HAJIRAN BIBI Versus ABDUL KHALIQ

The facts of the case are that the parties were married on 18-3-1965. They lived together for about 6 months. Thereafter, when respondent No. 3 Abdul Khaliq left for England to earn his livelihood there, according to the petitioner he promised to come back in the near future and take her to England alongwith him but this promise was never fulfilled by him. After respondent No. 3 left Pakistan, some amount as maintenance was sent by him which was received by his parents and was never delivered to the petitioner. They started to maltreating her and ultimately turned her out from their house. Thereafter, she started living with her parents, in a village in Toba Tek Singh, District Faisalabad. According to the petitioner even thereafter she as well as her parents tried their level best for her. maintenance by 'respondent No. 3 but' all such efforts met with no success. The petitioner, however, learnt that some amount was again remitted by respondent No. 3 to his parents as maintenance allowance to be paid to her but the same was again misappropriated by them.

2. Respondent No. 3 came back to Pakistan in 1971 and all efforts for reconciliation made by the petitioner and her parents failed. Respondent No. 3 divorced the petitioner in the month of January, 1972 and, divorce became effective on 31-4-1972.

3. The petitioner filed her suit for grant of maintenance on 3-1-1972 which having been resisted by respondent No. 3 gave rise to as many as two issues as to whether the petitioner was neglected to be maintained by respondent No. 3 and if so how much amount as maintenance and at what rate she was entitled to receive. Issue No. 1 was found by the learned Judge Family Court in favour of the petitioner holding that respondent No. 3 had been negligent in maintaining the petitioner. On Issue No. 2 it was held by him that the past maintenance could not be granted to the petitioner as provision of section 5 of West Pakistan Family Courts Act, 1964 was not an independent provision and the suit for maintenance virtually having been filed- under section 20 of the Act it was an application for grant of maintenance under section 488, Cr. P. C. which empowered the Court to `grant only future maintenance. As a consequence of that the learned Judge, Family Court granted an amount of Rs. 394 in all as maintenance at the rate of Rs. 100 per mensem from the date of institution of the suit up to 30-4-1972 when the divorce became effective.

4. The validity of the judgment was challenged in appeal by the peti tioner which was beard and disposed of by Syed Sibtain, Raza Naqvi, Additional District Judge, Faisalabad by his judgment dated 15-4-1975. The finding of the Judge Family Court that the Family Court was competent only to grant future maintenance, was reversed by 'relying upon Adnan Afzal v. Sher Afzal P L D 1969 S C 187. Nevertheless the .finding that the petitioner was not entitled to past maintenance was upheld on other grounds. The admission on the part of the petitioner in paras. 3 and 5 of the plaint to the effect that some amount for maintenance was sent by respondent No. 3 to his parents for being paid to her but the same was misappropriated by them, has been taken into consideration. It has been held in view of the aforesaid admission of the petitioner, that since some amount was sent by respondent No. 3 as maintenance to her, therefore, she was not entitled to grant of past maintenance and further, since there was no agreement between the parties for maintenance, therefore, on that account too she was not entitled to past maintenance.

5. Reliance in this respect has been plated on para. 278 of Muhammadan Law by D. F. Mulla (14th Edition). This para provides that if the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement. So far as her entitlement to past maintenance is concerned reliance has been placed by Mulla upon Abdool Fulteh v. Zabunnessa (1881) 6 Cal. 631. 1t has been held in that judgment with reference to Hedaya, Vol. 1, page 398 that when a woman sues her husband for maintenance for a time antecedent to any order of the Judge or mutual agreement of the parties, the Judge is not to decree maintenance for the past". According to Islamic .Law as discussed in Muhammadan Law by Syed Ameer Ali (7th Edition compiled by Raja Said Akbar Khan) Vol. II, page 377, when a wife abandons the conjugal domicile without any valid reason, she is not entitled to maintenance. Simple refractoriness, as has been popularly supposed, does not lead to forfeiture of her right but it she leaves the house of her husband against his wishes without any valid reason, she would lose her right, to mainte nance. The same view has been taken in Fattawa-i-Qazi, Vol. I. page 733. According to Hanifi rule of law a husband's liability to support his wife con tinues during the whole period of married life even if separation has taken place in exercise of her right possessed by the wife. The husband, however, would not be liable to support the wife during the Iddat if the separation is caused by her misconduct. Even if a woman refuses to surrender herself to her husband on account of non-payment of her dower, her maintenance cannot be stopped, as the husband is obliged under the law to maintain her unless she disobeys him without a good cause. In that case she will not be entitled to any support or maintenance from her husband. According to Hedaya by Hamilton page 142, printed by Premier Book House, Katchery Road, Lahore, "if a length of time should elapse during which the wife has not received any maintenance from her husband, she is not entitled to demand any for that time, except when the Kazee had before determined and decreed it to her, . or where she had entered into a composition with the husband respecting it, in either of which cases she is to be decreed her maintenance for the time past, because maintenance is an obligation in the manner of gratuity, as by a gratuity is understood a thing due without a return, and maintenance is of this description, it not being held (according to our doctors) to be as a return for the matrimonial property; and the obligation of it is not valid but through a decree of the Kazee, like a gift, which does not convey a right to possession but through seisin which establishes possession". According to the same book from his legal heirs or out of the property of the husband as the case may. The view taken by Imam Shafei is more healthy being inconsonance with the spirit of matrimonial ties as envisaged by Islam.

6. As discussed above according to Islamic injunctions it is the obliga tion of a husband to maintain his wife till she disobeys him without any good cause and that being so a husband is obliged to pay even the arrears of maintenance if not paid during the subsistance of the marriage if the wife has not given any cause for their non-payment. If an obligation under the law has not been fulfilled for sometime by paying the mainte nance, how a husband can be absolved of his responsibility to fulfil that obligation even at a later stage, as such the arrears of maintenance would be considered to be a debt upon the husband who is liable to pay the same . even in the absence of any agreement or a decree in favour of the wife. According to Islam a wife has only to show the case for payment of maintenance allowance that she has been neglected by her husband for such and such time and has not been paid 'maintenance without any fault. If it is found that the husband has been negligent in maintaining her in spit of being obliged under the law to do so then the wife would be entitled not only to future maintenance but even to past maintenance for the period during which she has not been maintained.

7. In 6 Cal. 631, reliance has also been placed upon A Digest of Muhammadan Law by B. E. Baillie, page 100. I am afraid the view taken by Baillie does not support the view taken by Calcutta High Court. According to Baillie "a wife when she has placed herself in the power of her husband, is entitled to her maintenance day by day, and if he refuses to give it, and the day passes,. her. right is confirmed; and so on for other days in succession, though the judge should never have fixed the amount, nor made any order in her favour. If when the husband has agreed to pay her periodically, he has delayed to do so, and the whole period has passed, she being all the while within his power, is fully entitled to the maintenance for that period, and for any excess during which she has maintained herself out of other means". The learned Judges of Calcultta High Court in the aforesaid report had probably construed from the language as used in the latter sentence that in the absence of an agreement between the parties the payment of arrears of maintenance would not be liable to be made. Both the aforesaid sentences are to be read together. The first sentence clearly shows that a wife would be entitled to recover her arrears of maintenance even in the absence of any agreement or a decree and in the case of absence of an agreement between the parties for payment of maintenance she will be all the more within her right to claim past maintenance. It is nowhere mentioned that in the absence of any agreement between the parties she would not be entitled to the past maintenance.

8. As such the learned Additional District Judge has wrongly and illegally held that in the absence of an agreement between the parties the petitioner is not entitled to payment of past maintenance. In the light of the above discussion she is fully entitled to payment of past mainte nance for a period of three years preceding the date of institution of the suit being 3rd of January, 1972 as well as the future maintenance till 31-4-1972 when the divorce became effective. The rate of maintenance being Rs. 100 -per mensem though meagre in view of present days' necessities of life, cannot be raised by 'this Court in the present proceedings as the same has been determined after due appraisal of the relevant material.

9. The effect of the provisions as contained in sections 5 and 20 of the West Pakistan Family Courts Act, 1964, upon the provisions of section 488, Cr. P. C. has been considered in detail in Adnan Afzal v. Sher Afzal . It has been held that a comparison of provisions of section 488, Cr. P. C. and of the West Pakistan Family Courts Act, 1964, indicates that the provisions of West Pakistan Family Courts Act are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal. Further more, the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, in any way, diminishing or curtailing, rights already possessed by a. litigant with regard to the scheduled matters. It has been held that looking at the provisions as whole it is therefore, clear that all that the Family Courts Act has done is that it has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has, thus, is every sense of the term, brought about only procedural changes and has not affected any substantive right. It has been held that according to the general rule of interpretation, therefore, a procedural statute in to be given retroactive effect unless the law contains a contrary indication, and there being no such indica tion in the Family Courts Act, the Act affected also pending proceedings and the Magistrates have no longer any jurisdiction either to entertain, hear or adjudicate upon a matter relating to maintenance.

10. According to the aforesaid judgment of the Supreme Court the provision as contained in section 488, Cr. P. C. has become redundant and question of conferring powers upon the Family Court under that provision may not arise at all. The Family Court has now exclusive jurisdiction to entertain, hear, or adjudicate upon the matter relating to maintenance.

11 . It has .been argued by the learned counsel for the respondents while relying upon section 20 of the Family Courts Act, 1964 that since all Family Courts have been invested with the powers of section 488, Cr. P. C. therefore, the suit filed by the petitioner can only be treated as an applica tion under section 488; C. P. C. and as such under the law past mainte nance cannot be granted, the same being prohibited under the aforesaid provision. This argument is no more available in the light of the aforesaid judgment of the Supreme Court. The provision as contained in section 488, Cr. P. C. having become redundant can no more be availed of in spite of the- provision of section 20 of the Family Courts Act, 1964. As held by the Supreme Court that it is the Family Courts which has got -exclusive jurisdiction to entertain, hear and adjudicate upon the matter relating to maintenance. Even otherwise as held in Mst. Razia Begum v. Mst. Sardar Begun and others P L D 1978 Lah. 696, Saleem Ahmad v. Mst. Khadija Begun and 2 others P L D 1977 Kar. 469, and Muhammad Yousuf v. Mst. Nafisa Khatoon and another P L J 1978 Kar. 404, the Family Court has jurisdiction to grant past maintenance to a wife on her suit filed under section 5 of the Act of 1964. In the present case the learned Judge Family Court has been treating the suit having been filed under section 5 of the Family Courts Act, 1964 read with Item No. 2 of the Schedule and not as an application under section 488, Cr. P. C. The conferment of powers under section 488, Cr. P. C. upon the Family Courts under section 20 of the Act of 1964 would not mean that a matte relating to maintenance would be decided by a Judge, Family Court only as, a Magistrate under the aforesaid provision of law. Since the suit m the present case was never treated to have been filed as an application under section 488, Cr. P. C., therefore, the argument advanced by the learned counsel for the respondents has no substance. An application under section 488, Cr. P. C. can no more be entertained or decided by a Magistrate as held in P L D 1969 S. C, the aforesaid provision having become redundant . ,

12. It may be mentioned here that it has been found by the learned trial Court that respondent No. 3 has been negligent in maintaining the petitioner. This finding has not been reversed by the Appellate Court. However, it has been found that since some amount was sent by respondent No. 3 to the petitioner at different times though not actually received by her, therefore, she was not entitled to past maintenance. This view is erroneous under the law. The arrears of maintenance being debt upon the husband and he being obliged under the law to maintain his wife he is liable to pay the past maintenance. If an amount is due to a person and is not received by him in spite of having been sent to a third person for the purpose of delivering it to the creditor, it would not mean that since that amount has been sent though not received by the creditor the debtor would be absolved of payment of the amount of debt. Since the petitioner has not received any amount of maintenance even according to the finding of the learned Appellate Court, therefore respondent No. 3 under the law is obliged to pay the past maintenance for a period of three years prior to the institution of the suit at the rate of Rs. 100 per mensem.

- 13. As a result of the above discussion both the impugned orders passed by the Judge Family Court as well as the learned Additional District Judge, being illegal and without jurisdiction, are hereby set aside. The writ petition stands accepted with costs in the terms stated above.

S. Q. Petition accepted.