MANZOOR AHMAD Versus NAZIRAN BIBI

The challenge in this writ petition filed by a husband is to the order of grant of past maintenance to his wife and son by a learned Family Judge vide order dated 18-6-69. Except for a small modification, the order was maintained in the first appeal decided by the learned District Judge on 18-12-69. The petitioner then moved this writ petition in April 1970. It came up for hearing before a Division Bench in motion on 25-5-1970, when it was admitted to regular hearing and a stay order was granted with regard to past maintenance in the following terms:--

"Admit Notice. The order of maintenance in respect of the period prior to 16-2-68 shall meanwhile not be executed provided the main tenance for the period after 16-2-68 is paid within three months."

2. The case came up before me on 12-6-74 when it was partly heard. It was noticed on that day that no maintenance had been paid to the res pondents, not even in pursuance of the order passed by this Court. The case was adjourned and I was of the view that this aspect of the matter having been brought to the notice of the learned counsel for the petitioner, it was possible that till the next hearing the arrears of maintenance commencing from 16-2-68 t. e. the date of application, as distinguished from past maintenance (technically so-called) might be paid before the commencement of the next hearing. Today, again, when asked, the learned counsel after receiving instructions from his client, special attorney of the petitioner, stated that no amount has so far been paid. The only excuse put forward is that the petitioner having sought custody of the minor and having failed in that behalf, the respondents did not voluntarily deliver the custody, therefore, the maintenance had not been paid. A verbal request has also been made from the side of the petitioner that the custody of the minor boy should now be handed over to the petitioner. The question of custody is not an easy one to be resolved in this manner. Both the spouses having been divorced, have remarried and have children from the second wedlock in each case. The failure of the petitioner to pay maintenance, as directed by this Court, clearly shows that he had no intention of pursuing this petition with clean hands. Even when it was pointed out and opportunity was given to the petitioner to make the payment, nothing has been paid. Thus, it would show that he has not pursued this petition with any bona fide intentions. That being so, it is liable to be dismissed on this short ground alone.

3. However, I afforded opportunity to the learned counsel for the petitioner to support his argument that past maintenance cannot be granted He has placed reliance on some of the observations made by their Lordships of the Supreme Court in Muhammad Nawaz v. Mst. Khurshid Begum and 3 others (P L D 1972 S C 302) and has also relied on Hedaya by Hamilton and Muslim Law by Mulla, to contend that past maintenance cannot be granted under Muslim Law, except in two circumstances, namely (a) when there is an agreement between the parties, and (b) when the question has already been settled by an indepen dent adjudication. Learned counsel for the respondent has controverted the proposition (with regard to past maintenance) by relying on a Division Bench ruling of this Court in Sardar Muhammad v. Mst. Nasima Bibi and others (P L D 1906 Lab. 703) which, he rightly pointed out has been approved in the case of Muhammad Nawaz v. Mst. Khurshld Begum.

4. The operative part of the order passed by the learned Family Court in this case reads as follows:----

"(8) As a result of my findings above the suit of the plaintiffs is decreed for the recovery of maintenance allowance from December 1966 to 30-3-68 @ Rs. 150 p .m. and from 30-3-68 till 31-5-69 @ Rs. 75 per mensem and also for future maintenance for the plaintiff No. 2 @ Rs. 75 per month. In this way the defendant shall pay Rs. 3,450 in all as maintenance allowance to the plaintiffs."

The learned District Judge, in appeal observed as follows;---

"The divorce of Naziran Bibi had become effective from 30-3-68. The present suit was filed on 13-2-68. She was entitled to the maintenance from December 1966 till 30-3-68 when the divorce had become effective. The contention of the learned counsel for the appellant that the past maintenance was not claimed by the respondents has no force, because throughout the plaint the respondents had alleged that the appellant had not paid them any maintenance. Khalid Pervez is entitled to maintenance from December 1956, onwards. Naziran Bibi stated that the appellant was earning Rs. 2,000 in month. Her witnesses stated that the appellant was earning about 1,200-1,300 rupees per month. No evidence was led by the appellant as to what was the income of the appellant. He did not rebut the evidence led by the respondents. Taking the income of the appellant and the high cost of living these days into consideration, maintenance of Rs. 75 to each of the two respondents was by no means excessive, rather this was the proper maintenance fixed by the Judge, Family Court."

It needs to be mentioned that the application for maintenance was filed on 16-2-68. The copy of the application shows that section 488, Cr. P. C., was not at all relied upon. On the other hand, the heading as also the contents show that it was made to obtain maintenance under general law. The heading read as follows:

"(Maintenance) ---------

It further needs to be noticed as an admitted fact that both the spouses, after having been divorced in March 1968, having remarried, the husband is living in Scotland. Both the parties have children from the second wedlock.

5. It was observed in Alaf Din v. Mst. Parveen Akhtar (P L D 1970 S C 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 are unable to maintain themselves. Earlier in Adnan Afzal v. Captain Sher Afzal (P L D 1969 S C 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 1st 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 filed 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 1st 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 pro vision (section 488, Cr. P. C.) would not arise.

6. It is to be seen whether under the general/personal law applicable to the parties, there was any limitation with regard to grant of past main tenance. Their Lordships of the Supreme Court were pleased to consider this question in the ruling relied upon by both the learned counsel (Muhammad Nawaz v. Mst. Khurshid Begum and 3 others (P LD 1972 S C 302). In the earlier Division Bench ruling by this Court (Sardar Muhammad v. Nasima Bibi and others (P L D 1966 Lah. 703) it was ruled that maintenance could be granted from the date of accrual of the cause of action subject, of course to the consideration of limitation. Their Lordships of the Supreme Court made the following comment on this aspect of the matter at page 304 of the report:-----

"These authorities (Hedaya and Mulla) were considered by the former High Court of West Pakistan, Lahore, in a well considered judgment in the case of Sardar Muhammad v. Nasima Blbi and others. It was held as under:-

`Further support is lent to the latter view from the fact that the com petency of the Kazee to grant maintenance for the past has also been admitted by the Hanafi School of thought as is clear from the following Heading of the except from Hamilton's Hedaya quoted earlier which reads:

`Arrears of maintenance not due unless have been decreed by the Kazee.'

Thus the competency of the Courts of today which have stepped into the shoes of the Kazees for the purposes of adjudication of these matters flows as a necessary corollary therefore. The mere fact that a neglected wife has been hesitant in promptly coming to the Court or has been pursuing alternative remedies out of Court cannot in all fairness he so construed as to deprive her of the right of main tenance from the day when the cause of action accrued to her. The Courts have thus the jurisdiction to grant such maintenance subject of course to consideration of limitation and the relevant circumstances of each case, and we hold accordingly. '

The learned counsel for the appellant was unable to satisfy us that the view taken by the High Court is faulty or that it is not in accordance with law. We agree with this view and hold that past maintenance can be allowed."

The Legislature has not placed any limitations on the jurisdiction of the Family Court (when not exercising powers as Magistrate 1st Class under sec tion 488, Cr. P. C.) with regard to grant of past maintenance. The cases how ever, 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 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 1st 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.

7. No other point has been urged. There is no force in this petition and the same is dismissed. There shall be no order as to costs.

K . B. A. Petition dismissed.