MUHAMMAD NAJEEB vs Mst. TALAT SHAHNAZ and others
These two petitions arose from family disputes where the petitioners were directed to pay maintenance to a wife and minor children, respectively. After their constitutional petitions were dismissed by the High Court, the petitioners sought leave to appeal. The Supreme Court of Pakistan examined whether an ex-wife could apply for maintenance under Section 9 of the Muslim Family Laws Ordinance 1961 for the period when the wedlock was intact and for the iddat period. The Court held that an application by a divorced wife for maintenance covering the period of intact wedlock and the iddat period is competent, as she is covered by the term 'wife' within the meaning of Section 9 of the Ordinance. Regarding the second petition, where the petitioner argued that a minor daughter had married and was no longer entitled to maintenance, the Court noted this point was not raised before the trial court and dismissed the petition, allowing the petitioner to apply to the trial court for variation of the maintenance order.
- Can a divorced wife apply for maintenance under Section 9 of the Muslim Family Laws Ordinance 1961 for the period when the marriage was intact and for the iddat period?
- Is a divorced wife considered a 'wife' under Section 9 of the Muslim Family Laws Ordinance 1961 for the purpose of claiming past maintenance and iddat maintenance?
- Can a petitioner raise a new factual plea regarding a minor child's marriage and maintenance entitlement for the first time before the appellate or constitutional court without having raised it before the trial court?
- Section 9, Muslim Family Laws Ordinance 1961
1. ' MUHAMMAD AFZAL ZULLAH, J.--These two petitions by the husband's side, have arisen out of two separate family matters. The petitioners were directed to pay maintenance in the first case to the wife and in the second petition to the -minor children. The petitioners' Constitutional petitions having been dismissed by the High Court, they have now sought leave to appeal. , ' After hearing the learned counsel in support of the respective petitions, we have not been able to find any error in the impugned judgments or the orders impugned before the High Court in so far as the merits are concerned. Therefore, they are liable to be dismissed on this ground alone.
2. Nevertheless, we heared both the learned counsel on technical questions also raised by them. In the first petition the argument of the learned counsel that section 9 of the Family Laws Ordinance speaks of a 'husband' and a 'wife'. The petitioner having divorced the respondent wife therein, she could not have made an application as a 'wife', for maintenance. We do not agree with him. When an application is made by an ex-wife for maintenance regarding period when the wedlock was intact and also for the Iddat period it would be made by the so-called divorced wife and would be covered by the word "wife" as contained in Section 9. Therefore, there is no force in the argument of the learned counsel.
3. ' In the second case, the learned counsel for petitioner states that one of the minors--the daughter of the petitioner having contracted a marriage she was not entitled to receive maintenance from the petitioner. If at all she is entitled to maintenance from her husband. This point, it is admitted by the learned counsel, was not raised before the trial Court. If so advised the petitioner may make an application before the trial Court for variation of the order regarding the maintenace. With these observations, the second petition also merits to be dismissed.
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