MUHAMMAD BASHIR KHAN JEHANGIRI, J.--Nadir Khan, petitioner, was married to Mst. Zeenat Bibi somewhere in the mid-seventies and two daughters, namely, Mst. Farhat Bibi and Mst. Nusrat Bibi were born from the converture. In the month of December, 1980, the petitioner expressed his desire to contract second marriage which was obviously resisted by respondent No.1. The petitioner got enraged and started giving beating to respondent No.1. Ultimately, it is alleged, the petitioner after depriving her of her ornaments and other belongings, turned her out of his house and contracted second marriage. In consequence, Mst. Zeenat Bibi, respondent No.1 instituted three suits against the petitioner respectively for recovery of the dower amount of Rs.2,000 and for recovery of maintenance for herself and also for her two daughters under section 488 Cr.P.C. And for dissolution of her marriage. The petitioner, on his part, brought a suit for restitution of conjugal rights. Upon contest being entered thereto, all the four suits were consolidated and necessary issues were settled. During the course of the proceedings, parties agreed to refer their disputes to arbitration. The Arbitrators returned their award which was ultimately made rule of the Court. The learned Judge, Family Court, in pursuance of the terms of the award, dismissed the two suits, namely, for maintenance of herself and dissolution of her marriage, but awarded maintenance allowance at the rate of Rs.600 per mensum for her children and decreed suit of the petitioner for restitution of his conjugal rights.
2. Plaintiff-respondent No.1 felt aggrieved of these decisions and preferred four appeals bearing Nos.10/13, 11/13, 12/13 and 14/13 whereas the petitioner challenged the grant of maintenance allowance to his two daughters by way of filing appeal No.13/13. The learned Additional District Judge, Bannu, at Lakki, by a consolidated judgment dated 17-9-1988 while accepting the appeal of respondent No.1 granted a decree for dissolution of her marriage and dismissed the suit of the petitioner for restitution of his conjugal rights. The order of maintenance and the decree for recovery of dower amount was maintained.
3.Dissatisfied with the appellate order of the learned Additional District judge, the petitioner has filed this writ petition.
4. Haji Saadullah Khan Mian Khel, the learned counsel for the petitioner, contended that the view of the learned Additional District Judge that matrimonial matters cannot be referred to the arbitration is erroneous, in that, such like matters can be validly and appropriately decided by way of arbitration with a view to bringing about settlement between the parties. Mr. Mian Khel next argued that the petitioner had contracted second marriage with the consent and free-will of respondent No.1 and that in any case the long silence of respondent No.1 over the years was tantamount to acquiescence and, therefore, she was devoid. Of any cause of action to bring the suit for dissolution of marriage. Lastly, the learned counsel for the petitioner submitted that the learned Appellate Court had committed serious and material illegality in granting maintenance to respondents 2 and 3, for, the petitioner had been trying his level best to take back the respondents, but respondent No.1 was adamant to live with them and thus the respondents were absolutely disentitled to any maintenance and, therefore, the orders made in this respect are liable to be quashed. Reliance was placed on Mohammad Aslam v. Judge Family Court (1987 CLC 247).
5. As against this, Mr. Muhammad Jehangir Awan, the learned counsel for the respondents, urged that the learned Judge Family Court had fallen into a gave error to refer to arbitration the disputes of matrimonial nature, such as the suits for dissolution of marriages and restitution of conjugal rights. In support of this proposition, the learned counsel referred to: (1) Malka v. Sardar (AIR 1929 Lahore 394); (2) Isherdas v. Viran Bai (AIR 1930 Lahore 707) and (3) Muhammad Sulaiman v. Oadir Bux (PLD 1965 (W.P.) Karachi 326).
6. Relying on an earlier authority of Mira v. Dina (37 P.R. 1895) it had been held in Malka v. Sardar (AIR 1929 Lahore 394) that the question of restitution of conjugal rights cannot be referred to arbitration as that matter must be decided by the Court itself. While re-affirming this veiw in Ishar Das v. Mst. Viran Bai (AIR 1930 Lahore 707) it was elaborated that though the Court is not competent to refer the question of the exercise of its discretion in suits for restitution of conjugal rights to arbitration but other matters in dispute between the parties as distinct from the whole suit can be so referred and the Court can, on award of the arbitrators or the facts determined by the arbitrators, decide whether it should or should not exercise the discretion in favour of the plaintiff.
Nonetheless the alternative contention of the learned counsel for the petitioner that if the suit for restitution of conjugal rights could not be referred to the decision of arbitrators, then the order of maintenance granted to the respondents Nos.2 and 3 for which support was also sought from the decision of the Arbitrators is equally not maintainable stands repelled by the dictum laid down in the case of Ishar Das. The Appellate Court could, therefore, quite justifiably exercise its discretion in favour of the respondents qua the determination, of maintenance allowance.
7.In the precedent case of Mohammad Sulaiman cited by the learned counsel for the respondents, Waheed-ud-Din J., as his Lordship then was, in almost similar circumstances, has held that the question of dissolution of marriage of any person is not amenable to the jurisdiction of arbitrators and that, therefore, no dispute could be referred to them. These three authoritative pronouncements had since long settled the proposition and we would reiterate it that suits for restitution of conjugal rights and dissolution of marriage cannot be legally referred to arbitration.
This being so, we have no hesitation to hold that A the learned Appellate Court was perfectly justified in ignoring that portion of the award which dealt with the disputes concerning the restitution of conjugal rights and dissolution of marriage.
8. Learned counsel for the petitioner, as stated earlier, has invited our attention to the case of Mohammad Aslam v. Judge Family Court for the proposition that where a child is staying away from the father contrary to legal rights of his custody and guardianship, the father is not liable to pay maintenance for such a child. It is not the case of the petitioner that his two daughters are staying away from him against his wishes and contrary to his right of their custody and guardianship, because the custody and guardianship of the daughters legally vests in the mother till they attain puberty and the custody is duly made over to the father. In the instant case, both the girls are minor and respondent No.1 being their mother would be legally entitled to their custody and guardianship. We are, therefore, in respectful agreement with the proposition laid down in the case of Muhammad Aslam cited above, but even in this precedent it has been clearly held that undoubtedly there is no liability of the father to pay maintenance for a child who is staying away from him against his wishes and contrary to his right of custody and guardianship but otherwise, father's duty to maintain his children is absolute. We have already held that the two minor respondents are not staying away from the petitioner contrary to his right of custody and guardianship and g accordingly his duty to provide maintenance to them is absolute.
9.The Appellate Court held the view that the onus to prove that the petitioner had contracted second marriage with the consent of respondent No.1 heavily lay upon the petitioner which he had miserably failed to discharge. No C exception can possibly be taken to this finding of the learned Appellate Court. The contention of the learned counsel for the petitioner has no substance and stands repelled.
10. The learned counsel for the petitioner had serious objection to the grant of maintenance to the tune of Rs.600 per mensum without any evidence inasmuch as the learned Appellate Court had again placed reliance on the arbitration award which had not found favour with it for dissolution of marriage. In this context, it was argued that the petitioner was a driver and allowance so fixed was disproportionate to his earnings. In the circumstances of this case, we are of the opinion that the learned Appellate Court had upheld the order of maintenance in toto for cogent reasons and by invoking the findings of the arbitrators in this behalf.
11. For the foregoing reasons, the petitioner has not been able to make out a case for our interference in exercise of our constitutional jurisdiction in the impugned orders. Resultantly, this writ petition is dismissed with costs.