‑called divorced wife and would be covered by the word `wife' as contained in section 9." The cases of Mst. Naziran and Mushtaq Ahmad are distinguishable as this question never formed part of the controversy nor was it discussed therein. I, therefore, relying on Muhammad Najeeb's case, which squarely applies to the present case, hold that the respondent's application under section 9 of the Muslim Family Laws Ordinance, 1961 before the Arbitration Council was quite C competent. The argument of the learned counsel for the petitioner, which has no force, is repelled. 13` The rate of maintenance awarded by the Collector i.e. Rs.1,300 per month is quite reasonable. The impugned orders do not suffer from any legal infirmity and cannot be dubbed as orders without lawful authority. Thus there is no ground for interference in exercise of constitutional jurisdiction of this Court. The writ petition is dismissed with casts. AA./R‑118/L Petition dismissed