MUHAMMAD NAWAZ vs Mst. KHURSHID BEGUM AND 3 Other

1. WAUEEDUDDIN AHNIAD, J.-'This appeal by special leave is directed against the order of the former High Court of West Pakistan, Lahore, in Writ Petition No. 835 of 1969, dated the 15th December 1969.

2. By this judgment, a Division Bench of the High Court dismissed the writ petition in limine.

3. Respondent No. 1 was married to the appellant about 10 years ago. She moved an application to the Chairman, Union Council No. 3,9, Mari Shah Sakhira, Tehsil and District Jhang, that she was maltreated by the appellant and was turned out of the house. During the period of their stay together, they had two children from the marriage. She j prayed that as her husband was not keeping her with him he should be ordered to pay monthly maintenance allowance under the Muslim Family Laws Ordinance, 1961. The Chairman, Arbitra--tion Council, on the 7th December 1968, ordered the appellant to pay maintenance allowance at the rate of Rs. 60 per month to his wife from 1st March 1968 to 31st December 1968. He also ordered the appellant to pay maintenance allowance for the past period from 1st May 1962 to 29th February 1968, at the same rate. The appellant challenged this order in revision before the Controlling Authority, namely, the Collector, Jhang. This revision was dismissed by order dated the 17th November 1969. The appellant challenged these orders in the above writ petition under Article 98 of the late Constitution. It was contended before the High Court that under the above mentioned Ordinance, the Arbitration Council had no authority to order payment of arrears of maintenance and past maintenance and the maintenance awarded by the Chairman, Arbitration Council was barred by limitation. The other grievance was that the order of the Arbitration Council was passed ex parte without giving the appellant any opportunity of being heard. The High Court repelled these contentions. It had relying on an earlier decision of its own in the case of Sardar Muhammad v. Nasima Bibi and others (PLD 1966 Lah. 703) that past maintenance can he allowed. Being aggrieved by this order, the appellant moved this Court and obtained special leave to consider the above-mentioned questions.

4. In support of the appeal, Mr. Rafique Ahmad Bajwa, learned counsel for the appellant has urged three points. Firstly, that under the Muslim Family Laws Ordinance, past maintenance cannot be allowed. Secondly, that the order of the Arbitration Council was passed ex parte without giving the appellant any opportunity of being heard, and thirdly, that the Arbitration Council could not pass two orders one after the other.

5. I will take up these points separately.

6. So far as the first point is concerned, the learned counsel for the appellant referred to the following passage of Hedaya at page: 142 by Charles Hamilton :---- "Arrears of maintenance not due unless the maintenance have been decreed by the Kazee or the rate of it previously determined on between the parties.--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 bad 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 a 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 propriety; 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; but a composition is of equal effect with a decree of the Kazee, in the present case, as the husband, by such composition, makes himself responsible, and his power over his own person is superior to that of the Magistrate.-This reasoning does not apply to the case of dower, as that is considered to be a return for the use of the wife's person."

7. He further referred to paragraph 278 of Mulla's Principles of Mahomedan Law (16th Edition), which reads as under:- "278. Order for maintenance.-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. Or, she may apply for an order of maintenance under the provisions of the Code of Criminal Procedure, section 488, in which case the Court may order the husband to make a monthly allowance for her maintenance not exceeding five hundred rupees."

8. These authorities were considered by the former High Court of West Pakistan, Lahore, in a well- considered judgment in the case of Sardar Muhammad v. Nasima Bibi and others (PLD 1966 Lah.

9. 703). It was held as under :- '

10. "Further support is lent to the latter view from the fact that the competency 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 excerpt from Hamilton's Hedaya quoted earlier which reads 'Arrears of maintenance not due unless have been decreed by the Kazee.'

11. 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 therefrom. The mere fact that a neglected wife has been hesitant in promptly coming to the Court or has been pursuing alterna--tive remedies out of Court cannot in all fairness be so construed as to deprive her of the right of maintenance 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."

12. The learned counsel for the appellant was unable to satisfy us that the view taken by the High Court 19 faulty or that it is not in accordance with law. We agree with this view and hold that past maintenance can be allowed.

13. It further appears to us that on the language of section 9 of the Muslim Family Laws Ordinance, 1961; which is reproduced below, there is no prohibition for granting past maintenance: "9. Maintenance.-(1) If any husband fails to maintain h19 wife adequately, or where there are more wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may in addition to seeking any other legal remedy available apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitra--tion Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband.

(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 case 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.

(3) Any amount payable under subsection (1) or (2) if not paid in due time, shall be recoverable as arrears of land revenue: '

14. As opposed to this, under section 488 of the Criminal Procedure Code, which is reproduced below, the monthly allowance can be ordered to be paid only from the date of the order or from the date of the application :- "488.-(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding four hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.

(3) ------------------------------------- The Legislature must have been conscious of the phraseology of section 488, Cr. P. C. In spite of that it did not place any restriction on the powers of the Arbitration Council to award maintenance.

15. In our opinion, under this provision of law, the Arbitration Council is competent to award maintenance for the past subject, of course, to the question of limitation. In the present case, the High Court has considered the question of limitation and has come to the conclusion that Article 120 of the Limitation Act applies to the facts of the present case and the claim of the respondent was not barred, by limitation. In this view of the matter, we are satisfied that the High Court has rightly held that the Arbitration Council was competent to award past maintenance.

16. It was next contended that the order of the Arbitration Council was ex parte, that no opportunity was given to the appellant, and, therefore, it offends against the principle of natural justice. The contention of the learned counsel has no force. The file of the record was seen by the Collector and he has found the following facts from it:- "The Chairman had tried his level best to secure attendance of Muhammad Nawaz petitioner who is working as clerk in the Audit Office at Lahore. Several notices were sent to him directly and then through his office and again on another address given by the petitioner. The petitioner, however, failed to appear and it is clear from the file that he avoided from being served."

17. This is a finding of fact and this Court seldom interferes with such finding. It is clear from this that several attempts were made to serve notices on the appellant but he avoided the service. The service of notice was also effected on him through his office and in spite of this he failed to appear before the Arbitration Council. This contention therefore, fails.

18. The last contention that the Arbitration Council could not pass two orders one after the other has also no force. The first order was passed by the Arbitration Council on the 20th March 1969, which is as under :----- "According to the order dated 19-3-1969, of the Controlling Authority, (Collector Basic Democracy)

19. District Jhang and with reference to the order of Arbitration Council dated 7-12-1968 under section 9(1) of the Muslim Family Laws Ordinance, 1961, the Arbitration Council after careful consideration of all the facts decided and is issuing a certificate that Muhammad Nawaz son of Ghulam Yasin caste Dehr resident of Lahore has been found not to fulfil his family responsibilities and he is neither caring to maintain his wife and children nor keeps them with him. Hence the said Muhammad Nawaz should pay to his wife Mst. Khurshid Begum daughter of Faiz Ahmad resident of Mauza Mari Shah Sakhira, Tehsil and District Jhang, in cash Rs. 3,600 as maintenance allowance from 1-5-1962 to 29-2-1968 (5 years 10 months)"

20. The second order was passed on the 11th April 1969, which is as under:--- "We, with the 2/3rd majority of opinion order that the said Muhammad Nawaz should pay to his wife Khurshid Begum Rs. 600 (six hundred) at the rate of Rs. 60 p. m. For a total period of 10 months from 1-3-68 to 31-12-1968."

21. These two orders relate to different periods for grant of mainte--nance. In our opinion, the Arbitration Council was quite competent to consider the question of maintenance in two sittings and pass orders accordingly. There is no flaw in these orders. This contention is also repelled.

22. After careful consideration of the points raised by the learned counsel for the appellant, we are satisfied that the High Court has decided the matter rightly and there is no ground to interfere.

23. In the result, the appeal is dismissed with no order as to costs.