1990 PLP 243 (MLD)

Dr. Abdul Majid v. Mst. Humaira Bibi and 2 others 1989 SCMR 1416 rel. (c) Muslim Family Laws Ordinance (VIII of 1961)‑‑ ‑‑‑S. 7‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Wife's suit for maintenance was decreed till the end of iddat period which was deemed to have expired on the expiry of ninety days of service of notice; upon the Chairman concerned‑‑ Appellate Court extended the period of iddat as also the period of maintenance for a further period of ninety days i.e., three months after Talaq became effective‑‑‑There being no resumption of marital tic between husband and wife within the period of ninety days, Appellate Court's order granting maintenance for a further period of three months after Talaq became effective, was not legally correct‑‑‑Appellate Court's order was modified accordingly. Saghir Ahmad Qadri for Petitioner. Abdul Aziz Bhatti for Respondent No.1. Date of hearing: 25th June, 1989. Mst. Shahnaz Begum respondent claiming to be the wife of Ehsan‑ul -Haq petitioner filed a maintenance petition in the Family Court at Gujar Khan. Maintenance was claimed at the rate of Rs.300 per month. The petition was contested. After recording evidence the learned Judge Family Court allowed the same vide order dated 1‑2‑1988 granting maintenance at the rate of Rs. 1,000 per month. Maintenance for only three years prior to the institution of the maintenance petition was allowed. As Mst. Shahnaz Begum had been divorced on 22‑7‑1987, the maintenance was also allowed upto the said date including the period of Iddat. In all maintenance was granted for four years and 20 days.

2. Both the parties felt aggrieved and preferred appeals. Learned Addl. District Judge vide judgment dated 30‑5‑1988 dismissed the appeal of Ehsan‑ul- Haq and partly allowed that of Mst. Shahnaz Begum. It was ordered that as talaq had become effective from 22‑7‑1987, notice of talaq having been received in the office of the Chairman Union Council on 22‑4‑1987. Mst. Shahnaz Begum was entitled to maintenance for another period of three months i.e. Iddat period till 22‑10‑1987. The vires of this order of the learned Addl. District Judge have been called in question by Ehsan‑ul‑Haq in the present writ petition.

3. The petition was admitted to consider that no reconciliation effort having been made after the close of the evidence of the parties as required under section 12 of the West Pakistan Family Courts Act, the Family Court had failed to exercise jurisdiction. Learned Counsel for the respondent has invited the attention of the Court to proceedings dated 6‑1‑1988 in the Family Court which clearly show that in presence of the counsel for the parties after closing the evidence of the parties, effort at reconciliation was made but to no effect. Hence the ground on which the writ petition was admitted to regular hearing no longer exists as per the record. However, learned counsel for the petitioner contended that inadmissible evidence has been considered to determine the rate of maintenance by the learned Family Judge and in any case the period of Iddat ended within three months of the service of notice of the Talaq to the Chairman, so Mst. Shahnaz Begum could claim maintenance only upto the said date i.e. 22‑7‑1987 and nothing beyond. So far as the first limb of the argument is concerned the learned counsel for the petitioner has failed to convince that inadmissible evidence had been read to record the finding on fact by the learned Judge Family Court or the Addl. District Judge. According to the maintenance petition Ehsan‑ul‑Haq was living in England and earning Rs.20,000 a month. This was generally denied in the reply. Rehmat Ullah Baig (PW.l) the attorney of Mst. Shahnaz Begum stated that the defendant i.e. Ehsan‑ul‑Haq was employed in a glass factory in England and his monthly income was Rs.18,000 to 20,

000. He was not cross‑examined to the contrary at all. Even his attorney Muhammad Yousaf (D.W.1) did not say a single word as to his monthly income. He rather admitted in cross‑examination that he was working in a factory. Thus the first part of the argument is rejected.

4. However, there is force in the latter part of the contention. The notice of divorce was given to the Chairman. Admittedly on 22‑4‑1987 the learned Judge Family Court considered the period of Iddat to have expired within three months thereof i.e. on 22‑7‑1987. The learned Addl. District Judge was of the view that the Talaq became effective within 90 days of the service of notice upon the Chairman i.e. on 22‑7‑1987 and so the period of Iddat would end on 22‑10‑1987. Learned Counsel for Mst. Shahnaz Begum contended with reference to section 7(3) and (5) of the Muslim Family Laws Ordinance and Syed Ali Nawaz Gardezi v. Lt: Col. Muhammad Yousaf (PLD 1963 SC 51) to canvass the point that the Talaq would become effective only upon expiry of the 90 days from the delivery of notice of Talaq to 'the Chairman. So far so good but here the question is not when the Talaq would become effective, rather as to when the period of Iddat would expire. Syed Ameer Ali in his famous treatise on the Muslim Law (Mahommedan Law by Syed Ameer Ali Vo1.2, 7th Edition, published by the Law Publishing Company Katchery Road, Lahore page 459) has given the raison d,etre for observing the period of Iddat or probation and that is "for the prevention of confusion of parentage" in case of dissolution of marriage tie. That is also the reason that there is no Iddat/period of probation when there is no actual consummation of marriage. When notice of Talaq was served on behalf of Ehsan‑ul‑Haq petitioner to the Chairman of the Union Council on 22‑4‑1987 and there was no resumption of marital tie (Rujjat) within the period of 90 days, the period of Iddat would be considered to have coincided with the said 90 days. This very view seems to get support from a recent judgment of the Supreme Court in Dr. Abdul Majid v. Mst. Humaira Bibi and 2 others (1989 SCMR 1416).

5. The upshot is that Mst. Shahnaz Begum was entitled to maintenance only upto 22‑7‑1987 and the order of the Addl. District Judge granting maintenance upto 22‑10‑1987 is not legally correct. The writ petition is accepted and the order of the learned Addl. District Judge stands modified accordingly. A.A./E‑18/L Order accordingly.