' This Constitutional petition is directed against the judgment and decree, dated 10-6-1999, passed by the Additional District Judge, Rawalpindi whereby appeal of the respondents Nos.1 and 2 against the judgment and decree passed by the Family Court on 3-4-1999, has been accepted and modifying the decree it has been held that the respondents Nos.1 and 2/plaintiffs are entitled for the maintenance allowance from the petitioner/defendant from 1st of September, 1997 at the rate of Rs,1,500 per month each till the subsistence of marriage of respondent No,1 with the petitioner and in regard to respondent No,2, till his attaining the age of majority.
2. The facts, in brief, are that respondents 1 and 2 instituted a suit for recovery of maintenance allowance against the petitioner before the Judge Family Court at Rawalpindi on 26-10-1997 alleging that respondent/plaintiff No,1 was married with the defendant/petitioner on 17-5-1985 and from this wedlock respondent/plaintiff No: 2, Sohail Anjum minor was born on 15-2-1992 and thereafter serious differences arose between the parties and the defendant/petitioner did not maintain the plaintiffs since December, 1993 till the institution of the suit. The suit was contested by the petitioner/defendant through the written statement, dated 10-1-1998 in which various preliminary objections were raised including preliminary objection No,2 to the effect "that the defendant has divorced plaintiff No,1 and sent a divorce deed to plaintiff No,1 through registered post and after coming to know about this fact of 'Talak' she has filed this suit by concealing the factual position". In preliminary objection No,3 it is alleged "that the defendant has also sent a copy of divorce deed to the Chairman, Reconciliation Council, Union Council, Ghora Gali, Tehsil Murree, District Rawalpindi, through forwarding letter by the council which was received in the council on 3- 101997. However, the staff of the council in league with the plaintiff has not so far started proceedings as per family laws/rules on the said notice". Similarly in preliminary objection No,4 it is narrated "that non-starting of proceedings by the council on the divorce notice sent by defendant does not at all affect the effectiveness of divorce after receipt of notice in the council". On merits, it was contended that after the marriage with plaintiff No,1, he had been providing every facility to the plaintiffs and he also purchased a piece of land and constructed a house on the said piece of land according to the wishes of the plaintiffs and the plaintiffs had been living with him till August, 1997 and thereafter plaintiff No,1 left his house without any justification and as she became intolerable he divorced her through a divorce-deed sent to her through registered post. Out of the pleadings of the parties, the trial Court framed the following issues:--
(1) Whether the plaintiff is entitled to the decree for recovery of maintenance, if so, at what rate and for what period? OPP
(2) Whether the plaintiff's suit is false and frivolous? OPD
(3) Whether the plaintiff has not come in the Court with clean hands? OPD
(4) Whether the Court lacks territorial jurisdiction? OPD
(5) Relief.
3. After the failure of the reconciliation efforts by the Court, the parties were directed to lead their evidence and respondent No,1/the wife appeared as P.W.1 and closed her evidence by producing copy of 'Nikahnama' Exh.P.1. Respondent No,1, as P.W.1, deposed that she was married with the defendant/petitioner in 1985 and respondent No,2, Suhail Anjum (minor son), aged about 6 years, at that time, was born from this wedlock. She further deposed that after the marriage she lived in Rawalpindi in the petitioner's house for 9 years and she did not receive any notice of 'Talaq' and the petitioner has failed to maintain her and the child for the last 4-1/2 years and that at the moment, she was living in Rawalpindi and the petitioner/defendant is employed in Saudi Arabia and earns Rs,15,000 per month and can easily pay maintenance allowance of Rs,3,000 per month to the plaintiff. She also asked for the previous maintenance allowance and the future maintenance allowance at the same rate. In cross-examination she admitted that Moazzam Bibi (the mother of the petitioner/defendant) has instituted a suit against her in regard to the house and she denied having given any written statement in the said suit. She agains said that she has given the written statement but denied the suggestions that in the written statement she has admitted that petitioner has divorced her, that she has deliberately told a lie, that because of her attitude the defendant has sent notice of 'Talaq' to her and to the Union Council. She further stated that she does not know that she stands divorced, that nowadays she is living with her paternal uncle in Dhok Hassoo, that she does not know house number, that she is illiterate, that uncle's name is Maskin, that at the time of marriage defendant did not have a house in Rawalpindi, that after marriage she lived in the village for one year, that the village is situated in District Hazara and the defendant did not own any house in the village, that in the village she had been living in the house of defendant's brother belonging to defendant's father and grandfather, that defendant built the house in Rawalpindi in 1991, that defendant has not paid any maintenance allowance for the last 4- 1/2 years, that she was turned out 5-1/2 months ago from the defendant's/petitioner's house in Dhok Hassoo, that the defendant had stopped paying the maintenance allowance 3 years prior to the period when she was turned out from the house, that she tried to live as wife and did not file any maintenance suit, that she used to stitch clothes, that the petitioner has obtained a stay order of the house and, therefore, she has now filed the present suit. She further denied the suggestions that she on her own in August, 1997 left the house, that in spite of petitioner's efforts she did not come back, that because of this attitude the defendant has divorced her and said that she did not have any proof of the petitioner's income, and denied the suggestions that the defendant's income is not Rs,15,000 per month and that because of 'Talaq' she has filed this false suit.
4. In rebuttal the defendant/petitioner produced two witnesses. D.W.1, Babar Sultan, Secretary, Union Council, Ghora Gali, stated that on 3-10-1997 Union Council received divorce deed from the petitioner whereby the plaintiff Mst. Safia Bibi was given 'Talaq' and Talaq-deed contained signatures of petitioner, Muhammad Zairaf, which was sent back by him through letter (Exh.D-1). In cross-examination, he further stated that on the receipt of Talaq-Deed the same was presented before the Administrator of Union Council who objected that since Talaq Deed has been received from Saudi Arabia but it was not verified from the Pakistani Consulate in Saudi Arabia and, therefore, it was sent back. He admitted that Union Council did not issue any notice of 'Talaq' to the plaintiff Mst. Safia Bibi and Talaq certificate has also not been issued. D.W.2 Mulazim Hussain, the special attorney of the petitioner/defendant stated that the parties were married on 17th May, 1985 in the village. In 1989, the petitioner Zairaf purchased a piece of land in Dhoke Hassoo in his own name and two years thereafter he constructed a house and the parties shifted in this house alongwith the petitioner's mother. Plaintiff lived in the said house till August, 1997 and till then the defendant kept on paying the maintenance allowance and thereafter, the plaintiff left the house alongwith her jewellery and clothes, without informing her mother-in-law and as the reconciliation efforts failed the petitioner, Zairaf, divorced her and the Divorce-Deed was sent to Union Council, Ghora Gali, which was sent back to the defendant in Saudi Arabia by the Union Council due to its collusion with the plaintiff. In cross-examination, he admitted that the defendant's sister is married to him and the defendant is out of country for more than four years and during this period he used to send maintenance allowance to his mother as she was responsible for running the house. This witness also produced copy of special power of attorney as Exh.D-2. The defendant/petitioner closed his evidence by producing copy of written statement Exh.D.3 which was filed by the respondent/plaintiff in the civil suit titled "Mst. Moazzam Bibi v. Irshad etc.", a suit for permenent and mandatory injunction instituted by the petitioner's mother against the present plaintiff and others.
It may be mentioned here that in para. 2 of the written statement, the respondent/plaintiff admits the fact of having been divorced by the petitioner and in fact she has taken a stand that she was divorced without any justification.
5. The trial Court after recording the evidence and after hearing the learned counsel for the parties found that the plaintiffs written statement in the abovementioned suit filed by her on 23-10-1997 in the Civil Court (Exh.D.3) shows that she knew that she had been divorced from the petitioner. The trial Court also found that the fact of divorce is also supported by the statement of D.W.1 who admitted that the Divorce-Deed was received by the Union Council and as the same had not been withdrawn by the petitioner within the stipulated period, the 'Talaq' became effective irrespective of the fact whether it was attested by the competent Authority in Saudi Arabia or not. The trial Court thus, concluded that the plaintiff No,1/respondent No,1 is not entitled to get any maintenance from the defendant except for the period of 'Iddat'. The minor child was, however, held to be entitled to maintenance allowance from the petitioner, at the rate of Rs,500 per month, from the date of institution of the suit. The suit was accordingly decreed vide judgment and decree, dated 3-4-1999.
6. The respondents Nos.1 and 2 plaintiff preferred an appal and the Additional District Judge, Rawalpindi, vide his judgment and decree, dated 10-6-1999, not only enhanced the quantum of maintenance in favour of respondent No,2/minor child from Rs,500 per month to Rs,1,500 per month but also set aside the finding of Judge Family Court that the divorce had become effective and awarded maintenance to respondent No, 1 from 1-9-1997, at the rate of Rs,1,500 per month till the subsistence of marriage.
7. I have heard the learned counsel for the parties and have also seen the record.
8. It is contended by the learned counsel for the petitioner that the evidence brought on the record has fully established that respondent No,1, Mst. Safia Bibi, stood divorced from the petitioner on 3- 10-1997 when the notice of 'Talaq' (Exh.D.l) was received in the Union Council and simultaneously the notice of 'Talaq' and Talaq-Deed were also sent to respondent No,1 who has concealed this material fact and her misrepresentation and lie has been established through her written statement (Exh.D.3), dated 23-10-1997 in which she has herself admitted that she has been divorced by the petitioner and this written statement was filed by her on 23-10-1997 in another civil suit one day prior to the institution of the present maintenance suit by her on 24-10-1997 and these facts prove that she had already been divorced by the petitioner prior to the institution of the maintenance suit, hence, she is not entitled to any maintenance allowance from the petitioner and the finding of the trial Court in this regard is correct while the conclusion of the Appellate Court in this regard is contrary to the evidence, illegal and perverse. It has also been argued that the sending of the notice of 'Talaq' by the Union Council back to the petitioner in Saudi Arabia is inconsequential and the same cannot amount to holding that no 'Talaq' was pronounced and even the provisions of section 7 of the Muslim Family Laws Ordinance; 1961 were fully complied with by sending notices to the wife as well as to the Union Council alongwith Divorce-Deed and the copies thereof and the 'Talaq' has never been withdrawn by the petitioner which became effective after the expiry of the period of 'Iddat' of 90 days and the trial Court has correctly awarded maintenance allowance to the respondent No, only for the period of 'Iddat' and not thereafter and there is no law which says that if the Talaq-Deed is not duly verified by the Pakistani Consulate in a foreign country, it will be deemed that the 'Talaq' has not been pronounced. Reliance has also been placed on Mst. Fahmida Bibi v. Mukhtar Ahmad and another (PLD 1972 Lah. 694), Allah Dad v.
Mukhtar and another (1992 SCMR 1273) . And Muhammad Rafiq v. Ahmad Yar and another (PLD 1982 Lah. 825).
9. It may also be mentioned here that the learned counsel for the petitioner has not challenged the decision of the Appellate Court to the extent whereby the rate of maintenance allowance awarded to the minor child by the Family Court from Rs,500 per month has been enhanced to Rs,1,500 per month.
10. Learned counsel for the respondents/plaintiffs, on the other hand, while vehemently opposing this petition has submitted that the respondent No,1/plaintiff as P.W.1 has categorically stated that she has not received any notice of 'Talaq' and similarly the Union Council also did not send her any notice and, therefore, no divorce has taken place between the parties and she is still wife of the petitioner and as such she is entitled to the maintenance allowance from the petitioner and the Appellate Court has correctly given a decision in her favour in this regard. Learned counsel for the respondents has placed his reliance on Dr. Masood Khan v. Chairman, Arbitration Council, Wah and 2 others (PLD 1982 Lah. 532), Mst. Basra v. Abdul Hakim and 2 others (PLD 1986 Quetta 298) and Ahmad Riaz v. Mst. Qaiser Minhas and others (1994 CLC 2403).
11. Mst. Safia Bibi/respondent No, 1/plaintiff No,1 in her suit for maintenance allowance has claimed maintenance in her capacity as wife of the petitioner and she has not said anything about having been divorced from the petitioner. The suit was instituted before the Judge Family Court on 24-10- 1997. On the other hand, the written statement (Exh.D.3) filed by her in a suit for permanent and mandatory injunction instituted by the petitioner's mother in regard to the petitioner's house, she admits that she has been divorced by the petitioner. This written statement was filed by her in the Civil Court on 23-10-1997 i,e, a day prior to the institution of her maintenance suit. This shows that even prior to the institution of the maintenance suit she treated herself to be a divorcee and this is so because she had already received the notice of 'Talaq' and Talaq-Deed from the petitioner as has been argued by the learned counsel for the petitioner and the same was simultaneously sent by the petitioner in the Office of Union Council, Ghora Gali, which was received in the said office on 3-10-1997, as per statement of Babar Sultan, D.W.1 and as per letter Exh.P.1. These facts clearly establish that the petitioner had divorced respondent No,1 prior to the institution of the maintenance suit and as the 'Talaq' had never been withdrawn by the petitioner, therefore, the same became effective on the expiry of period of 'Iddat' and the sending of notice of 'Talaq' back to the petitioner in Saudi Arabia by the Union Council, Ghora Gali is inconsequential because the same cannot amount to withdrawal of the 'Talaq' by the petitioner and the arguments of the learned counsel for the respondents in this regard have no force. The findings of the Family Court in this regard are upheld and the writ peiition is partly accepted and it is held that respondent No,1, Mst. Safia Bibi, is entitled to maintenance allowance for the period of 'Iddat' of three months only, at the rate of Rs,1,500 per month, as fixed by the Appellate Court and the maintenance allowance granted to respondent No,2, the minor child by the Appellate Court, at the rate-of Rs,1,500, per month, from 1st of September, 1997 till he attains the age of majority is upheld and maintained. The modified decree shall be accordingly prepared by the Family Court. There is, however, no order as to costs.