' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of a matrimonial dispute. Respondent No,4 Mst. Imtiaz Kausar was married to Ghulam Jillani, petitioner, on 30th August, 1984. Unfortunately, dispute and differences arose between the parties with the result that the petitioner divorced the said respondent on 30th August, 1986, which statedly became effective on 30th November; 1986.
2. On 6th of June, 1988, an application under Section 9 of the Muslim Family Laws Ordinance, 1961, for grant of maintenance for a period of 7 months @ Rs,2500 was filed by respondent No,4 before the Chairman, Arbitration Council, Chak Jhumra, respondent No,3 herein.
3. The petitioner challenged the assumption of jurisdiction by respondent No,3 by filing Writ Petition No,561/89 in this Court, which was disposed of with the observation that the petitioner should in the first instance, raise the jurisdictional objection before respondent No,3. Consequently, in his reply to the application for maintenance, the petitioner raised an objection that as respondent had ceased to be the wife of petitioner, she could not make an application under Section 9 of the Ordinance.
The petitioner statedly filed two applications in this, behalf on which respondent No,2 asked for legal advice from the Legal Adviser. According to the petitioner, no further proceedings were taken thereafter but he surprisingly found that the application of respondent No,3 for the grant of maintenance had been allowed by the Arbitration Council vide its order dated 1st June, 1989 whereby the petitioner was directed to pay maintenance to respondent No,4 @ Rs,2000 per month for 20 months. This order was challenged by the petitioner unsuccessfully by filing a revision which was dismissed by the Collector, Faisalabad, on 8th November, 1990. Hence this petition.
4. The only argument raised by Mr. Muhammad Zahid Abbasi, learned counsel for the petitioner in support of this petition is that as the petitioner had divorced respondent No,4 on 30th August, 1980, which became effective on 30th November, 1986, respondent No,4 had ceased to be the wife of the petitioner and as such she could not have invoked the jurisdiction of the Arbitration Council under section 9 of the Muslim Family Laws Ordinance, 1961, recourse to which can only be had during the subsistence of the marriage by the wife and not after she had ceased to be a wife and had become an ex-wife. Reliance has been placed by the learned counsel on Mst. Naziran v. The Collector, Sialkot and 2 others (1990 SCMR 803) and Mushtaq Ahmad v. The Collector/Deputy Commissioner, Lahore District Lahore and 2 others (1986 CLC 2312(2).
4-A. Mr. S.M. Masood, learned counsel appearing on behalf of the contesting respondent has controverted the arguments of the learned counsel for the petitioner by contending that notwithstanding the dissolution of marriage, if a period for which maintenance is asked for relates to the time when the marriage was subsisting the provisions of section 9 of the Muslim Family Laws Ordinance, 1961, can be successfully invoked. The strength in support of this proposition was sought to be drawn from the authority of the Supreme Court in Muhammad Najeeb v. Mst. Talat Shahnaz (1989 SCMR 119), Muhammad Banaras v. Chairman, Union Council, Chak Malak Tehsil and District Chakwal etc 1991 MLD 112, and Muhammad Abdur Rashid v. Mst. Shazia Parveen and others (1987 MLD 766).
5. The question which arises for consideration is as to whether after the dissolution of marriage, an ex-wife can recover maintenance from her ex-husband by filing an application under section 9 of the Muslim Family Laws Ordinance, 1961. There cannot be any doubt that section 9 of the Muslim Family Laws Ordinance, 1961, is a beneficial piece of legislation and is to be construed, keeping in view the object for which it was enacted, which was to provide remedy to women for recovering maintenance from their husbands before a domestic forum which is free from all legal formalities.
Viewed from this angle, it becomes difficult to accept the contention of the learned counsel for the petitioner, that if a marriage stands dissolved, the wife cannot invoke section 9 of the Ordinance.
There appears to be no rationale for accepting such an interpretation. The contention of the learned counsel that since the words 'wife' and `husband' appearing in section 9, have reference to cases only where the marriage subsists is not well founded. If the dispute relates to the period during which the marriage was subsisting, and the husband was under an obligation to maintain the wife, she can certainly ask for recovery of the maintenance for that period, notwithstanding the dissolution of marriage. I am fortified in this view by the authority of the Supreme Court in Muhammad Najeeb v. Mst. Talat Shahnaz (1989 SCMR 119) wherein it was observed that: "Nevertheless, we heard both the learned counsel on technical questions also raised by them. In the first petition the argument of the learned counsel, that section 9 of the Family Laws Ordinance speaks of a 'husband' and a 'wife'. The petitioner having divorced the respondent wife therein, she could not have made an application as a 'wife' for maintenance. We do not agree with him. When an application is made by an ex-wife for maintenance regarding period when the wedlock was intact and also for the Iddat period, it would be made by the so-called divorced wife and would be covered by the word 'wife' as contained in section 9. Therefore, there is no force in the argument of the learned counsel."
' The observation of this Court in Muhammad Abdur Rashid v. Mst. Shazia Parveen and others (1987 MLD 766), the learned Chief Justice was of the opinion that a divorced wife was entitled to receive maintenance for the period of Iddat, if any, awarded by the Arbitration Council after divorce proceedings had concluded. The last case to which reference may be made is that of Muhammad Banaras v. Chairman, Union Council, Chak Malak, Tehsil and District Chakwal etc. 1991 MLD 112, wherein my learned brother M. Mahboob Ahmad J (as his Lordship then was), repelled similar contention as is being raised by the learned counsel for the petitioner.
6. It is to be seen that while considering the nature of the maintenance awarded, to the wife, it was held by this Court in Rashid Ahmad Khan v. Mst. Nasim Ara and others (PLD 1968 Lahore 93), that the husband's obligation to maintain the wife commences simultaneously with the creation of matrimonial tie and is an obligation and not ex gratia grant and, therefore, it can be enforced with regard to past period of married life, if the wife did not claim it during that period. For this reason also the contention of the learned counsel that for the period that the Arbitration Council cannot direct recovery of arrears of maintenance if the marriage has been dissolved cannot be accepted.
Once a liability on account of maintenance has accrued, it can be recovered in the manner provided in section 9 of the Muslim Family Laws Ordinance, 1961.
7. As regards the cases cited by the learned counsel for the petitioner, a reference to Mushtaq Ahmad v. Collector/Deputy Commissioner, Lahore (1986 CLC 2312), would show that no reason in support of the opinion was given by the learned Judge. So far as the judgment of the Supreme Court in Mst. Naziran v. Collector is concerned, it is distinguishable, nor is there any discussion on the subject. As already observed this question was considered and decided by the Supreme Court in Muhammad Najeeb v. Mst. Talat Shahnaz (1989 SCMR 119) which I respectfully follow.
For the reasons aforesaid, this petition has no force and is dismissed leaving the parties to bear their own costs.