ABDUL LATIF vs Mst.BAKHT BHARI and 2 others

' Mst. Bakhat Bhari a neglected wife, on 1-10-1983, filed a claim for maintenance under section 9 of the Muslim Family Laws Ordinance, 1961, before the Chairman Union Council, against her husband.

Vide order dated 15-3-1984 the Arbitration Council, awarded maintenance at the rate of Rs.600 p.m. for a period of four years to Mst. Bakhat Bhari and her children. Future maintenance at the same rate was also awarded. Revision preferred, by Abdul Latif, before the Collector, was dismissed on 15-3-1984. Order of maintenance passed by Arbitration Council maintained in revision by the Collector is under challenge in Constitutional jurisdiction of this Court.

2. I have heard learned counsel for the parties and examined therecord maintained by the Arbitration Council in the case. Learned counsel for the petitioner has contended that the Arbitration Council has no jurisdiction under section 9 of the Muslim Family Laws Ordinance, 1961 to award maintenance to the minor children nor has it jurisdiction to award maintenance for a period exceeding three years preceding the lodging of-the claim. In the instant case, he contends, that the Chairman Arbitration Council, without recording any evidence has passed an order awarding maintenance not only to Mst. Bakhat Bhari but her three children also at the rate of Rs.600 p.m.

Further, the Chairman, under section 9 could award maintenance to the wife only and that too on proof of neglect by the husband for a period of three years preceding the institution of claim. The order passed, therefore, was absolutely without jurisdiction and in flagrant violation of the provisions under which the Arbitration Council was acting. As regards the consent, learned counsel denied that the petitioner was a consenting party to the making of order. It rs also stated that the learned Collector, in revision, has not adverted to these points though these were raised and pressed before him.

3. Learned counsel appearing for Mst. Bakhat Bhari was at pains in defending the impugned order.

He vehemently asserted that the Chairman had jurisdiction to pass the impugned order. It was stated by him that the order of maintenance passed by Arbitration Council in its exclusive jurisdiction under the Muslim Family Laws Ordinance has also been maintained by the revising authority. The writ petitioner himself had consented to the making of the order of maintenance not only for the wife but for his children also. This being a consented order, the counsel contended, it was not open to the writ petitioner to turn around and question the jurisdiction of the Arbitration Council to make the impugned order. He was clearly estopped to raise this objection in Constitutional jurisdiction. Learned counsel also contended, if the Court comes to this conclusion that the Chairman Arbitration Council had no jurisdiction to award maintenance to the minors, the case of Mst. Bakhat Bhari be separated from them and qua her right, the order be maintained. He lastly contended that the petitioner had totally neglected his wife and children and had failed to provide them. main tenance which otherwise was his undoubted responsibility under statute law.

Even if the order suffered from some irregularity or illegality, the Court in its Constitutional jurisdiction was not bound to interfere to set aside an order which otherwise was just and proper in the circumstances of the case.

4. I have given careful consideration to the submission made at the Bar by learned counsel for both the parties. Under section 9 of the Muslim Family Laws Ordinance, a neglected wife can apply for maintenance against his husband. In case, she proves that the husband has neglected/failed to provide maintenance to her, it lies within the juris diction of Arbitration Council constituted under the Ordinance to award A her maintenance past as well as future at the rate commensurate with her needs, consistent with the status of the husband. Unfortunately for her, no provision exists under Family Laws Ordinance, 1961 in regard to the maintenance for minors. Reason for this omission is best known to the Legislature and it is not for this Court to supply. In the absence of such a provision in the Ordinance the Chairman who is a designated authority under the provisions of Muslim Family Laws Ordinance, has no jurisdiction to award maintenance to the minors.

Jurisdiction unless conferred by law cannot be assumed. Similarly thoughB the Arbitration Council has jurisdiction to award maintenance which includes past as well as future, yet it cannot award past maintenance for a period of more than three years preceding the institution of the claim before it. Claim for maintenance beyond three years becomes barred by statute of limitation.

Arbitration Council has awarded main-C tenance at the rate of Rs.600 per mensem for the wife and the three children, without specifying the amount payable to each. Had the Arbitration Council provided maintenance separately for the wife and the minor children in its order, argument raised might have same force on account of principle of severability. It cannot be said with certainty as to what was the amount awarded to the wife and what are the shares of the minor children in the amount of maintenance awarded. Separation in constitutional jurisdiction, therefore, cannot be legitimately made. Order of maintenance passed by the Chairman Arbitration Council maintained in revision suffered from patent lack of jurisdiction. I would not have interfered except for this patent illegality which touched the very jurisdiction of the Arbitration Council. The writ petition is accepted, orders impugned in the writ jurisdiction, therefore, are set aside and declared to have been made without lawful authority. The maintenance case, therefore, is remitted to the. Chairman Union Council Pai Khel, Tehsil and District Mianwali to rehear and redecide the matter after affording an opportunity of hearing to both the parties. Parties are directed to appear before the Chairman on 29-11-1984. The Chairman is directed to decide the maintenance case within a period of one month from the date of the parties appearing before him. In the circumstances of the case, no order as to costs is being made.