SHABBIR RAZA Versus SARTAJ FATIMA

This writ petition is directed against the orders passed by the Chairman, Union Committee No. 3 (respondent No. 2), whereby past maintenance was awarded to Mst. Sartaj Fatima (respondent No. 1), as also against the revisional order passed by the Collector (respondent No. 3) whereby, while dismissing the revision filed by the present petitioner, he increased the rate of maintenance granted by the Union Committee from Rs. 25 per mensem to Rs. 45 per mensem.

2. Learned counsel for the petitioner has conceded that the legal question of jurisdiction of a local council to grant past maintenance has finally been decided by the Supreme Court against the plea taken by the petitioner in this case, therefore, he does not press this point (with regard to the past maintenance).

3. On the second question relating to increase of maintenance for the wife as directed by the revisional authority, learned counsel relying on sub section (2) of section 9 of the Muslim Family Laves Ordinance, 1961, has contended that the revisional authority has no suo mote jurisdiction to in crease the maintenance in favour of the respondent. Subsection (2) of section 9 reads as follows:-

"(2) A husband or wife may in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision of the certificate, in the case of West Pakistan to the Collector, and in the cage of East Pakistan, to the Sub-Divisional Officer concerned and his decision shall be final and shall not be called in question in any Court."

4. The argument of the learned counsel prima facie has force that unless a wife is aggrieved by the order of the Union Committee and further wants to get the grievance redressed by a revision petition and that also if it is filed within time, then the revisional authority would have the jurisdiction to in crease the maintenance. But the matter cannot be concluded on the basis of the technical objection raised by the learned counsel. The local council had granted Rs. 60 per mensem as maintenance for the respondent and a daughter of the parties. It is mentioned in the impugned order that the daughter was entitled to receive Rs. 35 per mensem as future maintenance. From this, its can be concluded that the wife bad been allowed Rs. 25 per mensem as past maintenance. But it is again to be noticed that in the operative part of the order, it is mentioned that the past maintenance was allowed to the wife alone. However, the argument of the learned counsel that Rs. 60 per mensem as maintenance was allowed both to the daughter and the mother gets support from the recital of facts by the revisional authority. During the arguments before the said authority, it appears that the learned counsel for the respon dent conceded that the Arbitration Council was not competent to grant main tenance for the daughter. This difficulty having arisen, it also appears that the question arose as to how for this loss to the mother, who was undoubtedly required to maintain the petitioner's child, should be compensated. The reliance from the respondent's side was placed on the admission of the petitioner in his offer before a Panchayat that he was ready to pay Rs. 40 per mensem as maintenance for his wife. Reliance was also placed before the revisional authority on the fact that he was earning Rs. 182 per mensem, therefore, he could provide adequate maintenance to his wife and the child. In these circumstances, without specifically excluding the maintenance granted to the daughter, the revisional authority reduced the amount of maintenance from Rs. 60 per mertsem to Rs. 45 per mensem. Thus, though technically it would mean an increase from Rs. 25 to Rs. 45 per mensem if the case of the wife alone is kept in view, yet for all practical purposes the revisional authority reduced the amount of Rs. 60 to Rs. 45 per mensem; keeping in view that with this amount of Rs. 45 per mensem, the respondent would have to main tain herself as also her child. This reasoning and supposition has not not been controverted by the learned counsel for the petitioner himself; rather he also thinks on the line that the revrsional authority, when faced with the difficulty of exclusion of the maintenance for the child, followed as he put it. an illegal course, by again including the maintenance for the child by way of increase in tile maintenance for the wife. In similar circumstances, a question was raised before their Lordships of the Supreme Court in Ghulam Bari v. Mst. Kaneez Begum and others (1968 S C M R 1432(2)). It was observed as follows;----

"The couple has a minor child and the grievance of the petitioner is the in fixing the amount of the maintenance, the Chairman of the Union Committee as well as the Collector have taken into account the main tenance of the child which is not permissible under section 9 of the Ordinance. The argument is misconceived as the operative part of the order relates to the respondent alone and not to the child. However, the child who is residing with the mother being her responsibility not less than that of the petitioner, the consideration that she has also to maintain him cannot be considered as irrelevant. We do not agree that the impugned order is in violation of section 9 of the Ordinance."

With respect, it is observed that the ratio decidendi in the said case fully applies in the present case as well. I am of the view that, in reality, the revisional authority while reducing the amount from Rs. 60 to Rs. 45 per mensem has kept in view the maintenance of the child for which, undoubtedly, the petitioner was responsible after the separation.

5. There is yet another circumstance. Learned counsel, while discussing .the question of indirect provision for maintenance of the child, has informed that there has been a compromise between the parties after the order of the revisional authority whereby the petitioner gave up his right to custody of the child in consideration of the fact that the wife give up the right to demand separate maintenance for the child. If the revisional authority had not fixed the amount at Rs. 45 per mensem, which obviously included indirectly the maintenance for the child also, the respondent might not have settled the matter of maintenance of the child through a compromise as stated by the learned counsel. In these circumstance, it is doubtful whether the petitioner can be granted any relief in writ jurisdiction, on the basis of a mere technicality.

6. There is yet another circumstance which cannot be ignored in this case. The amount of Rs. 45 included Rs. 40 which the petitioner had admitted before the panchayat, he was willing to pay as maintenance to his wife. This being his own admission and the maintenance, as noted above, of Rs. 45 per mensem (the difference being only of Rs. 5) having in reality been provided for his own child and wife, this Court would not considers such a case fit for exercise of discretion in favour of the petitioner. This being discretionary jurisdiction, I hold that even if the petitioner has some technical ground to urge, it is not fit case for grant of relief. This petition, therefore, is dismissed. There shall be no order as to costs.

S. A. H. Petition dismissed.