P L D 1968 Lahore 93 (PLP)

SAJJAD AHMAD, J.‑

This is a writ petition by Rashid Ahmad Khan, who is dissatisfied with the order of the Arbitration Council of Union Council No. 240, Taraf Juma Khalsa, District Multan, whereby a sum of Rs. 708.33 has been decreed in favour of his wife, Mst. Nasim Ara (hereinafter described as respondent) as arrears of maintenance for the period commencing from the 10th of February 1965, up to the 15th of April 1966, at the rate of Rs. 50.00 per month. The order was made on the 15th of March 1966, and confirmed by the Collector, Multan, in revision on the 9th of July 1966. The petitioner had married the respondent on the 22nd of June 1963. She filed an application under section 9 of the Muslims Family Laws Ordinance (VIII of 1961) (hereafter to be referred to as the Ordinance) on the 1st of January 1966. The petitioner divorced the respondent on the 8th of January 1966, and sent a notice of it to the Chairman, Union Council (respondt6t No. 4), with a copy to the respondent, in compliance with the requirement of section 7 of the Ordinance. The notice was received by the Chairman on the 14th of January 1966, and its copy by the respondent on the 10th of January 19.66. Thereafter, respondent No. 4 issued a notice to the petitioner to answer the application that had been filed by the respondent for maintenance. The petitioner submitted a detailed reply to the Chairman in which he accepted to maintain his ex‑wife for three months only, i.e., for the Iddat period after the divorce. The Chairman, however, constituted an Arbitration Council for which the respondent nominated her own father, Ghulam Mustafa Khan, as her representative on the arbitration Council. The petitioner was also asked by the Chairman to no minate his representative which he avoided for a number of hear ings and finally refused to do so. The Arbitration Council then recorded the statement of Ghulam Mustafa Khan (respondent No. 3), the representative of respondent No. 1, and of one Abdul Karim, whereupon a decree was passed in favour of respondent No. 1 on the 15th of March 1966.

2. Two points have been urged before us in this petition:‑ (1) that the Arbitration Council had no jurisdiction to award arrears of past maintenance; and (2) that the representative of the respondent on the Council, namely, her father Ghulam Mustafa Khan had disqualified himself to remain on the council after having become a witness for the respondent and giving evidence in her favour.

3. The first point was considered lately in a Division Bench case of Sardar Muhammad v. Mst. Nasima Bibi, (P L D 1966 Lah. 703) decided in writ jurisdiction. One of the questions canvassed in the precedent case was whether the Chairman of the Union Committee had the competency to grant arrears of past maintenance in proceed ings under section 9 of the Ordinance. The parties in that case were married on the 24th of May 1957. The respondent wife was allowed maintenance allowance at the rate of Rs. 70.00 per mensem for the future and Rs. 718.00 in lumpsum as arrears of maintenance from 15th of July 1961, which was the date of the enforcement of the Ordinance to the 23rd of May 1962, which was the date of the disposal of the wife's petition. She had filed her application to the Chairman, Union Committee, on the 7th of February 1962. It was held in this case that the husband's obligation to maintain his wife commences simul taneously with the performance of marriage and being an obligation and not an ex gratia grant by way of gratuity, it is enforceable even with respect to the past period of marital life, although it was not promptly claimed during that period by the wife, subject to considerations of limitation and the cir cumstances of the case itself. We find ourselves in respectful agreement with the decision cited above, and we see nothing in section 9 of the Ordinance to confine its application only to the grant of future maintenance not covering the past. Section 9 authorises the issuance of a certificate by the Arbitration Council, specifying the amount which shall be paid as maintenance by the hasband on his failure to maintain his wife adequately or equitably with his co‑wife, if there is one, or co‑wives, if there are more, on the determination of that matter when raised before the Council by the neglected wife or wives. The Ordinance was passed to give effect to certain recommendations of the Commis sion that had been set up on marriage and family laws which provided for some conciliatory and easy modes for ending unhappy wedlocks and for ensuring speedy reliefs to the neglected A wives against the delinquent husbands. The action for past maintenance being maintainable on the part of a wife, subject to limitation and subject to the claim being otherwise enforceable in a Court of law, and there being no prohibition for its decision by the Arbitration Council under the Ordinance as a supple mentary, agency to the ordinary forums already existing under the law, it would seem to be against the intention of the law giver to hold that the Arbitration Councils can issue certificates under section 9 only in regard to future maintenance, without having the powers to do the same in respect of the arrears of past maintenance. One can imagine a case where a wife may have hopefully waited for payment to her of her maintenance by the husband who may have been prevaricating to meet the claim without expressly denying it and when the wife finally brings an action under the Ordinance before the Arbitration Council it would seem unfair to deny to the wife her claim for past maintenance on the ground that she had not promptly come to ask for it owing to the false promises held out by the husband. We are, therefore, unable to find anything in section 9 to draw a line for dividing the jurisdiction of the Arbitration Council for grant of the maintenance between past and future periods.

4. As for the second point, the argument that the father of the respondent was disqualified to remain on the Arbitration Council to deliberate in the final adjudication because of his having made a statement as a witness for the respondent is the tenor and spirit of the Ordinance in regard to the setting up of the Arbitration Councils. "Arbitration Council" is defined in section 2 (a) of the Ordinance as a body consisting of the Chairman of the Union Council and a representative of each of the parties to a matter dealt with in the Ordinance. The very constitution of the Arbitration Council under this definition indicates that it is to have one representative or spokeman of either of the parties to a matter before the Arbitration Council and the Chairman has to act as the Umpire. As a representative within the contemplation of the Ordinance he has to be the spokesman of the party represented by him and one can under stand that the Ordinance fully recognized that the representative must needs identify himself fully with the cause of the party he represents. The representative walks into the shoes of the party itself and it would be within his normal functions as a representative to make a statement on behalf of his principal. The fact that he makes the statement on oath or otherwise, as a witness or in any other capacity, favouring his party would not, in any manner; effect his capacity to sit on the Arbitration Council and to arbitrate in the matter, his position in the Council being that of a representative of his party throughout although he has to act also as an arbitrator. It is easily understandable that as a representative of one party he cannot be expected to speak for the other party at any stage of the proceedings, and in conceding to him the status of a member of the Arbitration Council, the Ordinance must be deemed to have taken into account his dual capacity as a representative and as a member of the Arbitration Council. We are, therefore, of the opinion that Ghulam Mustafa Khan was not disqualified to remain on the Arbitration Council as its member by the fact that he had made a statement in favour of the respondent which does not, in any way, impair the constitution of the Arbitration Council, nor the decision that has been given by it in favour of the respondent. We dismiss the petition with costs. K.M.A. Petition dismissed.