' An interesting question of law arises in this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 which is whether under the Islamic Law the legal heirs of wife can recover maintenance awarded against the husband after the death of either of them.
2. The dispute arises in the following circumstances. Mst. Shahzadi Pukhraj, since deceased, was married to the petitioner on 25-10-1974. She was, however, divorced by the petitioner by pronouncing Talaq on 1-9-1985. Earlier, Mst. Shahzadi Pukhraj had filed an application before Arbitration Council under Section 9 of the Muslim Laws Ordinance, 1961 for recovery of maintenance. An order directing the petitioner to pay maintenance at the rate of Rs,1,500 per month from 1-5-1982 till the date of dissolution of marriage i,e, 1-9-1985 was passed by the Arbitration Council. That order was challenged in revision by the petitioner which was, however, dismissed.
3. Mst. Shahzadi Pukhraj applied for execution of the order of maintenance but unfortunately she died during the pendency of these proceedings on 24th May, 1991, leaving behind respondents Nos.4(i) to 4 (viii) who are her mother, sisters and brothers as her legal heirs who were impleaded in the execution application as petitioners.
4. An objection was raised before the executing Court that with the death of Mst. Shahzadi Pukhraj, the claim for maintenance had abated and the order for payment of maintenance had become ineffective. That objection was repelled by the Collector on 7th July, 1992 which obliged the petitioner to file this petition.
5. It was contended by the learned counsel for the petitioner that the recovery of maintenance was a personal right which does not survive death of the wife and cannot be recovered by her legal heirs and even the decrees the wife and cannot be recovered by her legal heirs and even the decrees orders passed for recovery of maintenance, if not executed during the lifetime of the spouses, becomes unexecutable. Reliance was placed upon statement of law appearing at page 143 of Hedaya by Charles Hamilton, Fatawa Alamgiri page 591 and Fatawa-i-Kazee Khan Vol. 1 monorame 1619 page 283 by the learned counsel for the petitioner.
6. Keeping in view the importance of the matter, this Court on 1st November, 1994 had directed that Dr.Riaz-ul-Hassan Gillani, Advocate be asked to appear as amicus curiae. I am grateful to him for the valuable assistance rendered by him which has enabled this Court to resolve this difficult question of law.
7. The contention of the learned counsel for the petitioner that maintenance awarded during the lifetime of wife by Qazi cannot be recovered by legal heirs of wife is supported by Hedaya wherein at page 143 it is stated that: "Arrears of a decree maintenance drop in case of the death of either party.--If the Kazee decree a wife her maintenance, and a length of time elapse without her receiving any and the husband should die, her maintenance drops and the rule is the same if she should die; because maintenance is a gratuity, respecting which the rule is that it drops in consequence of death, like a gift, which is annulled by the decease of either the donor or donee before seisin being made by the latter.... Shafei says that the maintenance is in all circumstances to be considered as a debt upon the husband, in conformity with his tenet, that it is not a gratuity but a return, wherefor it cannot drop like demands of the former description."
' Similar statement of law appears in Fatawa Alamgiri Vol.II at page 591 and Fatawa-i-Kazee Khan (Vold monograme 1619) at page 283.
8. As explained by Dr. Riaz-ul-Hassan Gillani, the opinion expressed by these jurists represented the old classical view of Hanafi school of thought, according to which maintenance was not a right of the wife but was an ex gratia grant. To maintain a wife was considered to be a moral rather than a legal obligation and as such the wife could neither recover maintenance by filing a suit nor could she ask for dissolution of marriage in the event of non-payment of maintenance. Imam Malik had, however, expressed a different opinion and was of view that the maintenance was a right of the wife and its non-payment was a valid ground for dissolution of marriage.
9. The orthodox Hanafi view resulted in great hardship for women deserted by their husbands who were remedyless and could neither ask for dissolution of marriage nor recovery of maintenance.
The problem faced by them assumed alarming proportions and was realized by the Muslim Scholars belonging to different schools of thought including the followers of Imam Abu Hanifa. After deliberation, a consensus was arrived at between them that the view of Imam Abu Malik in preference to other views be adopted in order to alleviate the sufferings of humanity. Even according to the Hanafi jurists, by consensus it is permissible to adopt the interpretation of another school of thought in the event of difficulty and hardship. (See page 35 of Al Hilat ul Najzia by Muhammad Saeed & Sons).
10. This consensus amongst Muslim jurists was given effect to by the legislature by enacting the Dissolution of Muslim Marriages Act, 1939. That Act placed an obligation on the husband to maintain his wife who was entitled to seek a decree for dissolution of marriage in the event of his failure to do so. After this enactment, the maintenance could no longer be said an ex gratia grant.
Consequently, no reliance can be placed on the principles stated in Hedaya, Fatawa-i-Alamgiri and Fatawa-i-Kazee Khan mentioned above.
11. There is another reason as to why the petitioner cannot succeed. Even if it be assumed as has been contended by the learned counsel for the petitioner that the maintenance is a personal right yet as a decree for enforcement of that right has been passed by the Court, the right matures into property and forms part of the estate which is inheritable on the death of the wife. As explained by the Supreme Court in Muhammad Aslam (Through his L.R.) v. Wazir Muhammad (PLD 1985 SC 46) the principle actio personalis moritur cum persona is subject to an important exception which is that where personal actions have matured into a decree, they become part of the estate of the deceased and can be inherited. The following observations of Supreme Court appearing at page 53 are instructive: "It is clear, therefore, that personal actions connected with the individuality of a person do not survive him (actio personalis moritur cum persona). There is, however, an important exception to it i,e, where personal actions have matured into a decree or become part of the estate of the deceased. As Salmond has put it 'A right vests when all the facts have occurred which by law occur in order for the person in question to have the right'. In the words of Paton, 'Every right arises from title, when all the investitive facts which are necessary to creat the right have occurred, the right is vested.' By a judgment, decree or order as the case may be, a personal action gets perfected and becomes a part of the estate of the deceased."
' The same principle applies in the present case also. The right to recover the maintenance having been perfected by a decree, it became part of the estate of the deceased and devolved upon her legal heirs on her death who are entitled to recover the decretal amount through execution.
' In view of what has been stated above, this petition is dismissed, leaving the parties to bear their own costs.