This petition under Article 201 of the Interim Constitution of the Islamic Republic, of Pakistan (now Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973) has been filed to seek a declaration that the order of the Chairman of the Union Committee assessing the arrears of maintenance as payable to respondent No. 2 by the petitioner and the order of the Collector dated 27-3-1973 upholding that order, are without lawful authority and that the order of the Union Committee dated 21-11-65 .Awarding maintenance to respondent No. 2 stands vacated by cohabitation ,by the petitioner and the said respondent.
2. The petitioner and respondent No. 2 are husband and wife. On an application made by respondent No. 2 to the Chairman, Union Committee, Sant Nagar Lahore, on 16-10-1965 for grant of maintenance, an order was passed in her favour by the Arbitration Council on 21-11-1965 holding her entitled to receive Rs. 200 p. m. As Maintenance and Rs. 100 p. m. On account of insurance policy. This order was passed on the basis of a compromise between the spouses. On 2-11-68 Mst.
Khurshid Begum res--pondent submitted an application to the Chairman of the Union Committee complaining that only a sum of Rs. 400 was paid to her by the petitioner ;and requested for recovery of the arrears to be made from him. The Chairman, after calculation of the amount due, issued a recovery certificate for a sum of Rs. 10,100 for the period from 21-11-1965 to 21-10-1968.
3. The petitioner submitted an application to the Collector on 6-1-1969 against this order. The learned Collector provisionally stayed the recovery but subsequently on the application of respondent No. 2 vacated this stay order on the ground that the application was not maintainable under the law. The application was withdrawn by the petitioner on 17-2-1969. T hereafter he filed Writ Petition No. 126 of 1969 which was allowed on 23-11-1972 and the Collector was directed to give a decision after hearing the parties.
4. The case of the petitioner before the Collector was that after the order of the Arbitration Council, the husband and wife had started living together and this rendered the decision of the Arbitration Council a nullity. The learned Collector did not agree with this contention. He held that the petitioner had not been able to give any proof to the effect that he had been maintaining respondent No. 2 adequate during the period in question. Respondent No. 2 had urged before the Collector that the birth of children during the period in disputewas the result of occasional visits of the husband to her house where she was forced to perform matrimonial obligations. The learned Collector appears to have held otherwise as he observed that "the fact that the respondent agreed to stay with the petitioner for years and also performed all matrimonial obligations is a proof to the fact that she was genuinely interested in being maintained by the husband as a wife." He also found that the order of payment of maintenance passed on 21-11-1965 was still operative as it had not been set aside by any competent authority.
The Collector has found it as a fact that there was no evidence before him that during the period in dispute the petitioner had been maintaining the wife adequately. This finding has not been challenged. Under the Order of 1965 the petitioner was liable to pay Rs. 100 towards insurance but there is no averment that this was ever paid by the petitioner to the respondent or the Insurance Company. For this reason the above orders are amply justified.
5. The learned counsel argued on the anology of certain decisions given on the interpretation of section 488 of the Code of Criminal Procedure that the order of the Arbitration Council became a nullity on the date when by compromise the parties started living together. He relied upon Munswami Pillal v. Doraikannu Animal (AIR 1946 Mad. 222and Kuppuswami Paduyachi v.
Jagadambal (AIR 1947 Mad. 423).
Alternatively the learned counsel argued that during the time that the parties had been living together the said order stood suspended.
6. The relevant case-law under section 488, Cr. P. C. Has been summed up in a case decided by the West Pakistan High Court in Muhammad Hussain v. Msi. Shakira Begum (PLD 1963 Kar. 122). The Madras view is that where the wife comes and lives with the husband even for a few days, she cannot be allowed to rely on the original order of maintenance passed under section 488, Cr. P. C.
Or to execute that order against her husband. If she separates again from her husband, she must file another petition on a fresh cause of action. Vankayya v. Raghavamma (AIR 1942 Mad. 1), Munuswami Pillai v. Dorakikannue Ammal (AIR 1947 Mad. 222), Kuppuswami Padayachi v.
Jagadambal (AIR 1947 Mad. 423), S. Natesa pillai v. Jayammal (AIR 1960 Mad. 515). Similar view had been taken by the Rangoon High Court in Ellen Ma Noo v. Villam Po Thit (AIR 1931 Rang. 89).
The High Courts of Bombay, Calcutta, Allahabad, Nagpur, Orissa, East Panjab have adopted a contrary view that re-union and cahabitation between parties does not put an end to an earlier maintenance order. Parul Bala Debi v. Statis Chandra Bhattacharjee (AIR 1923 Cal. 456), Laxman Gajiu v. Sitabal Laxman (AIR 1958 Born. 14), Pearay Lal v. Mst. Naraini (AIR 1935 All. 977), John P. E.
Coelho v. Mrs. Blache Coelho (AIR 1936 Nag. 228), Casinath Panda v. Padambati Debi AIR 1956 Orissa 199), Mukand Singh v. Mst. Kartar Kaur (AIR 1958 Ph. 422) and Mst. Zauhra Bi v. Muhammad Yusuj (AIR 1930 Lab. 1043). The consistent view of these High Courts, however, is that during the period of re-union the order may remain suspended but otherwise it remains in force till it is cancelled on the ground set out in section 488 (5), Cr. P. C. This was also the earlier Madras view in Kanagammal v. Pandra Nadar (AIR 1927 Mad. 376). In Muhammad Hussain v. Mst. Shakira Begum.
The West Pakistan High Court adopted the view of the majority of the High Courts in the sub- continent.
7. Theview of the Lahore High Court has consistently been that a order under section 488, Cr. P. C does not come to an end by re-union of the parties or even by a subsequent compromise. In Fazal Din v. Mst Fatima (AIR 1932 Lah. 115it was held that a subsequent compromise between the parties could have no effect on the order of payment of maintenance.
If this had been a case under section 488, Cr. P. C., I would have no hesitation in following the view of the majority of the High Courts. In this circumstance, I would have found no difficulty in answering the question by holding that during the period of re-union the order of payment of maintenance remains suspended but it is revived after the separation of the parties.
8. All these cases under section 488, Cr. P. C. Whether nullifying the order of maintenance or suspending it can somehow be justified on the language of that section. Section 488, Cr. P. C.
Provides that if ally person having sufficient means neglects or refuses to maintain his wife, a Magistrate inter alia may on proof of such neglect or refusal order such person to make a monthly allowance for the maintenance of his wife which shall not exceed a sum of Rs. 400. Subsection (3) of this section provides that if any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and sentence such person, for the whole or any part on each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.
Proviso (1) to subsection (3) is to the effect that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her and may make an order under this section notwithstanding such offer. Proviso (2) deals with the period of Limitation for application for issuance of a warrant for recovery.
Subsection (4) provides that no wife, refusing to live with the husband without any sufficient cause or living in adultery, is entitled to receive any allowance. Under subsection (5) the Magistrate has been empowered to cancel the order if it is proved that the wife had been living in adultery or had refused to live with the husband without sufficient reasons. The wife is, therefore, entitled to maintenance only if she is not living with the husband and refuses to live with him for sufficient reasons. It can, therefore, be urged with force that if she ever starts living with the husband, the order for payment will at least remain in a state of suspension as during that period the wife would not be entitled to any maintenance under section 488, Cr. P. C.
9. The provisions of section 9 of the Muslim Family Laws Ordinance are, however, different. Under this sectionwife is entitled to maintenance, not only when she is not living with the husband but whenever it is proved that the husband fails to maintain her adequately or where there are more wives than one, fails to maintain the wife seekingmaintenance, equitably.
The recovery is also not subject to the condition of failure to comply with the order of payment of maintenance without sufficient cause as has been seen in subsection (3) of section 488, Cr. P. C.
Subsection (3) of section 9 of the Family Laws Ordinance provides that any amount payable under subsection (1) of section 2 if not paid in due time, shall be recover--able as arrears of land revenue.
The authorities relied upon by the learned counsel for the petitioner or the other authorities about suspension of the order during the period of re-union between the spouses are not, therefore -- applicable to a case falling under section 9 of the Family Laws Ordinance. According to this section complete neglect or failure on the part of the husband to maintain the wife is not necessary to be established to attract the provision of this section. Even if it is proved that the wife is being maintained by the husband but the Arbitration Council comes to the conclusion that there is failure to maintain a single wife adequately or in case there is a plurality of wives one of the wives equitably, although the husband and wife are living together, the order of payment of maintenance can be passed. The mere re-union, therefore, does not make any difference. The provision about recovery is couched in mandatory form. If it is once proved that the amount payable has not been paid it shall be recovered as arrears of land revenue. This leaves no doubt that the order of payment of maintenance is neither terminated nor suspended by any act of parties for so long as they remain husband and wife. I am of the view that the order of the Arbitration Council issuing the certificate of recovery and the order of Collector have not been passed without any lawful authority.
10. The learned counsel for the petitioner lastly argued that the Chairman of the Union Committee had not given any show-cause notice before issuing this recovery certificate. This argument is not tenable in view of the decision in the earlier writ petition. This is a matter which could have been urged in that writ petition and it is for this reason that a form's was provided to the petitioner to show cause against the order of recovery.
I find no merit in this petition which is dismissed with costs.