TARIQ PERVEZ KHAN, J.---A suit was instituted, bearing No.217/FC, by respondent Mst. Chanwari (wrongly recorded in the heading of the petition as Mahnoori and another suit bearing No.230/FC both in the Court of Civil Judge/Judge Family Court, Mansehra. The former suit, was for Rs.20,000 as dower payable to the plaintiff-respondent and also for maintenance from February 1989 to November 1994 at the rate of Rs.500 per month. The later suit was filed by the plaintiff-respondent as next friend of her minor son Mir Afzal, who was born, out of the wedlock when plaintiff- respondent and the petitioner's marriage was still subsisting.
2. The marriage of the spouses was contracted about 10 years back to the date of, divorce, which was pronounced in the month of August, 1994 by the husband.
3. The two suits were consolidated and the learned trial Court, thereafter, framed issues. The case of the plaintiff before the Judge Family Court as reflected in the plaint was to the effect that at the time of their Nikah Rs.20,000 were fixed as dower amount and the whole of it remains unpaid. That right from the beginning the attitude of the petitioner defendant remained cruel which ultimately resulted in desertion of the wife plaintiff from the house of the husband in the month of February, 1989. It was also asserted that since then the petitioner defendant has never maintained the wife nor has paid the dower amount, notwithstanding the fact, that irrespective of many attempts for reconciliation the petitioner-defendant sent --- Talaqnama---.
4. The second suit field by Mst. Chanwari as next friend of her minor son was to the effect that the minor son was residing with the mother and since their desertion from the house of the petitioner- defendant the petitioner has never paid any maintenance amount to his son. The written statement filed by the petitioner-defendant, set up the case that dower amount was fixed Q Rs.500 which remained unpaid. As to the maintenance to the wife and the son the claim of the petitioner- defendant was that, he has been continuously paying them the maintenance allowance and that both, the wife and the son are still living in his house.
5. To resolve the dispute on facts the trial Court after framing consolidated issues in both the suits proceeded to record evidence of the parties. The plaintiff respondent in support of her case as to desertion, non-payment of maintenance allowance and the dower amount being outstanding, produced following evidence.
6. P. W. , Aslam Parvez a Muharrir of Police Station Darband produced a copy of daily diary No.7 dated 27-2-1989 and exhibited as Exh. P.W., 1/1, to show that the father of plaintiff-respondent has reported, that his daughter namely Chanwari the plaintiff respondent has been turned out from house by her husband. Mst. Chanwari appeared as her own witness as P.W.2 and reiterated the facts taken up in the plaint both for dower and non-payment of maintenance to herself and the son. Mohbeen the father of the plaintiff-respondent appeared as P.W.3 and confirmed the facts stated to by his daughter and so is the case of P.W.4 namely Dost Muhammad.
7. The petitioner defendant produced three witnesses namely Maulvi Muhammad Ayub who had allegedly recited the Nikah between the parties, the petitioner-defendant himself and one Faiz A.I to prove that dower amount was not Rs.20,000 but 500 and that maintenance has been regularly paid.
8. That after the conclusion of the parties and giving them opportunity to wind up their respective cases, arguments were heard and the learned Judge Family Court pronounced its judgment dated 20-3-1996 and passed a -decree in the terms that the plaintiff-respondent was granted decree of Rs.10,000 as dower amount and past maintenance allowance at the rate of Rs.250 per month with effect from February, 1989 to November, 1994. Simultaneously in the above stated judgment, a decree for past maintenance at the rate of Rs.250 per month with effect from February, 1989 to 20th March, 1996 was passed in favour of the son with further direction that the future maintenance allowance of the son shall be Rs.300 per month till he attains majority.
9.Aggrieved from the judgment and decree of the Judge Family Court the husband defendant has challenged the same through this writ petition.
10. The legal grounds taken' up in the petition are to the effect that the judgment and decree are liable to be set aside as the Court was not competent to allow past maintenance, the consolidation of both the suits was also challenged, the dower amount was said to be Rs.500 and not Rs.20,000 as decree by the trial Court and that the trial Court has misread the evidence.
11. We have heard the arguments of the learned counsel for the parties at sufficient length. This case has got two aspects, actual and legal. On facts, resume of evidence has been given in the preceding part of the judgment. The non-payment of dower amount is accepted by the husband- petitioner but he disagrees with the amount. The wife in order to prove that the dower amount was Rs.20,000 has appeared as her own witness, categorically stating therein the amount of dower to be Rs.20,000. The same amount has been reaffirmed by her father. It is important to note that Dost Muhammad P.W.4 when appeared in the witness-box also stated that the dower amount was fixed as Rs.20,000 which is still unpaid. He has also stated that the parties are related to him. In this background the evidence of Dost Muhammad who is totally disinterested witness, rather relative to the parties has gone unchallenged. No suggestion has been advanced to this witness to nullify the effect of his statement made in examination-in-chief.
12. The petitioner defendant has also produced oral evidence to the effect that dower amount was Rs.500 but in this behalf produced no documentary evidence.
13. No objection has been taken qua the jurisdiction of the trial Court viz, granting a decree for dower except, to the quantum of amount.
14. No doubt that either party has failed to produce documentary evidence as to the amount of dower fixed at the time of marriage (Nikah) but, from the evidence of .The plaintiff-respondent which has gone unchallenged it is crystal clear that the amount fixed was not Rs.500. The question is whether it was Rs.20,000 or less, has been determined by the learned trial Court, exercising its discretion on the basis of evidence to be Rs.10,000. We find no illegality in this finding.
15. Now comes the question of 'past maintenance' in respect of wife i.e. Plaintiff-respondent.
Learned counsel for the petitioner relied on a judgment reported as Syed Hamid A.I Shah v. Mst.
Razia Sultana (1991 CLC 766). The said judgment has dealt with the past maintenance in respect of wife as well, minor child. The child was granted a decree of past maintenance allowance while the wife was refused. It appears that the learned Single Judge in the judgment cited above was persuaded by referring to The Hedayat (Hamilton's Second Edition, page 149).
16. The point whether or not under section 9 of Muslim Family Laws Ordinance (VIII of 1961) past maintenance can be claimed by the wife. The august Supreme Court of Pakistan has given authoritative judgment it reported in PLD 1972 SC page 302 titled Muhammad Nawaz v. Mst.
Khurshid Begum etc. Beside referring the Ordinance (ibid) the august Supreme Court has also referred to the book of Hamilton and have quoted from page 142 which is as follows: "Arrears of maintenance not due unless the maintenance has been decreed by the Kazee or the rate of it previously determined on between the parties. If a length of time should elapse during which the wife has not received any maintenance from her husband, she is not entitled to demand any for that time, except when the Kazee had before determined and decreed it to her or where she had entered into a composition with the husband respecting it in either of which cases she is to be decreed her maintenance for the time ass because maintenance is an obligation in the manner of a gratuity as by a gratuity is understood a thin due without a return and maintenance is of this description, (the underlining is by us. It not being held according to our doctors) to be as a return for the matrimonial property; and the obligation of it is not valid but through a decree of the Kazee, like a gift, which does not convey a right to possession but through seisin, which establishes possession; but a composition is of equal effect with a decree of the Kazee, in the present case, as the husband, by such composition, snakes himself responsible, and his power over his own person is superior to that of the Magistrate. This reasoning does not apply to the case of dower, as that is considered to be a return for the use of the wife's person. "
Lahore 703 which has held: "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 a necessary corollary there from. The mere fact that a neglected wife has been hesitant in promptly coming to the Court or has been pursuing alternative remedies out of Court cannot in all fairness be so construed as to deprive her of the right of maintenance from the day when the causes 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". __ The two passages reproduced above reflect the concept on the issue of maintenance allowance which has been incorporated by the judgment of the Supreme Court. A perusal of section 9 of the Ordinance (ibid) does not prohibit the Court from granting past maintenance.'
17. Section 5 of West Pakistan Family Courts Act, 1964 which deal with the jurisdiction of the Family Court has empowered it, to adjudicate upon all such matters which are specified in the Schedule of the Act (ibid). The Schedule prepared under section 5 at Serial No.3 deals with 'Maintenance'. The accumulative effect of section 5 read with Schedule and section 9 of the Ordinance (ibid) does not put any restriction on the power of the Judge Family Court in passing a decree for past maintenance. It only empowers the Court to have jurisdiction in matter of ' maintenance' - and does not specify future or past.
18. We are conscious of the fact that section 488 of the Criminal Procedure Code, also empowers the Judge Family Court to order maintenance in case the husband neglects or refuses to maintain his wife or legitimate or illegitimate child. It also prescribe a time limit from which date such maintenance monthly allowance shall be ordered as given in section 488, subsection (2).
19. Section 9 of the Ordinance (ibid) section 5 of the Act (ibid) read with Schedule are provisions of special law whereas section 488, Cr.P.C. Is general law. It is established principle that the general law shall yield in favour of special law.
20. The question of past maintenance arose in case of Syed Mudassar Altaf v. Deputy Commissioner/Collector, Lahore and others (PLD 1993 Lah. 810) where it was held that "a Muslim husband is under a legal obligation to maintain his wife and if she is forced to live away from him for no fault on her part, even then he has to provide maintenance allowance to her". It was also held that as C.P.C. Is not applicable, in proceedings before' the Judge Family Court, hence Article 181 of the Limitation Act will not be relevant but the relevant Article of the Limitation Act would be Article 120 which will entitle the wife to past maintenance to the extent of 6 years and so is the case of a child.
21. In case of Muhammad Akhtar v. Mst. Shazia 'and others (1992 MLD 134) placing reliance on PLD 1972 SC 302, it was held that under section 5 and item 3 of Schedule of West Pakistan Family Courts Act 1964, which is catering for the maintenance does not distinguish the period in terms of past or future and is in consonance with the Injunction of Islam. In support of the view point that a wife is entitled to past maintenance by virtue of section 5 read with section 20 of the Act (ibid) reference can also be made to PLD 1981 Lah. 761.
22. In view of the matter we hold that the Judge Family Court had the jurisdiction and power, under section 5, item 3 of Schedule read with section 20 of West Pakistan Family Courts Act, 1964, and section 9 of Muslim Family Laws Ordinance 1961 to direct the husband to pay past maintenance allowance to the wife and also to the children. To apply the principle of past maintenance to the facts of this case, it has come in the evidence of the plaintiff-respondent, and also her father, coupled with the report made in the daily diary of Police, Station Darband Exh. PW 1 / 1, and more particularly the statement of Faiz A.I defendant's witness who has stated that Mst. Chanwari i.e. Plaintiff-respondent is residing in the house of her father, would negate the assertion of the petitioner that till to date i.e. The date on which the statement was recorded by the trial Court, the wife and the son were living in his house. This being the evidence, we are left with no option, but to accept that, plaintiff/respondent and her son are not living with the petitioner since February 1989 and there is no evidence that they were ever given any maintenance allowance. A reference has been given by the petitioner in his evidence that he has beets sending the expenses to the wife through Noor Rehman and Muhammad Khan shopkeepers, but none has been produced in witness-box. The petitioner defendant having withheld the best evidence, this Court will be right to presume that what was stated by the Husband-petitioner was not correct.
23. Keeping in view the factual position of the case of the parties and the law as has been consistently held by the superior Court of this Country we would dismiss this writ petition as we find no error of facts or law in judgment and decree of the Judge Family Court.
These are our detailed reasons in support of our short order` dated 19-3-1997 whereby the writ petition was dismissed.