Sardar Abdul Hameed Khan, J-- Through the instant appeal by leave of the Court, the appellants call in question the validity of the consolidated judgment and decree passed by the Shariat Court on 25.3.2017 in civil appeals No. 26, 30 and 31 of 2016.
2. The brief facts forming the background of the titled appeal are that Mst. Safina Chaudhary, the plaintiff- appellant, herein, brought a suit for recovery of maintenance allowance for her and the minor son, appellant No.2, herein, before the Judge Family Court, Mirpur on 27.8.2013. It was averred in the plaint that the marriage was solemnized between the spouses in accordance with 'Shariah' on 27.5.2012. After solemnization of the marriage, the plaintiff remained populated with the defendant-husband for a period of one year, however, during the said period of wedlock, the behaviour of the defendant towards the appellant-No.1 (plaintiff) being very harsh in nature caused the mental torture to the plaintiff. It was further alleged that besides the cruel attitude of the defendant-husband, he used to beat the plaintiff for several times. Out of the wedlock, a male child, plaintiff- appellant No.2, herein, was born but the defendant never paid the maintenance charges to the plaintiff and the minor since his birth. It was stated that the plaintiff (wife) time and again, demanded the maintenance charges for her and the minor son, but the defendant (husband) refused to pay the same. At last, in July, 2013 on demand of maintenance charges, the defendant and his other house members after beating her ousted her along with the minor from the house. After this ouster, the appellant filed suit No. 85 on 27.8.2013 (relisted on 10.6.2014) for maintenance allowance for herself and her minor son for the past and future at the rate of Rs.
10,000/- per month. The suit was contested by the defendant-respondent, herein, while refuting all the allegations pleaded by the plaintiffs. The defendant-respondent claimed that he had paying regularly the maintenance charges to the plaintiffs and he never tortured or physically assaulted the plaintiff (wife) as claimed by her. During the pendency of the suit for recovery of the maintenance allowance, another suit No. 86 for dissolution of the marriage was filed by the plaintiff (wife) on the ground of cruelty, non-maintenance as well as non-performance of conjugal rights on 19.3.2014. The suit was contested by the defendant-respondent by filing the written statement. After conducting the necessary proceedings, the learned Judge Family Court, Mirpur vide consolidated judgment dated 27.1.2016 decreed the suit for dissolution of marriage on the ground of cruelty and non-maintenance, whereas, the suit filed for recovery of maintenance allowance was also decreed and the plaintiff (wife) was declared entitled to get the maintenance allowance at the rate of Rs. 4,000/- per month w.e.f.
July, 2013, till the expiry of the period of 'Iddat' and the minor at the rate of Rs. 3,000/- per month for the past and the future maintenance. Feeling aggrieved from the judgment and decree of the trial Court dated 27.1.2016, the plaintiff-appellants, herein, filed appeal for further enhancement in the amount of maintenance allowance, whereas, the defendant-respondent, herein, filed two appeals; one against the decree for dissolution of marriage and the other against the decree for grant of maintenance charges. The learned Shariat Court, after necessary proceedings, through the impugned consolidated judgment dated 25.3.2017 dismissed the appeal filed by the appellants, herein, whereas, the appeal filed by the defendant-respondent, herein, against the decree passed for grant of maintenance was partly accepted and the decree was modified in the terms that the plaintiff (wife) would only be entitled to get the maintenance allowance from the date of desertion till the date of institution of the suit for dissolution of marriage. The decree granted for the maintenance to the minor was upheld. The appeal filed by the defendant (husband) against the decree for dissolution of marriage was dismissed. Feeling dissatisfied, the appellants, herein, filed the instant appeal by leave against the judgment and decree passed by the Shariat Court on 25.3.2017.
3. Ch. Muhammad Ashraf Ayaz, Advocate, the learned counsel for the plaintiff-appellants, while reiterating the grounds incorporated in the memo of appeal submitted that the impugned judgment of the Shariat Court is against law, the evidence and the record, hence, not sustainable in the eye of law. The plaintiff-appellants while producing the cogent and reliable evidence proved their case for grant of the maintenance charges at the rate, claimed by them but the trial Court as well as the learned Shariat Court failed to award the claimed amount. The learned counsel further submitted that the defendant-respondent willfully deserted the plaintiff-appellants and failed to pay the maintenance charges throughout the period, as such, the act of non-payment of maintenance was proved by producing evidence. He argued that the defendant-respondent possesses the sufficient means to pay the maintenance charges at the rates claimed by the plaintiff-appellants but the trial Court as well as the Shariat Court awarded a meager amount which is very much insufficient to meet the necessities of the routine life in the prevailing era. The learned counsel vehemently contended that the trial Court granted the maintenance charges to the plaintiff (wife) from July, 2013 till the expiry of the period of 'Iddat' but the learned Shariat Court without any justification and against law modified the decree of the trial Court and declared the plaintiff (wife) to be entitled to get the maintenance from the date of desertion, till the institution of the suit for dissolution of marriage. The learned counsel further submitted that the appeal was filed before the Shariat Court by the defendant-respondent, against the decree for grant of maintenance but the learned Shariat Court while rendering the judgment impugned granted the relief to one, Parveen Bibi, instead of the appellant, (Mst. Safina Bibi). The learned counsel further argued that the judgments and decrees of the Courts below suffer from misreading and non-reading of evidence as the plaintiff-appellants by producing evidence proved the sufficient income and the source of income of the defendant-respondent but the evidence and record has not been properly appreciated. The learned counsel in support of his submission referred to and relied upon the cases reported as Mst. Zaibun vs. Mehrban [PLJ 2004 SC (AJ&K) 90], Nazish Shabir vs. Basit Iqbal Khan & another [2015 SCR 400], Khalid Mehmood vs. Parveen Akhter & another [2015 SCR 512], Muhammad Khurshid vs. Ghulab Jan & 3 others [2016 SCR 447] and an unreported case titled Shahzad Rauf vs. Shabana Yasmin, (Civil Appeal No. 102 of 2017, decided on 19.5.2017).
4. While controverting the arguments advanced on behalf of the plaintiff-appellants, Mr. Abdul Wahid Aamir, Advocate, the learned counsel for the defendant-respondent, submitted that the impugned judgment of the Shariat Court is perfect, legal and based on record and the evidence. The learned counsel submitted that on the basis of the evidence brought on record, the Courts below while keeping in view the economic position of the defendant-respondent awarded a reasonable amount for maintenance to the plaintiff-appellants, therefore, the concurrently recorded findings based on record and evidence cannot be interfered with by this Court. He submitted that the defendant-respondent is a truck driver and he earns an amount of Rs. 12,000/- to 14,000/- per month and he has to look after his parents and the other family members within this limited income, thus, the prayer for enhancement in the maintenance charges as claimed by the plaintiff-appellants cannot be accepted. The learned counsel while supporting the impugned judgment contended that the leaned Shariat Court has rightly declared the plaintiff (wife) to be entitled for maintenance from the date of desertion, till institution of the suit for dissolution of marriage as the marriage was dissolved on the ground of non-payment of maintenance. The learned counsel in support of his submission referred to and relied upon the cases reported as Mst. Amreen vs. Muhammad Kabir [2014 SCR 504], Khalid Mehmood vs. Parveen Akhter & another [2015 SCR 512], Muhammad Zaheer-ud-Din Babar vs. Mst. Shazia Kousar & another [2015 SCR 621]. The learned counsel requested for dismissal of appeal filed by the appellants.
5. We have heard the arguments pro and contra and carefully perused the available record in the light of the submissions made by the learned counsel representing the contesting parties. The plaintiff-appellants, herein, filed two suits; one for recovery of maintenance charges Rs. 10,000/- per month for each appellants and the other for dissolution of marriage. As the decree passed in the suit for dissolution of marriage was challenged by the defendant-respondent before the Shariat Court and after dismissal of the appeal through the impugned judgment, no further appeal has been preferred, thus, the instant appeal only confines to the decree granted for maintenance charges. The trial Court awarded the maintenance charges to the tune of Rs. 4,000/- per month to appellant No. 1 (Safina Chaudhary) from July, 2013 till the expiry of the period of 'Iddat' and in favour of the minor, namely, Banyameen, at the rate of Rs. 3,000/- per month from July, 2013 to onwards. On appeal, the Shariat Court modified the decree passed by the trial Court in the manner that the plaintiff (wife) is only entitled to get the maintenance from the date of desertion, till the date of the institution of suit for dissolution of marriage.
The learned counsel for the appellants, vehemently argued that the Courts below without considering the evidence brought on record awarded the meager amount instead of the amount claimed, which is insufficient to meet the necessities of the life. To appreciate the issue of quantum of maintenance, we have carefully perused the record and evidence brought on record. In the plaint filed by the plaintiff-appellants, in paragraph 7, it is claimed that {{URDU TEXT}} In support of the averments made in ground 7 of the plaint reproduced hereinabove, while recording the statement, Safina Chaudhary, plaintiff (wife) deposed that:- {{URDU TEXT}} One of witnesses, Muhammad Mushtaq produced by the plaintiffs deposed in his statement that:- {{URDU TEXT}} Another witness of the plaintiff, Aftab Hussain deposed as under:-- {{URDU TEXT}} This witness in the cross-examination further deposed that:-- {{URDU TEXT}} As against the defendant-respondent in the written statement contended that his monthly income is Rs. 12,000/- to 14,000/- per month, while recording his statement has deposed that:-- {{URDU TEXT}} The perusal of the above reproduced portions of the pleadings and the statements, it is clear that the plaintiff in his plaint have averred that the defendant-respondent is an owner of the truck, whereas, while recording the statement, she has deposed that he is the owner of two vehicles i.e. trucks. The depositions made by the witnesses are also contrary to the averments made in the plaint. Moreover, no proof regarding the ownership of the vehicles i.e. registration in the name of the defendant-respondent or vehicle/truck number has been brought on record by the plaintiffs. Now it is well settled that in civil proceedings, the Courts have to adjudicate upon the disputed matters on the preponderance of the evidence wherein no concrete evidence is available. The Courts always record the findings in favour of such party in whose favour the preponderance of evidence leans. The defendant-respondent has admitted that being a truck driver, he earns Rs. 12,000/- to 14,000/- per month and in rebuttal the plaintiffs failed to produce any cogent evidence that the income of the defendant is more than that he has admitted. Thus, the trial Court while evaluating the evidence brought on record has recorded the well reasoned findings on the issues of quantum of maintenance. The Courts have time and again in the matters as in hand, held that the maintenance charges cannot be ordered to be paid by a husband/father beyond his financial position. Under the principle of administration of justice, no one can be burdened to pay the maintenance beyond his capacity. Moreover, Islam does not compel a person to do an act beyond its capacity, therefore, the social status of husband/father, the level of legitimate financial sources which are eminent factors for deciding the quantum of maintenance, shall not be ignored. Reference may be made to a case reported as Mst. Amreen vs. Muhammad Kabir [2014 SCR 504], wherein it was observed as under:-- "24. It is on record that the respondent is working abroad and has contracted a second marriage. He is maintaining his second wife. He is a resourceful person. The Court has power to grant maintenance charges keeping in view the financial position of the father and his economic resources. The Court has power to pass a decree which is executable.........."
Similarly, in a case reported as Muhammad Nazim vs. Muneer Akhtar and 2 others [2014 PSC 1136], it has been held as under:-- "The plaintiff and minors are entitled for maintenance charges. Now the question which needs resolution is whether the appellant has the capacity to pay the maintenance charges or not. The plaintiffs, respondents herein are the wife and daughters of the appellant. They have claimed only Rs. 5.000/- per month as Rs. 2000/- for the wife and Rs. 1500/- each for minors. The plaintiffs alleged in the suit that the defendant has the capacity to pay Rs. 5000/- while the defendant claimed in the written statement that he is Rikshaw driver and cannot pay Rs. 5000/-. It is settled law that the husband or father cannot be burdened for payment of maintenance charges more than that of his capacity and maintenance charges capacity...."
6. Thus, on the basis of what has been discussed above and the case law reproduced hereinabove, it can safely been held that the Courts below while fixing the quantum of maintenance per month, have not committed any illegality and we affirm the same.
7. Now, we advert to the argument, advanced by the learned counsel for the appellants that the Shariat Court while modifying the decree of the trial Court has illegally held that the plaintiff (wife) is only entitled to get the maintenance allowance from the date of desertion, till the date when she filed the suit for dissolution of marriage. From the perusal of the judgment of the trial Court, it appears that the trial Court granted the maintenance charges from July, 2013 till the expiry of the period of 'Iddat', whereas, the Shariat Court through the impugned judgment curtailed the period and declared the plaintiff (wife) entitled only for payment of maintenance allowance for the intervening period of desertion, till the institution of the suit for dissolution of the marriage. It may be observed here that the dissolution of marriage on the basis of cruelty, non-maintenance etc. is provided by the statutory provisions of law and after dissolution of marriage of any character, the observance of 'Iddat' is compulsory for the divorcee. The 'Iddat' may generally be described as "the term by the completion of which a new marriage is rendered lawful" or as the period during which a woman is prohibited from marrying again after dissolution of her marriage, or during which a previously existing marriage is for certain purposes, considered to be un-dissolved notwithstanding that the husband has died or pronounced a divorce. The 'Iddat' may be described as the period during which it is incumbent upon a woman, whose marriage is dissolved by divorce, or death of her husband to remain in seclusion, and to abstain from marrying any of other person. The abstinence is imposed to ascertain whether she is pregnant by the former husband. The period of 'Iddat' varies, when the marriage is dissolved. If the woman is subject to menstruation, the period is three courses, if she is not so subject, it is three lunar months. If the woman is pregnant the period of Iddat will terminate upon delivery.
When the marriage is dissolved by death, the duration of Iddat is four months and ten days. The object behind the observance of period of Iddat is that if any woman is pregnant then the parentage of a minor can easily be ascertained.
8. The observance of 'Iddat' is compulsory after dissolution of marriage of any character whether it is dissolved by death, divorce or 'khula' or on any other ground. . So far as the maintenance for the period of 'Iddat' is concerned, although, there are divergent opinions amongst the jurists representing the different school of thoughts, however, the Courts have unanimously held that the divorcee wife is entitled to get the maintenance allowance during the period of 'Iddat'.
9. It will be appropriate to benefit ourselves with commentary/narrative studies and translations of the verses of the Holy Quran by eminent/renowned religious scholars/Islamic jurists to resolve the moot point. Hence, herein below, the relevant scripts of the translation/Tafseer (commentary/narrative) by their lordships Mufti Muhammad Taqi Usmani, Peer Muhammad Karam Shah Al-Azhari and Dr. Tanzeel-ur-Rehman are reproduced:--
1. The translation of Verse No. 228 of Sura Al-Baqara by Mufti Muhammad Taqi Usmani in his translation/short Tafseer of Holy Quran {{URDU TEXT}} reads as follows:-- {{URDU TEXT}} While interpreting the above Verse, the learned scholar observed that:-- {{URDU TEXT}} The translation of Verse No. 241 of Sura Al-Baqara reads as follows:-- {{URDU TEXT}} While interpreting the above Verse, he observed that:-- {{URDU TEXT}} The translation of Verse No. 1 of Sura Al-Talaq reads as follows:-- {{URDU TEXT}} While interpreting the above verse, he observed that:-- {{URDU TEXT}} The translation of Sura Al-Talaq, Verse No. 2, is as under:-- {{URDU TEXT}} While interpreting the above verse, he observed that:-- {{URDU TEXT}} The translation of Sura Al-Talaq, Verse No. 4, is as under:-- {{URDU TEXT}} While interpreting the above verse, he observed that:-- {{URDU TEXT}}
2. Peer Muhammad Karam Shah Al-Azhari while interpreting the above verse No. 241 of Sura Al-Baqara in his Tafseer "Zia-ul-Quran" Vol. 1, page 167, observed as under:-- {{URDU TEXT}}
3. Dr. Tanzeel-ur-Rehman in his book,{{URDU TEXT}} in Vol. 1 at page 239 has observed that:-- {{URDU TEXT}}
9. We have also gone through a report of Law and Justice Commission of Pakistan as well as the Council of Islamic Ideology downloaded from (www.Ljcp.gov.pksreports_of_LJCP). The matter of post divorce, {{URDU TEXT}} for wife, came under consideration of Law and the decree is executed. Two issues were framed; (a) whether that would be a valid 'Talaq'. If pronounced only to defeat the Justice Commission of Pakistan through a petition received from a woman, whereby, she has obtained the decree of maintenance against her husband and he (husband) threatened to divorce her in case decree of maintenance; and, (b) whether there was any need of fresh 'Ijtehad' in that regard. After detailed deliberation it was opined that:- "By providing the aforesaid modes of Talaq, Islam directs the husband to provide maintenance to wife during iddat period and no to eject her from his house till the expiry of iddat period, and also makes it obligatory for the wife to spend such period in her husband's house. By this, it provides a chance of 'Rujoo' (revocation of Talaq) during iddat. However, the right of rescinding the contract of marriage, by husband is regarded as unqualified."
While referring to the Verses No. 240-41 of Surah Al-Baqarah, it has further been quoted that:-- "Those of you who died and leave widows should bequeath for their widows year's maintenance and residence; but if they leave (the residence), there is no blame on you for what they do with themselves. Provided it is reasonable. And Allah is Exalted in power, Wise". "For divorced women maintenance (should be provided) on a reasonable (scale). This is a duty on the righteous". (II:240-41)
In this context, the Secretariat of the Commission re-examined the issue of Post Divorce Mata'a {{URDU TEXT}} for wife in the light of Qur'an and Sunnah and personal laws enacted by a number of Muslim Countries including Egypt, Iraq, Tunisia, Brunei-Darussalam and Turkey and sent the matter to the Council of Islamic Ideology for opinion. The Council of Islamic Ideology after going through the issues framed by the Law and Justice Commission in its 134th meeting held in November, 1998 opined that:-- {{URDU TEXT}} Furthermore, we have also gone through a general article published by Indian Law Institute download source (URL:http://www.Jstor.org/stable/ 42950703), wherein, on the topic of maintenance of a divorced Muslim wife, it has been written as under:-- "Maintenance of a Divorced Muslim Wife: A Critique of the Proposed Law.
A WFIFE's right to be maintained by her husband has been recognized by all communities in varying degrees.
The personal laws of Hindus, Christians, Jews and Parsis make statutory provisions imposing an obligation on the husband to maintain his wife including a divorced wife till she remarries. A Muslim wife has no such statutory right to claim maintenance from her husband (apart from the rights conferred under the provisions of the Code of Criminal Procedure, 1973) but the Muslim personal laws provide for the husband's obligation to maintain her in a limited way. The obligation of a husband to maintain his wife subsists not only during coverture but even upon dissolution of the marriage by divorce or annulment.
A Muslim husband is obliged to maintain his divorced wife only up to the period of iddat and thereafter, his liability is over. The period of iddat upon divorce is three menstrual courses (if the wife is in that stage) or otherwise three lunar months. In case the wife is pregnant, the period would extent up to the time of delivery or abortion even if it extends beyond the period of iddat, i.e. three months. If however the wife delivers before that period the period of iddat will terminate with that event. A divorced Muslim wife becomes entitled to her unpaid dower (mahr) which becomes payable immediately on divorce. Also under the Dissolution of Muslim Marriages Act, 1939, a wife on dissolution becomes entitled to her unpaid mahr and maintenance during the period of iddat. Under the provisions of the Code of Criminal Procedure, 1973, which is applicable to all sections including Muslims, a wife who is unable to maintain herself is entitled to be maintained by her husband. This right of maintenance extends even to a divorced wife until she remarries."
Another article written by Sharmin Aktar, published in "The Northern University Journal of Law", download sources (UR:L:http://www.Jstor.org/stable/42950703) on the topic of "Protecting Divorced Muslim Women Rights through Maintenance. A Comparative Analysis based on the present Legislative among the Muslim Community has been made as under:-- "..........After divorce, she is entitled to maintain during the iddat period but not during the iddat following the death of her husband. Islamic law grants a Muslim wife right to maintenance from her husband not only during the subsistence of the marriage but also reasonably after dissolution of the marriage. There is no controversy that the husband is bound to maintain the wife during the three months of iddat period, but there is a considerable controversy whether the maintenance extends beyond the iddat period. It has been specifically provided in the Holy Qur'an that the divorced women shall wait for remarriage for three monthly periods and the woman in iddat live in the same style as you live, according to your means. It is also provided that for divorced women maintenance should be provided on a reasonable scale.
The concept of long term maintenance of a woman after her iddat period is known as mutat and generally extends till her death or remarriage to another man. In the Qur'an the word mutat has been used in the context of maintenance and gift, but is should not be confused with nafaqah (maintenance) or mahr (dower) as the three have existed as independent institutions of Islamic law. In Islamic legal tradition the term also refers to mut'at al- talaq or nafaqah al mut'a, i.e., a payment by the husband to his wife upon divorcing her."
The author of the article while making the comparative analysis of the laws regarding the process of divorce maintenance in different countries i.e., Bangladesh, Pakistan, India, Syria, Jordan, Algeria, Malaysia, Morocco, Tunesia, Libya, Egypt, Turkey and Iran has concluded as under:-- "The effective implementation of maintenance rulings for wives and children where husbands are able but unwilling to meet their obligations in this regard is a major preoccupation for poor women, although their voices were not the first to be heard in the efforts to reform family law in the region. In the words of Justice Mustafa Kamal: 'If left destitute after divorce, the divorced women, under Islamic dispensation are entitled as of the right to claim maintenance from their opulent prescribed relations. If not so available, the state is bound to maintain them.
Those who do not find solution to the problems of women after divorce within Shariat may usefully explore a compulsory realization of Zakat by the state and will soon find that there will a dearth of recipients of Zakat.
Thus, echoing with the learned judges we can also seek a change of attitude towards women by implementing the true Islamic law to provide Zakat to these destitute women and make them economically solvent and empowered. Moreover, demands for state intervention may propose the state advancing payments to the claimants and then seeking to recover them from the man (for example through deductions from his salary if he is a public employee). Iraq's revolutionary Command Council established a 'temporary maintenance fund' of this type from the general budget in 1980; Egypt's 2000 legislation instituted a system based on payments from the Nasser Social Bank, but serious problems arose in the early years of its implementation, and it was not until late 2004 that further legislation provided the resources needed to advance maintenance payments; in Palestine, a law establishing a 'maintenance fund' that had been the target of advocacy efforts by women's groups was approved before the legislature turned its attention to the substantive text of family law. So it is an urgent need to implement maintenance rulings with a view of giving redress to the poor destitute divorced women."
Reference may be made to the case reported as Mohd. Ahmed Khan vs. Shah Bano Begum and others [AIR 1985 SC 945] has held as under:-- "14. These statements in the text books are inadequate to establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself.
One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent, both in quantum and in duration, of the husband's liability to provide for the maintenance of an indigent wife who has been divorced by him. ................................................. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Since the Muslim Personal Law, which limits the husband's liability to provide for the maintenance of the divorced wife to the period of iddat, does not contemplate or countenance the situation envisaged by section 125, it would be wrong to hold that the Muslim husband, according to his personal law, is not under an obligation to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself. The argument of the appellant that, according to the Muslim Personal Law, his liability to provide for the maintenance of his divorced wife is limited to the period of iddat, despite the fact that she is unable to maintain herself, has therefore to be rejected. The true position is that, if the divorced wife is able to maintain herself, the husband's liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the Code. The outcome of this discussion is that there is no conflict between the provisions of section 125 and those of the Muslim personal Law on the question of the Muslim husband's obligation to provide maintenance for a divorced wife who is unable to maintain herself.
15. There can be no greater authority on this question than the Holy Quran, "The Quran, the Sacred Book of Islam, comprises in its 114 Suras or chapters, the total of revelations believed to have been communicated to Prophet Muhammad, as a final expression of God's will". (The Quran --Interpreted by Arthur J. Arberry). Verses (Aiyats) 241 and 242 of the Quran show that there is an obligation on Muslim husbands to provide for their divorced wives xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Supreme Court of Pakistan in a case reported as Muhammad Najeeb vs. Mst. Talath Shahnaz and others [1989 SCMR 119] has observed as under:-- "Nevertheless, we heard both the learned counsel on technical questions also raised by them. In the first petition the argument of learned counsel that section 9 of the Family Laws Ordinance speaks of '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.
In another case reported as Muhammad Zairaf vs. Mst. Safia Bibi and 3 others [2000 MLD Lahore 1900] wherein it has been held as under:-- "11. .........These facts clearly establish that the petitioner had divorced respondent No. 1 prior to the institution of the maintenance suit and as the 'Talaq' had never been withdrawn by the petitioner, therefore, the same became effective on the expiry of period of 'Iddat' and the sending of notice of 'Talaq' back to the petitioner in Saudi Arabia by the Union Council, Ghora Gali is inconsequential because the same cannot amount to withdrawal of the 'Talaq' by the petitioner and the arguments of the learned counsel for the respondents in this regard have no force. The findings of the Family Court in this regard are upheld and the writ petition is partly accepted and it is held that respondent No.1, Mst. Safia Bibi, is entitled to maintenance allowance for the period of 'Iddat' of three months only, at the rate of Rs. 1,500 per month, as fixed by the Appellate Court and the maintenance allowance granted to respondent No.2, the minor child by the Appellate Court, at the rate of Rs.
1,500, per month, from 1st of September, 1997 till he attains the age of majority is upheld and maintained..."
In the case reported as Mansoor Tariq Khan vs. Mst. Nafeesa and 2 others [1999 CLC Karachi 305], it has been held as under:-- "I have heard the arguments of the learned Advocates of the parties and carefully perused the record and have come to the conclusion that keeping in view the principles of Muhammadan Law a father is bound to maintain his minor children till such time that either they attain the age of majority in the case of male children and till the time marriage of female children is solemnized and also that the maintenance during Iddat of divorced wife is to be paid by the ex-husband....."
Thus, on the basis of referred to hereinabove, it is lucidly clear that under a valid marriage, maintenance is the lawful right of the women. This right is derived from the authority of Qur'an, from the Prophet's traditions and from consensus. Islam regards marriage only a civil contract between the spouses, however, in terms of obligations, the wife acquires the right of maintenance from husband, both during the subsistence of marriage and period of Iddat. In the modern era, several steps are being taken by the legislature for the protection of the rights of women, but as is evident from the discussion made hereinbefore, that the Islam recognized the rights of the women, where there was no concept of even a right of a women, thus, on the basis of the above discussion, we conclude that the Shariat Court was not justified to hold that the plaintiff (wife) was not entitled to get the maintenance from desertion, till the expiry of the period of 'Iddat'. The case law referred to by the learned counsel for the appellants has no nexus with the case in hand, therefore, we are not inclined to discuss the same.
10. Now we advert to the argument advanced by the counsel for the appellants that the appeal was filed before the Shariat Court against the decree for grant of maintenance charges in favour of the appellant, Safina Chaudhary but the Shariat Court granted the relief to one Mst. Parveen Bibi. The perusal of the impugned judgment shows that in the concluding paragraph, the Court held that "in view of the above, by partly accepting appeal No. 30 of 2016, the judgments and decrees under challenge stands modified....." however, in the later part, the name, Parveen Bibi instead of Safina Chaudhary has been incorporated. We have perused file No. 30 of 2016. In the heading of the appeal, the name of Safina Chaudhary, appellant, herein, daughter of Muhammad Khan is entered as respondent No.1 and the Court while partly accepting the appeal has clearly mentioned the appeal No. as 30 of 2016, thus, the mentioning of the name of Parveen Bibi is only a typographical mistake occurred due to inadvertence being an human error and instead the name of Safina Chaudarhy, the name of Parveen Bibi has been mentioned, thus, the typing error occurred cannot make a judgment invalid. Thus, the stance of the learned counsel for the appellant for vacation of the impugned judgment is not helpful to him.
However, in the impugned judgment as well the decree dated 25.3.2017 of the Hon'ble Court The name "Parveen Bibi" shall be treated, written and read as Safina Chaudhary."
In view of the above discussion, the quantum of maintenance per month awarded by the trial Court to the plaintiff-appellants and concurred by the Shariat Court is upheld, however, while partly accepting the appeal, the judgment and decree of the Shariat Court is modified that the plaintiff (wife) Mst. Safina Chaudhary is entitled to get the maintenance from the date of desertion i.e. July, 2013 till the expiry of the period of 'Iddat'.
The appeal stands disposed of in the manner indicated above. No order to costs.