RAZA AHMAD KHAN, J.---Bibi Musarrat has invoked the constitutional jurisdiction of this Court to examine the propriety of the impugned judgment of the learned District Judge, Mansehra whereby he disentitled Mst. Bibi Mussarat, the petitioner herein, for the past maintenance.
2. The circumstances giving rise to this writ petition are that the petitioner, as per her plaint, was married to Sarfaraz, the respondent herein, in the year 1974. She bore him 4 children. But during this while, according to the plaint, the respondent maltreated her and ousted her whereupon she came to her parent's house and stayed there for about 3 years. Eventually the parents of the petitioner sent her with the respondent who took her to Lahore where again she gave birth to a twin. During the delivery, however, she got sick and ultimately developed Tuberculosis. It is alleged that thereafter the respondent brought her to her parent's house in February, 1985 in the same sick condition and, leaving her behind, himself left for Lahore. It is averred in the plaint that since then while she has been under the treatment of Dr. Qazi Mohib-ur-Rchman, and the expenses whereof has been borne by her parents, the respondent did not send any amount for her treatment what to speak of her maintenance. Consequently she instituted a suit for the recovery of her maintenance at the rate of Rs.800 per month from the date of her arrival in her parent's house till the grant of decree of her suit.
3.The respondent contested the suit and finding the parties at variance the learned Judge Family Court, Mansehra framed the following issues:- (1)Whether the plaintiff has got a cause of action?
(2)Whether the plaintiff is estoppcd by her own conduct to file the present suit?
(3)Whether the dower amount of RS.2,(X)O has been paid to the plaintiff in shape of landed `property?
(4)Whether the attitude of defendant towards plaintiff remained very cruel and he always used to beat her, if so, its effect?
(5)Whether the defendant has left the plaintiff in the house of her parents when she was ill and has also snatched ornaments, if so its effect?
(6)Whether the plaintiff is entitled to the decree for recovery of Rs. 22,400 as past maintenance for 28 months from March, 1985 to July 1987 as prayed for in relief `A'? '
(7)Whether the plaintiff is entitled to the decree for recovery of Rs.800 as future maintenance as prayed for in relief `B'?
(8)Relief.
4.After recording such evidence as was adduced by the parties in support of their respective pleadings, the learned Judge Family court, while deciding issue No.1 as to whether the plaintiff has got a cause of action, arrived at a finding that the petitioner had not left the house of the respondent on her own accord but in fact she was brought by the respondent and left in her parent's house and as such since petitioner's desertion was not self-imposed, she has a cause of action to ask for the maintenance from the respondent. In the were of the same finding he also held that the petitioner though entitled to past maintenance but it could not be indefinite in view of the fact that the respondent has divorced her on 16-7--1987 and accordingly her claim for maintenance can be entertained only from the date of her forced desertion upto the period of 'Idat' i.e. Upto th6 month of October, 1987. The learned Family Judge thus granted a decree of maintenance in the above terms vide his judgment dated 12-7-1988.
5. Feeling aggrieved, respondent preferred an appeal impugning the judgment and decree of Judge Family Court. The learned appellate Court, in essence, concurred with the findings of the learned Judge Family Court in so far as the justification of the claim of maintenance and her entitlement thereto was concerned but found himself at variance on the point of the period of maintenance. For, in his opinion "under Mahammadan Law she is not entitled to a decree for the past maintenance unless there is specific Agreement entered into between the parties as to the payment of maintenance of allowance in case of desertion or the maintenance allowance has been previously fixed by a decree of the Court". Consequently he amended the judgment and decree of the learned trial Court too the extent that the petitioner was found entitled to receive maintenance allowance only for 3 months after dissolution of marriage albeit enhanced the quantum thereof from Rs.500 to Rs.700 p.m.
6. I have heard Malik Muhammad Humayan Khan Advocate for the petitioner and Muhammad Parvez Khan Advocate for the respondent at length and also perused the record of the case with their valuable assistance.
7. It is contended on behalf of the petitioner that the learned appellate Court fell in error by holding that in the absence of an agreement between the parties or a decree granted in favour of the petitioner, she is not entitled to the past maintenance. It is submitted by the learned counsel that the entitlement of the petitioner to past maintenance allowance is not subject to such pre- conditions and, accordingly, the impugned judgment of the learned District Judge, Mansehra being against the law, is liable to correction in that the petitioner was entitled to the maintenance for the period earlier to `talaq' besides the `Idat' period, the questioned authenticity of the pronouncement of divorce notwithstanding. He placed reliance on a decision of Supreme Court in case Muhammad Nawaz v. Mst. Khurshid Begum and others reported in PLD 1972 SC 302 and urged that the impugned decision of the appellate Court being contrary to the principle laid down by the Supreme Court on the point in issue is thus without jurisdiction and as such this writ petition merits acceptance.
8. As against this, the learned counsel for the respondent, while supporting the decision in the impugned judgment of the learned appellate Court, vehemently argued that it is in accord with Islamic law as is exposed by D.F. Mulla in paragraph 2613 of his work, "Principles of Muhammadan Law." He, therefore, contended that while the judgment and decree of the first Court was erroneous in law, the impugned judgment of the learned appellate Court has rightly rectified the infirmity which the Judgment and decree of the learned Judge Family Court was suffering from.
9. We have given our serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
10. It may be mentioned at this stage that in so far as the neglect to maintain the petitioner on the part of the respondent is concerned, both the learned lower forums have given positive findings concurrently in that respondent has neglected to maintain the petitioner and has violated his duty which a Muslim husband is under an obligation of. On a perusal of the record, we also subscribe to the views of the learned lower Courts in this regard and find that the impugned judgments of both the learned lower Courts have proceeded in right direction in holding the petitioner having been neglected in her maintenance and as such she was entitled to the maintenance allowance.
11. Thus the only point that falls for determination is as to whether what is exposed in para 268 of D.F. Mula's "Principles of Mohammadan Laval" is an inflexible rule or when a were sues her husband for the maintenance of `talaq' and proves to the satisfaction of the trial Court that during this period the husband has neglected her; whether in the absence of an agreement or decree of Court, she is entitled, or not, to receive such past maintenance allowance.
12. The operative part of the judgment of the learned District Judge reads as follows:- "So far as the impugned decree passed by learned trial Court for past maintenance is concerned, it is not maintainable on its face value because under Mohammadan Law, she is not entitled to decree for past maintenance unless there is a specific agreement entered into between the parties as to payment of maintenance allowance in case of desertion etc. Or the maintenance allowance has been previously fixed by a decree of the Court.
13. It appears that concept on which is founded the impugned judgment of the learned District Judge is borrowed from the Mulla's Principles of Mohammdan Law as contained in para 208 which reads as under:-- "268. Order for maintenance.--if the husband neglects or refuses maintain his were without any lawful cause, the were may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement. Or, she may apply for and order of maintenance under the provisions of the Code of Criminal Procedure, 1908, Section 488, in which case the Court may order the husband to make a monthly allowance in the whole for her maintenance not exceeding five hundred rupees."
But the learned appellate Court failed to apply its mind to the fact that this question has been subject of a chain of decisions rendered by the superior Courts of Pakistan which, in the context of the laws enacted in Pakistan on the subject, did not subscribe to the aforequoted view of Mulla.
14. It is noteworthy that in Islam, a husband is bound to maintain his were throughout the period she remains in matrimonial bonds with him. This principle is, however, contingent with two- preconditions. One, that when a were abandons the conjugal domicile of husband without any valid reason and two that when she disobeys her husband without a good cause. In other words, if a desertion on the part of were from the husband's abode is involuntary or/and the separation is not caused by any mis-conduct on her part or, for that matter, disobedience is founded on a valid cause, she will be entitled to the maintenance by the husband till the dissolution of her marriage.
This principle is more akin to Hanfi School of Islamic Law.
15. A reference to the Shafei School of thought on the subject shows that arrears of maintenance, in all circumstances, would be a debt upon the husband '', and is liable to be recovered as such by the were or by her successor-in-interest from the husband or even from his legal heirs or out of the property of the husband, as the case may be.
16. It would thus be seen that under Islamic Law generally, a were is simply required to show that she has been neglected by her husband for a specific period of time and has not been maintained with no fault of her's, namely, that she did not desert her conjugal abode without any reasonable cause or she did not disobey her husband without a good cause. In this context of the matter, past maintenance is to be treated as a debt upon the husband, and his liability to pay the same cannot be made conditional. In other words, the right of were to successfully press into service her claim to past maintenance, per se, would not suffer from an absence of a previous agreement or decree to this fact in her favour.
17. A reference to the statutory law governing the subject of maintenance, including past maintenance, reveals that the Family Courts Act, 1964 is rather an Act Rri materia, to the Muslim Family Laws Ordinance, 1961 and while, under section 9 of the earlier statute, an Arbitration Council was competent to grant maintenance to a neglected were from her husband; under later enactment, as per its section 5 read with item No.3 of the Schedule annexed thereto, the Family Court is enjoined exclusive jurisdiction to entertain, hear and adjudicate upon the question of maintenance. The impugned maintenance granted by the learned Judge Family Court is in exercise of his jurisdiction vested in him under section 5 of the Family Courts Act, 1964.
18. The question of past maintenance thus with reference to section 9 of the Muslim Family Laws Ordinance, 1961, came up for examination before a learned Division Bench of Lahore High Court in the case of Sardar Muhammad v. Nasima and others PLD 1966 Lah. 703 wherein it was ruled that maintenance could be granted from the date of accrual of the cause of action subject, of course, to the consideration of limitation and it was held as under:- "Further support is lent to the latter view from the fact that the competency of the Kazee to grant maintenance for the past has also been admitted by the Hanafi School of thought as is clear from the following Heading of the excerpt from Hamilton's Hadaya quoted earlier which reads: `Arrears of maintenance not due unless have been decreed by the Kazee.'
Thus the competency of the Courts of today which have stepped into the shoes of the Kazees for the purposes of adjudication of these matters flows as necessary corollary therefor. The mere fact that a neglected were has been hesitant in promptly coming to the Court or has been pursuing alternative remedies out of Court cannot in all fairness he 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 the jurisdiction to grant such maintenance subject of, course to consideration of limitation and the relevant circumstances of each case, and we hold accordingly."
19. Later Sardar Muhammad's case came up for consideration before the Supreme Court of Pakistan in case of Muhammad Nawaz v. Mst. Khurshid Begum and 3 others and while expressing their concurrence with the view taken in the said decision the learned Judges of the Supreme Court were please to hold:- "The learned counsel for the appellant was unable to satisfy us that the view taken by the High Court is faulty or that it is not in accordance with law. We agree with this view and hold that past maintenance can be allowed."
20. It will be pertinent to note that this view has been consistently adhered to in the case of Manzoor Ahmad v. Mst. Naziran Bibi and others (PLD 1975 Lah. 571), Sheikh Abdul Karim v. Mst.
Irshad-un-Nisa Begum (PLD 1977 Kar. 477) and Mst. Gul Bibi v. Muhammad Salim and others (PLD 1978 Quetta 117) and followed later in the case of Mst. Hajiran Bibi v. Abdul Khaliq (PLD 1981 Lah. 761) and Abdur Rehman's v. Mst. Khatoon and 2 others (PLD 1989 Kar. 500) to cite a few.
21. In the context of the foregoing, we do not find ourselves in concurrence with what is expounded in para 268 of Mulla's "Principle of Muhammadan Law" which was referred to and taken into consideration both in Sardar Muhammad's case and also in Muhammad Nawaz's case but was not followed and our answer to the question posed in para 11 supra is affirmative in that a neglected were is entitled to receive past maintenance allowance, the absence of an agreement or a decree of Court notwithstanding.
22. We are therefore of the considered opinion that Muhammad Nawaz's case (1) PL D 1972 SC 302, on the face of it, does not appear to be different from, and is rather parallel to, the case in hand and as such fully applicable to the facts and circumstances thereof.
23. Viewed the matter in the perspective of the foregoing discourse and following respectfully what is laid down in the aforequoted decisions, we have no hesitation in holding that while taking into consideration the factual aspect of this case, the absence of a prior agreement or for that matter, a decree in favour of the petitioner was not bar to allow her past maintenance f9r the period commencing from March, 1985 to October 1987 and the findings contrary thereto rendered by the learned District Judge Mansehra was misconceived and being contrary to what is laid down by the superior Courts, merits interference therewith.
24. Resultantly we allow this writ petition and modify the judgment and decree of the learned District Judge Manschra to the extent that the petitioner shall be entitled to receive and recover the maintenance allowances from the respondent and he shall be liable to pay her same at the rate granted by the learned appellate Court commencing from March, 1985 to October, 1987 (both months inclusive).
25, Respondent shall pay Rs.500 as special cost to the petitioner.