' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question orders dated 14th of June 1989 and 25th of October, 1989, respectively passed by respondents Nos.1 and 2. By the first order respondent No,1 allowing the application of respondent No,3 awarded past maintenance to her for the period of 2-1/2 years at the rate of Rs, 300 per month, whereas by the second order the Deputy Commissioner, Chakwal dismissed the revision of the petitioner filed against the aforementioned order of respondent No,1.
2. The facts necessary for the purposes of this petition, briefly stated, are that the petitioner was married with respondent No,3 who, alleging desertion, filed a suit against the petitioner before the Judge Family Court, Chakwal for maintenance at the rate of Rs, 500 per month for her and Rs,300 per month for her son as also for recovery of Rs, 24,000 being the past maintenance and the expenses incurred in the delivery of the child. On 6-10-1988 the counsel for respondent No,3 made a statement before the Court that since she has filed a suit for dissolution of marriage, she wants to withdraw the suit for maintenance whereupon the Family Court, Chakwal dismissed the said suit as withdrawn.
3. Respondent No,3 thereafter filed an application before respondent No,1 on 23-10-1988 claiming past maintenance for her alone at the rate of Rs, 300 per month for the past period of 2-1/2 years.
This application was resisted by the petitioner. Respondent No,1 constituted an Arbitration Council before whom proceedings were taken and ultimately by order, dated 14th of June, 1989, the application of respondent No,3 was allowed and a decree for Rs, 9,000 was passed in her favour and against the petitioner.
4. The petitioner feeling aggrieved of the aforementioned order, dated 14th of June, 1989 preferred a revision before the Deputy Commissioner, Chakwal who by his order, dated 25th of October, 1989 dismissed the same.
5. The petitioner still feeling dissatisfied has come up to this Court in the present Constitutional petition.
6. The learned counsel for the petitioner has raised the following contentions:--
7. (1) That respondent No,3 having withdrawn her suit for maintenance from the Family Court, her application before respondent No,1 was not competent and she was estopped from claiming the maintenance as she abandoned her claim by withdrawal of the first suit;
(2) That the maintenance for a past period cannot be granted by the Arbitration Council;
(3) That respondent No,2 decided the revision as Controlling Authority whereas he should have decided it as a Collector as required by the Muslim Family Laws Ordinance, 1961;
(4) That the quantum of maintenance viz. Rs,300 per month has been fixed without inquiry and arbitrarily; and
(5) That respondent No,1 having been the counsel of respondent No,3 in the Family Court should not have headed the Arbitration Council.
7. On the contrary, the learned counsel for respondent No,3 contended that the application is in no manner barred on account of withdrawal of the suit for maintenance; ' Secondly-- ' that section 9(1) of the Muslim Family Laws Ordinance, 1961, under which the application had been filed by respondent No,3 before respondent No,1 for grant of past maintenance, has an overriding effect and, therefore, the application of respondent No,3 was competent before respondent No,1; and ' Lastly-- ' that section 9(1) of the Muslim Family Laws Ordinance, 1961 gives a right to respondent No,3 to make an application before the Arbitration Council for grant of past maintenance.
8. I am afraid the contentions raised on behalf of the petitioner do not have any force. Since the first contention of the learned counsel for the petitioner can be resolved after consideration of section 9(1) of the Muslim Family Laws Ordinance, 1961 and sections 5 and 21 (1) of the West Pakistan Family Courts Act, 1964, the said provisions are reproduced hereunder for facility of ready reference:--- ' SECTION 9 OF THE MUSLIM FAMILY LAWS ORDINANCE, 1964 "9. Maintenance. I(1) If any husband fails to maintain his wife adequately or where there are more wives than one fails to maintain them equitably, the wife, or all or any of the wives may in addition to seeking any other legal remedy available, apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband."
' SECTION 5 OF THE WEST PAKISTAN FAMILY COURTS ACT, 1964 "5. Jurisdiction. Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Court shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule."
' SECTION 21 (1) OF THE WEST PAKISTAN FAMILY COURTS ACT, 1964 "21. Provisions of Muslim Family Laws Ordinance to be applicable.
(1) Nothing in this Act shall be deemed to affect any of the provisions of the Muslim Family Laws Ordinance, 1961, or the rules framed thereunder "
A perusal of sections 5 and 21 of the West Pakistan Family Courts Act, which enactment is of a later date viz. 18-7-1964, shows without any ambiguity that the provisions of the Muslim Family Laws Ordinance, 1961, an earlier statute, were intended to be kept intact and in fact were given an overriding and in any case supplemental effect to the provisions of any other statute on the subject.
On a conjunctive reading of the aforementioned provisions of the two relevant statutes it also clearly emerges that there was no impediment in the way of respondent No,3 in making an application under section 9(1) of the Muslim Family Laws Ordinance, 1961 as she could make such an application for allowing maintenance to her in addition to seeking any other legal remedy available to her for the purpose. The entitlement of a wife to avail of the remedy under section 9(1) ibid has been given further protection by sections 5 and 21 of the West Pakistan Family Courts Act, 1964. Section 5 of the West Pakistan Family Courts Act, 1964 subjects the exclusive jurisdiction of Family Courts regarding matters B specified in the Schedule, item 3 of which is maintenance, to provisions of Muslim Family Laws Ordinance, 1961. Again section 21 of the West Pakistan Family Courts Act, 1964 provides that nothing contained in the Act shall be deemed to affect any of the provisions of the Muslim Family Laws Ordinance, 1961 or the rules framed thereunder. The withdrawal of the suit for maintenance by respondent No,3 from the Family Court before filing of the application by her before respondent No,1 would, therefore, not render the latter application as incompetent or for that matter be an estoppel against respondent No,3 from claiming the maintenance. The first contention of the learned counsel for the petitioner thus fails.
9. Taking up the second contention raised by the learned counsel for the petitioner, it would be observed that the tenor of the language used in section 9 of the Muslim Family Laws Ordinance, 1961 in no manner even impliedly imports that maintenance allowable to a wife is the future maintenance only and that the jurisdiction to allow past maintenance has not been conferred thereunder. In "Rashid Ahmed Khan v. Mst. Tasnim Ara and others" reported as PLD 1968 Lah. 93 following an earlier judgment in "Sardar Muhammad v. Mst. Nasima Bibi and others" reported as PLD 1966 (W.P.) Lah. 703 it has been held that the husband's obligation to maintain his wife commences simultaneously with the creation of marital bond and being an obligation and not an ex gratia grant it is enforceable even with respect to the past period of marital life although the same was not claimed during that period by the wife subject, however, to considerations of limitation and circumstances of the case itself. The enunciation of section 9 of the Muslim Family Laws Ordinance, 1961 as aforestated to me also appears to be the only one which can be realistically made and no other interpretation of this section is possible so as to deprive a wife from claiming past maintenance which otherwise may be permissible to her of course keeping in view the prescription of limitation etc. The second contention in view of the above discussion has, therefore, no merit.
10. The designation of the Officer who decided the revision of the petitioner having been given as Deputy Commissioner/Controlling Authority instead of Collector or for that matter the subject of the order having been shown as a revision under section 8 of the Conciliation Courts Ordinance, 1961 cannot be held to be so fatal as to make the said order of the Revisional Authority wholly invalid or coram non judice. It is well settled that the quoting of a wrong law or giving a wrong description of the Authority making an order will not invalidate the order merely on the grounds stated above, especially when the Authority making the order is holding a number of offices as is the case in hand in that the Deputy Commissioner apart from this position holds the office of a Collector as also of the Controlling Authority under the provisions of Conciliation Courts Ordinance, 1961.
' Legitimate criteria which can be laid to determine validity or otherwise of an order in such a situation to my mind appear to be to see whether the contents of the order in question show the full application of mind by the Authority deciding the case and whether it has resolved the real controversy between the parties. If the above criteria stand fulfilled in a given case, the misdescription as to designation or quoting of a wrong law cannot be held to be fatal and ought not be allowed to impede the real intent and concept of jusitce for if it be held otherwise this would only result in prolongation of litigation and multiplicity of proceedings which in the circumstances prevailing in our society today will add to the miseries of the people by adding to the large pendency of litigation between the parties which is a consistent source of delay in disposal of cases and thus a set-back to the expeditious dispensation of justice which at times results in defeating the ends of justice. Such a situation of necessity and for betterment of the society has to be avoided as far as practicable.
In the case in hand a perusal of the impugned order of the Revisional Authority shows a complete and full application of mind to the facts of the case and also to the law applicable to the controversy. On the criteria hereinabove stated the order cannot be held to be suffering from a fatal infirmity. The third contention of the Jearned counsel for the petitioner also, therefore, fails.
Before parting with this aspect of the matter I feel it necessary to impress upon the forums charged with the statutory duties of deciding lis and causes of parties to exercise extra care and caution while delivering judgments and passing orders so that such discrepancies and lacunas do not creep in their decisions. Neglect in this respect not only always causes complications but also promotes litigation which in the ultimate entails waste of valuable national time that can be used in more productive avenues.
' A copy of this order should be sent to the Deputy Commissioner, Chakwal for his future guidance.
11. Likewise the fourth contention of the learned counsel for the petitioner also cannot be sustained in that a comparative reading of the application made by respondent No,3 before the Arbitration Council and the reply thereto filed by the petitioner would show that the quantum of maintenance at the rate of Rs,300 per month was never specifically disputed by the petitioner. Again in the proceedings before the Arbitration Council the quantum of maintenance was reduced into an issue (issue No,iii) which reads as under:- {{URDU TEXT}} ' and on this issue a finding was recorded by respondent No,1 to the effect that the petitioner's financial position according to the material on record can bear the maintenance as claimed by respondent No,3. This finding on a question of fact has also been affirmed by the Revisional Authority. Being a concurrent finding on a question of fact arrived at by Tribunals of exclusive jurisdiction, the same cannot be allowed to be challenged in the constitutional jurisdiction of this Court. There can be no cavil to the firmly established principle that controversies of facts are not fit subjects for resolution through constitutional jurisdiction of this Court.
12. Adverting now to the last contention raised on behalf of the petitioner, I suffice by observing that objection as to the heading of the Arbitration Council by respondent No,1 has been neither raised by the petitioner in his reply to the application before respondent No,1 nor any such question was agitated during the proceedings before the Arbitration Council. Again the said objection was neither taken in the grounds of revision before the Revisional Authority nor it was urged before the said Authority at the time of hearing. In the aforementioned circumstances it is too late in the day to allow such a plea to be raised in the constitutional jurisdiction of this Court. The last contention also, therefore, fails.
13. In view of the foregoing discussion this writ petition being without merit is dismissed. There will, however, be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.