2003 PLP 882 (CLC)

Syed Waseem Haider for Respondent. Date of hearing: 26th August, 2002. This case is being treated as an admitted case as both the parties are represented.

2. Petitioner, Shaukat Ali, has assailed the judgment of respondent No.4. learned Additional District Judge, Sargodha, dated 16-4-2001 whereby he had dismissed the appeal of the petitioner against the judgment and decree of respondent No.3, learned Guardian Judge, Sargodha, dated 17-6-2000 who had decreed the suit of respondents Nos.1 and

2. Mst. Musarat Sultana and Rustam Ali, wife and minor son of the petitioner respectively, for maintenance in the amount of Rs.1,000 per month for respondent No.1 and Rs.500 per month for respondent No.2 w.e.f. 4-9-1996 till such time as respondent No.1 remains lawfully wedded wife of the petitioner and for respondent No.2 till he attains majority.

3. Learned counsel for the petitioner has not pressed the petition in respect of payment of maintenance to respondent No.2, Rustam Ali, and has stated that payment of maintenance to him has been made w.e.f. 4.9-1996 till today and even 'in excess of the amount due in respect of the minor and he is also ready and willing to pay maintenance to respondent No.2 tilt he attains majority. However, in respect of the maintenance awarded to respondent No.1 by both the Courts below it has been contended that the petitioner had divorced respondent No. 1 on 18-10-1996 and had sent notice of the same to her as well as to the Chairman, Arbitration Council, Sillanwali and the divorce had attained finality after 90 days of the receipt of the notice by the Chairman who had also issued a certificate to the effect that the notice of divorce had been received by the Chairman, Town Committee, Sillanwali on 6-11-1996 and the divorce had attained finality after the period of reconciliation had passed without any reconciliation being effected between the parties and in such circumstances respondent No.1 is not entitled to any maintenance except for Iddat period for which the petitioner is ready and willing to pay.

4. Learned counsel for respondents Nos.1 and 2 has vehemently opposed the petition on the ground that there is concurrent finding of facts of both the Courts below that the petitioner had not divorced respondent No.1 nor had any evidence been produced before the Courts below by the petitioner to the effect that he had divorced respondent No.1. Learned counsel has pointed out that the written statement had not been appended with the petition since in the written statement the petitioner himself had stated that he is willing to reconcile with respondent No.1 and to pay the maintenance to her if she returns to the marital home but she is living away from him without any reason, therefore, she is not entitled to any maintenance and that no notice of divorce was issued by the petitioner to respondent No.1 nor does the Chairman, Town Committee, Sillanwali have any jurisdiction to issue any certificate regarding divorce between the parties since the marriage of the parties was contracted in Chak No.107/NB which falls within the jurisdiction of Union Council No. 111/N.B. and that the notice of divorce which had been produced at a belated stage can neither be entertained nor is it a valid notice since no reference has been made in the written statement filed by the petitioner himself and mere statement had been made in the Court by him that he had divorced the petitioner when he appeared before respondent No.3 on 16-7-1998.

5. I have heard the learned counsel for the parties and I have also gone through the impugned judgment of respondent No.4 and judgment of respondent No.3. Respondent No.3 has observed in his judgment that the petitioner had merely asserted in the Court that he had divorced respondent No.1 but he had not produced any witness in support of the statement nor was certificate of divorce issued by the Union Council produced in the Court. He has merely asserted that his salary is only Rs.3,375 and payment of Rs.1.500 as maintenance is beyond his means. Respondent No.4 has observed in the impugned judgment that the petitioner had not been able to establish on record that he had divorces respondent No.1, therefore respondent No.1 was entitled to maintenance and the amount decreed by respondent No.1 was not unreasonable in view of the earnings of the petitioner.

6. The record of the proceedings before respondent No.3 shows that for the first time the petitioner had asserted that he had divorced respondent No. 1 on 16-7-1998. Even if this statement was to he considered as the divorce pronouncement, at best it would be effective after the passage of 90 days of the statement which would be 17-10-1998. The petitioner himself in his written statement had asserted that he is willing to reconcile with respondent No.1, therefore, any evidence to the effect that he had divorced her in 1996 cannot be entertained in contradiction to his own pleadings before respondent No.3. The amount of maintenance awarded to respondent No.1 is less than 1/2 of the salary of the petitioner at the time when the suit was filed, therefore, it is not an excessive amount.

7. This petition is dismissed. Respondent No. 1 is held entitled to the maintenance decreed in her favour till such time as she learnt that she had been divorced by the petitioner and the divorce had attained finality which according to the observations in the previous paragraph would be 17-10-1998. No order as to costs. M.M.U.K./S-601/L Order accordingly.