1. ' This is a Constitutional Petition filed by. The petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The facts giving rise to the above petition, briefly stated, are that respondent No,1 was married to the petitioner on 15-5-1981: The parties lived happily as husband and wife for some time but thereafter some differences arose between them. The respondent No,1 then left the house of the petitioner on or about 21-7-1981 and is alleged to have come to Sukkur and reside with her brother.
2. After waiting for return of the respondent, the petitioner contracted another marriage on 27-9-1982.
3. Respondent filed a suit for maintenance on 30-8-1986 being family suit No,5 of 1986 in the Court of learned Family Judge, Sukkur. The petitioner filed written statement and contested the suit. The following issues were framed:- "Issue No,l. Whether the plaintiff is entitled for the maintenance? If so to what extent?
4. ' Issue No,2. Whether the suit is not maintainable according to law?
5. ' Issue No,3. Whether the plaintiff is not ordinarily residing at Sukkur and this Court has no jurisdiction in the matter?
6. ' Issue No,4.What should the decree be?"
2. Attorney of respondent No,1 and one witness were examined by the Family Court on behalf of respondent. The Family Judge decreed the suit in the sum of Rs,15,100 by his judgment dated 30-6- 1987. The petitioner filed an appeal against the said judgment before the learned District Judge, Sukkur which was dismissed by his order dated 12-10-1987. Thereafter, the petitioner filed a revision application in the High Court which came up before another Bench of this Court and was dismissed as withdrawn on 6-3-1988, as the same was not maintainable. The petitioner has now filed this Constitutional Petition on 15-3-1988 seeking the following reliefs:- "(a) To declare that the judgments and decrees passed by the learned Joint/Family Judge, Sukkur, and District Judge Sukkur, allowing suit for maintenance of the respondent No,1, are illegal, void, ab initio against Mohammadan Law and law in force, hence the same cannot be enforced upon the petitioner.
(b) To pass any other order, by way of writ, rules and orders as this Hon'ble Court deems fit and proper in the interest of justice in view of the facts and circumstances of the case."
4. Mr. Ghulam Muhammad Khan Durrani, learned counsel for the petitioner has raised the following contentions:--
(1) That the learned Family Judge did not act judiciously in refusing adjournment to the petitioner and thus passed a decree without affording an opportunity.
(2) The learned Famil) Judge has no territorial jurisdiction to entertain the suit.
(3) No pre-trial or post-trial procedings took place in the suit.
7. (4). Respondent No,1 had deserted the petitioner without any reasonable cause. So, under the law she is not entitled to any maintenance.
(5) In any case, she is not entitled to past maintenance.
5. As regards the first contention, it may be stated that the suit was filed on 30-8-1986 and after filing of the written statement and framing of issues, the matter was set down for evidence of the parties. After recording evidence produced on behalf of respondent, her side was closed on 4-6- 1987 and the matter was adjourned to 11-6-1987 for petitioner's evidence. On a request made on his behalf by the counsel it was adjourned to 21-6-1987. Again on a 'similar request it was adjourned to 24-6-1987 but on none of these dates the petitioner appeared before the Court to give evidence nor any witness was summoned or produced by him, in spite of repeated adjournments sought by him. The learned Family. Judge had no alternative but to close his side on 24-6-1987 and, after hearing the arguments of the learned counsel for the parties pronounced judgment in the suit on 30-6-1987. In the circumstances, there is no illegality or arbitrariness in refusing further adjournment to the petitioner on 24-6-1987.
8. ' As regards second contention, learned counsel submits that the Family Court at Rahimyar Khan only had the jurisdiction to entertain the suit as the respondent was living at Rahimyar Khan before the institution of the suit. He has, however, failed to produce any evidence before the learned Family Judge to that effect. On the other hand, the respondent No,1 has produced a certificate from the concerned Union Council of Sukkur in support of her plea that she has been residing in Sukkur for a number of years. The statements of P.Ws. 1 and 2 also go to support the fact that respondent has been residing at Sukkur with her brother for a pretty long time. The circumstances B show, as observed by both the Courts below, that respondent after dispute with the petitioner came from Rahimyar Khan to Sukkur and resided there with her brother. As observed by me in Bibi Anwar v .
9. Gulab Shah (PLD 1988 Kar.602) the provisions of rule is of the West Pakistan Family Courts Rules, 1965 framed under section 3 of the Family Courts Act, would be attracted to the respondent and she having proved to be ordinarily residing at Sukkur respondent's suit for maintenance filed in the Court of Joint Civil Judge and Judge, Family Court Sukkur was competent in law and the Court of Joint Civil Judge, Sukkur had the jurisdiction, as rightly held by the learned Family Judge and the District Judge. Sukkur.
10. ' As regards the contention that on account of omission on the part. Of the Family Judge to hold pre-trial and post-trial proceedings the judgment is illegal, learned counsel for the petitioner has failed to file copy of the diary of the learned Family Judge. However, the contention appears to be misconceived inasmuch as that the petitioner in the memo of appeal after stating the issues, it has been specifically stated that "Thereafter pre-trial reconciliation proceedings were conducted but it failed", In so far as post-trial proceedings are concerned, no such plea was taken in the lower courts. However, in the absence of the diary it cannot be said whether post-trial proceedings took place or not. Since this fact, one way or the other is hot established before me, I need not further go into the discussion as to the legal effect on the judgment for not holding post-trial conciliation proceedings by the learned Family Judge.
11. ' The fourth contention that the respondent No,1 deserted the petitioner without ahy reasonable cause is a pure question of fact which cannot be inquired into by this Court in its Constitutional jurisdiction. However, suffice it to say that the learned Family Judge and the District Judge have dealt with this aspect and the finding of both the Courts is against the petitioner.
12. ' As regards the last contention about the disentitlement of respondent to maintenance, learned counsel for the petitioner submits that, firstly, the respondent is not entitled to past maintenance and, secondly, that she is not entitled to maintenance after December, 1986 as the petitioner having divorced the respondent sent a notice of divorce to the Chairman, Union Council, Allahabad, District Rahimyar Khan as provided under section 7 of the Family Laws Ordinance, 1961.
13. The said divorce as submitted by the counsel, was confirmed by the said Chairman.
14. ' Mr. Amanullah Shaikh, learned counsel for the respondent denies the petitioner having divorced the respondent or receiving any communication by her in this respect from him or the Union Council, as alleged. Since there is no issue on this aspect of the matter I am not going to allow the learned counsel for the petitioner to agitate this question of fact whether the respondent stood divorced in September 1986 so as to disentitle her to claim maintenance for a period from January, 1987 onwards (till August 1987), as awarded by the learned Family Judge and upheld by the learned District Judge in appeal. The judgment in Mushtaque Ahmed v. Collector/Deputy Commissioner, Lahore (1986 CLC 2312), cited by the counsel for the petitioner, holding that the Arbitration Council had no power to award maintenance to wife after divorce had become effective is of no relevance to the facts in the instant case.
15. ' Now as regards the question of past maintenance, a survey of the Pakistan case-law reveals that the first leading case in Pakistan allowing past maintenance to the wife, without an agreement between the parties or decision of a Court of law, was that of a D.B. Of the erstwhile High Court of West Pakistan, Lahore, comprising of Mr. Justice Anwarul Hall (later, Chief Justice of Supreme Court) and Muhammad Afzal Cheema, J (later, Judge of the Supreme Court) held that the wife can justly claim maintenance from the date of accrual of the cause of action and not necessarily from the date of her first seeking redress i.e, the date of application or filing suit therefor. The learned Judges observed: "The mere fact that a neglected wife has been hesitant in promptly coming to the Court or has been pursuing alternative 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 jurisdiction to grant such maintenance subject of course to consideration of limitation and the relevant circumstances of each case (PLD 1966 W.P. Lahore 703)."
16. ' The above decision was approved by the Hon'ble Supreme Court in a subsequent case on the subject.
17. ' Learned counsel for the petitioner has placed reliance on Muhammad Nawaz v. Khurshid Begum (PLD 1972 SC 302) wherein it has been observed by the Hon'ble Supreme Court that "On the language of section 9 of the Muslim Family Laws Ordinance, 1961, there is no prohibition for granting past maintenance." It was further observed by the Hon'ble Supreme Court that: "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."
18. ' On the other hand, Mr. Amanullah Shaikh learned counsel for the respondent placed his reliance on a Division Bench judgment of this Court in Abdul Karim v. Irshadunnisa Begum (PLD 1977 Kar.
19. 477) wherein it was observed that "no exception can be taken to the decree passed by both the lower Courts granting past maintenance to the wife for a period of three years prior to the date of suit." The learned Bench, however, has not quoted any Article of Limitation Act, 1908 or the law in support of the proposition that the wife could only claim past maintenance for a period of three years prior to the date of the suit. In the authority relied upon by the learned counsel for the petitioner the Hon'ble Supreme Court seems to have concurred with the view of the Lahore High Court that Article 120 of the Limitation Act was attracted to a claim of the wife for past maintenance. The suit was filed on 30-8-1986 and the maintenance has been granted by the two Courts below for a period from 21-7-1981 to 17-8-1987 at Rs,200 per month for a total amount of Rs,15,100 inclusive of delivery charges amounting to Rs,2,000 of a baby born to her out of the wedlock at Sukkur. The said expenses were borne by the respondent who has also rightly claimed such expenses. However, it is to be noticed that the respondent has claimed her maintenance on the basis of an agreement as stated by her in para 7 of the plaint, which fact has not been specifically denied by the petitioner in his written statement.
20. ' For the aforesaid reasons there is no force in the petition which is dismissed with costs.