AHMED NADEEM ARSHAD, J. Through this Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has challenged the vires of orders dated 26.08.2013 and 01.11.2016 passed by the Administrator , Union Council Chakori Sher Ghazi, Tehsil Kharian, District Gujrat and the District Collector , Gujrat.
2. Facts in brief are that the petitione r sent notice of Talaq to respondent No.1, Shumiala Bibi, through Administrator , UC Chakori Sher Ghazi, Kharian (respondent No.2) who summoned the parties for reconcil iation proceedings and upon failure of said proceedings between the parties, respondent No.2 in exercise of power conferred under Section 9(1) & (2) of the Muslim Family Law Ordinance, 1961 issue d divorce certificate pursuant to order dated 26.08.2013. In the said order , respondent No.1 was also held entitled to recover maintenance allowance @ Rs.5000/- per month till the period of her Iddat alongwith arrears of the last three years total amounting to Rs.1,80,000/-. After lapse of more than two and half years, on 07.06.2016, the petitioner filed revision petition before District Collector (respondent No.3) praying for reversal of order , dated 26.08 .2013, who dismissed the same on the point of maintainability vide impugned order dated 01.11.2016. Feeling aggrieved by that order petitioner has filed the instant writ petition.
3. Learned counsel for the petitioner argues that earlier claim of respondent No.1 for grant of maintenance allowance was dismissed by the learned Judge, Family Court, Kharian, hence subs equent proceedings for the self- same relief were not maintainable; that since respondent No.1 never challenged judgment passed by the learned Judge Family Court, the same has attained finality; that under the law respondent No.2 had no authority to grant maintenance allowance to respondent No.1 and that the impugned orders, being result of misuse/non-exercise of jurisdiction, are liable to be set aside.
4. Conversely , learned counsel for respo ndent No.1 repelled the contentions raised by learned counsel for the petitioner by submitting that order passed by respondent No.2 was much prior to the institution of suit hence it had no concern with the judgment/decree passed by the learned Family Court. While referring Section 9(2) of the Muslim Family Ordinance, 1961, learned counsel argued that respondent No.2 was fully competent to pass order dated 26.08.2013 whereby respondent No.1 was held entitled for the grant of maintenance allowance and that the District Collector has rightly dismissed the revision petition of the petitioner being barred by time.
5. I have heard learned counsel for the parties at length and perused the record with their able assistance.
6. Undeniably , petitioner pronounced Talaq through written divorce deed dated 12.05.2013 and sent it through registered envelop to the respondent No.2, where the proceedings with regard to notice of Talaq were initiated and notices were issued to the parties. Record reveals that on 26.06.2013 both the parties were not in attendance, therefore, reconciliation proceedings were declared failed. On 04.07.2013, Sana Ullah, real son of the petitioner , probably from his other wife, appeared before respondent No.2. He submitted written application for adjournment on the ground that petitioner had gone abroad with the assurance that he (the petitioner) would be informed telephonically to join the proceedings on the next date of hearing. Respondent No.1 was present there who confirmed the notice of Talaq. On 25.07.2013, no one attended the proceedings on behalf of the petitioner , however , on his behalf written reply was submitted. On the same date, statement of respondent No.1 was recorded. She stated that she was deserted approximately 7/8 years ago and her husband did not pay her any maintenance allowance during that period and claimed that petitioner having been employed abroad (Kuwait) he had been earning Rs.1,50,000/- to Rs.2,00,000/- per month and in this way he could afford her maintenance allowance @ Rs.25000/- per month along with arrears for the last 7/8 years. After recording statement, respondent No.2 fixed the case for final hearing on 26.08.2013 on which date 'Certificate of Talaq' was issued and at the same time maintenance allowance of respondent No.1 was fixed @ Rs.5000/- per month with arrears for the last three years totalling Rs.1,80,000/-. Petitioner did not challenge that order rather remained mum and then after a pretty long time (almost more than 21/2 Years) on 07.06.2016 for the first time moved revision petition before respondent No.3 who dismissed the same being hopelessly barred by time vide impugne d order dated 01.11.2016. No explanation for such belated filing of revision petition was given by the petitioner thus no illegality was committed by the revisional forum while dismissing his revision petition. The apex court of the country in the case of Dr. Muhammad Javaid Shafi V. Syed Rash id Arshad and others (PLD 2015 SC 212) while dealing with the fate of proceedings having been filed beyond the prescribed period of limitation has inter alia held as under:- "From the various dicta/pronouncements of the superior court, it can be deduced without any fear of contradiction that [the law of limitation] is founded upon public policy and State interest. This law is vital for an orderly and organized society and the people at large, who believe in being governed by systemized law. The obvious object of the law is that if no time constraints and limits are prescribed for pursuing a cause of action and for seeking reliefs/remedies relating to such cause of action and a person is allowed to sue for the redressal of his grievance within an infinite and unlimited time period, it shall adversely affect the disciplined and structured judicial process and mechanism of the State, which is sine qua non for any State to perform its functions within the parameters of the Constitution and the rule of law... The law of limitation requires that a person must approach the Court and take recourse to legal remedies with due diligence, without dilatoriness and negligence and within the time provided by the law; as against choosing his own time for the purpose of bringing forth a legal action at his own whim and desire."
If the fate of the order passed by the Chairman Arbitration Council is adjudged on the touchstone of the afore- referred judgment of the Hon'ble Supreme Court there leaves no ambiguity that the same having not been challenged within the prescribed period was immune for interference by any higher forum.
7. During arguments learned counsel laid much emphasis on the fact that respondent No.2 had no power and competence to fix maintenance for respondent No.1 because the aforesaid relief was declined by the Family Court, Kharian vide judgment/decree dated 19.03.2015, hence she was estopped from claiming the maintenance allowance as she abandoned her claim by not challenging the decision of the Family Court. Section 9 (1) of the Muslim Family Laws Ordinance, 1961 (hereinafter referred to as Ordinance, 1961) gives a right to wife to move for grant of maintenance future as well as past which for convenience of reference is reproduced herein below:- "9. Maintenance--(1) If any husband fails to maintain his 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 Arbitration 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 to the Collector concerned and his decision shall be final and shall not be called in question in any Court.
(3) Any amount payable under sub-sectio n (1) or (2) if not paid in due time shall be recoverable as arrears of land revenue."
After the promulgation of the Ordinance, 1961, West Pakistan Family Courts Act, 1964 (hereinafter referred to as the Act, 1964) was enacted which shows that without any ambiguity the Muslim Family Laws Ordinance, 1961, an earlier statute, was not only kept intact but it was given an overriding effect on any other statute on the subject. In this regard, section 5 and section 21 of the West Pakistan Family Courts Act, 1964 are relevant which are reproduced hereunder:- SECTION-5 Jurisdiction.- [1] Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Cour ts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in [Part I of the Schedule].
[(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), the Family Court shall have jurisdiction to try the offences specified in Part II of the Schedule, where one of the spouses is victim of an offence committed by the other .] [(3) The Government may amend the Schedule through addition, deletion or substitution of any entry in the Schedule.] SECTION-21.
Provisions of Muslim Family Laws Ordinance, 1961 not affected.- Nothing in this Act shall be deemed to affect any of the provisions of Muslims Family Laws Ordinance, 1961, or the rules made thereunder .] On a conjunctive reading of the aforementioned provisions it also clearly emerges that there was no impediment in the way of respondent No.1 in making an application u/s 9(1) of the Ordinance, 1961, as she could make such an application/prayer for allowing maintenance to her besides any other legal remedy available to her for the purpose.
In this way, the right of respondent No.1 invoke provisions of section 9 of the Muslim Family Laws Ordinance, 1961 could not be taken away on any pretext including filing of proceedings before any other forum.
8. A perusal of record it appears that respondent No.1 claimed her maintenance by filing application under section 9 ibid on 25.07.2013 whereas she filed suit before the Family Court claiming maintenance for her as well as for her child on 31.07.2013. Further , respondent No.1 was granted maintenance vide impugned order dated 26.08.2013 where suit for maintenance to her extent was dismissed on 19.03.2015, hence she was not obliged to challenge the validity of judgment & decree of the learned Family Court.
9. This court is cognizant of the fact that when a party has more than one forum for redressal of its grievance and if it opts for one of them then it cannot be allowed to switch over to the rest of the remedies. Insofar as the case in hand is concerned, if proceedings before two forms were not maintainable the suit before the Family Court, being latter in time, could be attacked on the said point but by no stretch of imagination order dated 26.08.2013 could be declared illegal mere dismissal of suit by the learned Judge Family Court on 19.03.2015.
10. Another point raised by the learned counsel for the petitioner that Arbitration Council was not empowered to grant past maintenance allowance to respondent No.1. In this regard I am of the view that Section 9(1) of the Ordinance, 1961, postulates that Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband. From the word 'maintenance' it cannot be gathered that it relates to past or future rather in wide sense it covers all kinds of maintenance payable to the the wife either during subsistence of her marriage or for Iddat period, as the case may be. Therefore, in no way Section 9(1) curtailed the power of Arbitration Council to grant past maintenance to the wife. The husband' s obligation to maintain his wife commences simultaneously with the creation of marital bond and being in obligation and not an ex gratia grant it is enforceable even with respect to the past period of marital life, although, the same was not claimed during that period by the wife, subject to consideration of limitation and circumstances of the case itself. In this scenario, the contention raised by learned counsel for the petitioner is misconceived hence repelled.
12. So far as the point that Chairman cannot assume himself to be Arbitration Council is concerned, suffice it to note that Rule 5 of the West Pakistan Family Court Rules framed under the Muslim Family Laws Ordinance, 1961, provides answer to this query . Sub-clause (6) of the Rule under reference envisages that all decisions of the Arbitration Council shall be taken by majority and where no decision can be so taken the decision of the Chairman shall be the decision of the Arbitration Council. Same was done in the case in hand.
13. Similarly sub-clause (2) of Section 9 of the Ordinance, 1961, further clarified that a husband or wife may in the prescribed manner within the prescribed period and on payment of prescribed fee prefer an application for revision of the certificate before the Collector concerned and his decision shall be final and shall not be called in question in any Court. The words 'within the prescribed period' means not beyond the period stipulated under the Rules. In this regard clarification is made under sub-sec tion (1) of Section 16 of the West Pakistan Rules made under the Muslim Family Laws Ordinance, 1961. For facility of reference it is hereby reproduced as under:- "16 (1) Revision- --An application for the revision of a decision of an Arbitration Council, under sub-section (4) of Section 6 or of a certificate under sub-section (2) of Section 9, shall be preferred within thirty days of the decision or of the issue of the certificate, as the case may be, and shall be accompanied by a fee of two rupees.
(2) the application shall be in writing set out the grounds on which the applicant seeks to have the decision or the certificate revised and shall bear the signature of the applicant."
From the above provision of law it is crystal clear that petitioner had to file revision before the Collector/respondent No.3 within 30-days from the issuance of order of respondent No.2 but he failed to do so. From perusal of record it reveals that petitioner filed revision on 07.06.2016 against order of respondent No.2 after passing of more than two and half years and that too without furnishing any lawful reason except bald assert ion that he was abroad (Kuwait) and as soon as he came to know about these proceedings he filed the revision before the Collector . The learned District Collector , Gujrat/respondent No.3 while dismissing the revision of petitioner gave sound and logical reasons that revision filed by the petitioner was hopelessly barred by time and under the Statute impugned order passed by respondent No.3 was not challengeable before any Court. Furthermore, when the statute itself prescribed the period for availing remedy before the higher forum the provisions of Limitation Act, 1908 would not be applicable.
14. As a necessary corollary to the above discussion, I do not find any merit in this writ petition which is hereby dismissed . No order as to costs.