1989 PLP 1979 (CLC)

Mirza Ghiasuddin Beg for Petitioner. M.S. Khatri for Respondent No.

1. Date of hearing: 26th April, 1989. By this petition, the petitioner has challenged the judgment given by the Family Court in the suit for maintenance filed by the present respondent which was affirmed by the learned District and Sessions Judge, Karachi, South, in Family Appeal No.3 of 1987. The facts briefly are that the present respondent was married to the present petitioner on 4‑6‑1978 and according to her contention, she lived with the petitioner in his house only for a very short period and, thereafter, the petitioner's sisters and mother started giving her physical torture. It is further contended that the petitioner, therefore, took the respondent to her mother's house, where she lived for years together and the present petitioner had been visiting her in her parents' house but totally neglected to maintain her and did not maintain her properly nor paid any thing to her. She also alleged that she then moved the Area Councilor, where the father of the petitioner gave an undertaking to keep the respondent in his house for one month and thereafter to arrange a separate house for the petitioner, but even this promise was not fulfilled. During this period, the respondent became pregnant. The petitioner instead of looking after her and maintaining her, sent a written divorce to her on 22‑4‑1984. The petitioner had then filed the said suit claiming the maintenance of Rs.6(0 per month. The petitioner contested the suit and alleged that the respondent lived away from the petitioner of her own accord and proved to be a disobedient wife and, therefore, she was not entitled to maintenance. I have heard the learned counsel for the parties. Mr.Ghiasuddin Beg Mirza, learned counsel for the petitioner, has urged that the respondent being a disobedient wife is not entitled to any maintenance under law. As far as this contention of the learned counsel is concerned, the Family Court as well as the ' Appellate Court have given a concurrent finding that the petitioner had neglected to maintain the respondent as is obligatory for Muslim husband. The two Courts have discussed the evidence brought on record and I am not inclined to interference with the above‑said concurrent finding of fact in exercise of A constitutional jurisdiction. The learned counsel for the petitioner submitted that the Court can interfere with the concurrent finding of fact in case the Finding is perverse or based on misreading of the facts and evidence, but the learned counsel could not point out any such instance from the documents or evidence brought on record. ' The learned counsel for the petitioner then submitted that under the provisions of section 9 of the Muslim Family Laws Ordinance, 1961, the Family Court had no jurisdiction to grant past maintenance but all that it could grant was the maintenance from the time, the suit was riled. He has also argued that in the present case, admittedly the spouses having been divorced prior to filing of the said suit, the respondent would not be entitled to any relief of maintenance. He has also referred to paragraph 278 of "PRINCIPLES OF MAHOMEDAN LAW BY D.F. MULLA, SIXTEENTH EDITION". It will be advantageous to reproduce the provisions of section 9(1) of the Muslim Family Laws Ordinance, 1961, which read as under:.‑ "9(1).‑‑If any husband fails to maintain his wife adequately, or where there arc 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." The plain reading of the above provisions would show that there is no bar to i grant past maintenance. A reference may also be had to the provisions of Family 11 Courts Act, 1964, whereundcr suit for maintenance can be filed as the schedule under section 5 of the said Act includes the item of maintenance serial No.3. Learned counsel in support of his above contention has also referred to the case of Abdul Futteh Moulvie v. Zabunnessa Khatun (1881) 6 Cal. 631 on which the reliance is also placed by D.F. Mulla, the Author of above‑said "PRINCIPLES OF MAHOMEDAN LAW". The facts of the above‑cited case are not in consonance with the facts of the present case, as in the said Calcutta case, the wife had admittedly lived with the husband till December, 1877 and she demanded maintenance from January 1878 on the basis of an alleged document and the learned Judge have held that no such agreement for maintenance or court decree was made. The learned counsel for the respondent, repelling the above contention of the learned counsel for the petitioner, has submitted that in the first instance, the petitioner has not taken the plea with regard to maintainability of the suit in the written statement. He has contended that the petitioner not having taken such pica in the written statement is now barred from taking that plea. The plea taken by the petitioner is that the suit riled by the respondent being for the relief of past maintenance could not be filed in law and this being a legal pica 1 permitted the' counsel for the petitioner to argue the same, as it is settled law that the plea of i law can be taken at any time. The learned counsel for the respondent then argued that the provisions of section 9 of the Muslims Family Laws Ordinance, 1961, do' not bar the grant of past maintenance. He has placed reliance on the case of Muhammad Nawaz v. Mst. Khurshid Begum and 3 others PLD 1972 SC 302, wherein their Lordships have held:‑‑ "It further appears to us that on the language of section 9 of the Muslim Family Laws Ordinance, 1961, which is reproduced below, there is no prohibition for granting past maintenance." Of course, in this case of Supreme Court, their Lordships have also dealt with the distinction between section 488 Cr.P.C. and the above section 9 and the powers of the Arbitration Council to pass the order for past maintenance. In the said case, paragraph 278 of MULLA'S PRINCIPLES OF MAHOMEDAN LAW, cited above, was also taken into consideration and so also the case of Sardar Muhammad v. Nasima Bibi and others PLD 1900 Lahore

703. In the said Lahore case, a Division Bench of Lahore High Court had also held that the Arbitration Council was competent to grant past maintenance. It may also be noted that the above referred to case of Calcutta High Court, namely, Abdool Futteh Moulvis v. Zabunncssa Khatun was also referred to but the same was not followed. Mr. M,S.Khatri, learned counsel for the respondent, then referred to a Division Bench case of this Court, namely, Muhammad Yousuf v. Mst. Nafisa Khatoon and another PLD 1981 Kar. 773, wherein, their Lordships have observed as follows:‑ "The Family Courts Act is an act pari materia to Ordinance VIII of 1961 and since under this Act as well no such prohibition is prescribed we are of the view that the Family Court had the jurisdiction to grant redress for past maintenance. In our view the Supreme Court case referred to above is a parallel case which is applicable to the facts and the circumstances of the present case." Lastly, the, learned counsel for the respondent has placed reliance on the case of Manzoor Ahmad v. Mst. Naziran Bibi and 3 others P L D 1975 Lahore 571, wherein, Muhammad Afzal Zullah, J. (as he then was), has held:‑‑ "

5. It was observed in Alaf Din v. Mst. Parveen Akhtar PLD 1970 SC 75 that section 488, Cr.P.C., creates a statutory liability, independent from the personal law liability, for the maintenance of one's wife and children, both legitimate and illegitimate, who arc unable to maintain themselves. Earlier in Adnan Afzal v. Captain Sher Afzal PLD 1969 SC 187 their Lordships had ruled that the combined effect of sections 5 and 20 of the Family Courts Act is clearly to give exclusive jurisdiction to Family Courts, without in any way diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters. Maintenance is one of the items mentioned in the Schedule of the Family Courts Act which, read with section 5, would show that the Family Court, apart from its competency to deal with a matter under section 488, Cr.P.C. (if magisterial powers are conferred on it), has the jurisdiction to decide all questions of maintenance. This general jurisdiction conferred on the Family Court has been neither diminished nor curtailed by conferment of powers of Magistrate Ist Class on a Family Court to deal with questions falling under section 488, Cr.P.C. It is agreed by both the learned counsel that some cases which might fall under the general law may not be covered by section 488, Cr.P.C., and vice versa. As noted above, in this case the application riled from the respondent side for maintenance was not filed under section 488, Cr.P.C., nor it otherwise appears that the learned Family Judge exercised his powers as Magistrate Ist Class when granting the maintenance. The law contained in that provision, therefore, would not apply in this case. That being so, the question of grant of maintenance from the date of application only, as provided in the said provision (section 488 Cr.P.C.) would not arise." "The Legislature has not placed any limitations on the jurisdiction of the Family Court (when not exercising powers as Magistrate Ist Class under section 488, Cr.P.C.) with regard to grant of past maintenance. The cases however, which would be filed under section 488, Cr.P.C. (after the conferment of magisterial powers on a Family Court), would have to be dealt with under that provision wherein it would not be possible to grant past maintenance beyond the date of application because of the statutory bar. In this case, as held above, the application was not made under section 488, Cr.P.C. nor it was fought and tried under that provision. The exercise of jurisdiction by the Family Court was not as a Magistrate Ist Class but as Family Court only which had, under the general law applicable to the parties, power to grant past maintenance. Therefore, in so far as the circumstances of this case are concerned, no exception can be taken with regard to the impugned orders on the ground that past maintenance has been allowed:" In this case of Lahore High Court, admittedly the parties had been divorced in March 1968 and the order of maintenance was passed by Family Judge on 18‑6‑1969, i.e. subsequent to the date of divorce. It may also be observed that in this case the maintenance was sought for wife and child which was granted upto the time of divorce at the rate of Rs:150 but the said amount was reduced by 50% for the period after the date of divorce, obviously the second part of the order was only for the maintenance of the child, as the wife would not be entitled to maintenance after the divorce except for the period of `IDDAT'. In view of the above discussion I am inclined to follow the law as laid down in the above‑cited cases of superior Courts of Pakistan. The facts of the present case and the Principles of law as laid down in the above‑cited cases clearly show that the wife is entitled to the grant of past maintenance but she would not be entitled to receive any maintenance after the divorce except for the period of `IDDAT'. It is an obligatory duty cast upon the Muslim husband to maintian his wife and children, whereas, in the present case, the concurrent findings of the two Courts show that the petitioner has failed to maintain his wife Mr. M.S. Khatri has, however, urged that the respondent in her plaint has stated that she was pregnant at the time she received the intimation of divorce and that the said child having been conceived by her from the petitioner, the liability to bear the expenses of delivery and maintenance of the said child would also be that of the petitioner and the Family Court has taken the lenient view by not granting the same. The petitioner has not denied that he is the father of the said child. Be that as it may, I am of the view that since no maintenance was prayed for the child by the respondent in her suit, the same could not be granted in the suit. It will, however, be open for the respondent to seek any relief for the child if available in law. In view of above discussion, I am not inclined to interfere with the orders passed by the Family Court and the Appellate Court. The present petition is,, therefore, dismissed. However, there will be no order as to costs. A.A./A‑597/K Petition dismissed.