1. ZAKAULLAH LODHI, J.--This petition arises out of the following facts The petitioner and the first respondent were married at Quetta about fifteen years back: Subsequently the petitioner left the house of the first respondent on the ground that he had contacted second marriage without her consent.
2. On 23rd May, 1974 the petitioner filed a suit for recovery of maintenance from June, 1970 onwards at the rate of Rs. 150 per month in the Court of the Civil Judge, Quetta who is also vested with' the powers of Judge, Family Court under the West Pakistan Family Court Act, 1964 (hereinafter referred to as the "ACT") who vide order dated 31st May, 1975 decreed the suit granting maintenance as prayed. The first respondent preferred an appeal against this order in the Court of District Judge, Quetta who vide order dated 20th September, 1976 set aside the decision of the Court of the first instance to the extent of past maintenance and allowed maintenance allowance from the date of decree onwards at the above-said rate. The petitioner has now come up to this Court to assail this order through this Constitution petition.
3. Mr. Azizullah Memon, the learned counsel for the petitioner contend--ed that past maintenance could legally be claimed by the petitioner on the ground that it was first respondent's legal obligation flowing from the contract of marriage that he would provide the petitioner maintenance as long as the marriage subsisted and that this obligation being enforceable in law the petitioner's claim had rightly been upheld by the Court of the first instance. To support his contention he placed before us the case of Sardar Mohammad v: Mst. Nasima Bibi and others (PLD 1966 Lab.
2. 703). In this case past maintenance was decreed by an arbitration council constituted under the Conciliation Courts Ordinance and it was held that in view of the language of section 9 of Muslim Family Laws Ordinance of 1961 past maintenance could be granted.
3. It is an undisputed fact that marriage in Islam is not in the nature oft sacrament or a religious rite performed only to invoke grace of God and thus devoid of any temporal meanings and consequences but on the other hand it is a pure and simple contract between a man and a woman legally capable--- of contracting marriage and besides others, one of its incidents is that a duty is cast upon the husband to provide his wife with maintenance according' to his means as long as the marriage subsists. Once a legal obligation has come into existence without any exceptions it is enforceable through Court of law in entirety by virtue of all legal norms recognized in our society. Thus the accumulation of the amount under a legal claim would neither change the nature of the contract nor would it affect the rights and obligations flowing from it to the disadvantage of any rightful party, provided such claim is not hit by the provisions of the Limitation Act. Accordingly to argue that the past maintenance could not be decreed and that only current maintenance could be decreed would amount to adding a condition to a contract which does not legally admit of it. It can therefore be said without any fear of contradiction that the said contract is enforceable with all its force the moment the whole or any part of it is violated and in a case fort maintenance allowance cause of action accrues to a neglected wife on the date when a husband starts so neglecting to maintain her. It is not therefore open to argue that if for some reason a wife approaches the Court with some delay the period that has elapsed uptill her going to the Court would not be counted towards the period for which the maintenance is payable. Such an approach to the issue is neither reasonable nor logical. Mr. Hanafi placed before us Hedayat by Hamilton (1957 Edition) in which on page 142 the learned author has expressed his views on the subject by saying that the past maintenance was not claimable. Discussing the subject he has said in positive terms that the maintenance of wife was a contractual obligation of the husband, but it is surprising to note that in the next breath he says that maintenance of wife was also a gratuitous act. Since an act cannot be both an obligation under law and a gratuitous act the treatment of the subject is obviously with an inconsistent approach. In Principles of Mohammedan Law by Faiz B. Tayabji (Second Edition, page-341, para. 307) it is explained that according to Shiah and Shafi'i law the wife is entitled to maintenance notwithstanding the fact that she has allowed it to get into arrears without havinghad the amount fixed by the Court, or by agreement with the husband, but according to Hunafi law arrears of maintenance are not recoverable by the wife until the Court or husband of the wife fixed the maintenance. In the instant case parties admittedly follow Hanafi school of thought but since all the four recognized Sunni schools of thought t. e.
4. Hanafi, Maliki, Shafi'i and Hambli as well as Shiah school of thought are in agreement on the point that marriage in Islam is a contract, therefore one would be justified in expecting that there should have been complete unanimity upon the incidents flowing from this contract but probably as the main sources of Islamic Law i. e. Holy Qur'an and Sunnah are almost silent about the subject in hand therefore some difference of opinion seems to have occurred in the matter of laying down definite principles on the point and this is just a matter of one's approach to a particular question hence difference of opinion in such a case is not a thing which may be unprecedented or uncommon. However as some Thinkers of Islam do favour the positive view and such view is also consistent with reason, logic and common sense its adoption as a rule in case of such sects which do not strictly follow that school of thought, would not be unjustified, particularly, when there is concensus of the opinion that these are only different schools of thought as far as Islamic jurisprudence is concerned and not different religions so as to prohibit the following of each others' foot-steps in some matters or principles owing to rigidity or staunchness of its followers. Besides this, regard should also be had to the need of times, pattern and structure of the society in which different jurists worked, for, it is an accepted position that the age in which a legal work has been accomp--lished shall necessarily have its imprints on it. In regard to Sunnah as universally accepted source of Islamic Law, I had made a passing remark that it is almost silent about this aspect of the maintenance. However we find one instance quoted in Zaad-ul-Miaad by Hafiz Abdul Qayyum (Vol. IV), page 299. It says that a neglected wife Hinda by name complained to the Holy Prophet (Peace be upon him) that her husband was economically well off yet as he was extremely miser he did not allow adequate food- to her and the Holy Prophet allowed to take away from the foodstuff stored in the house as much as he: genuine needs permitted. Though this incident does not deal with the past maintenance as that was not in question but one thing that comes out crystal clear from this historic episode is factum of emphasi, on a wife's right to be maintained by her husband. So much so that taking of foodstuff without the knowledge or permission of the husband which otherwise amounted to theft according to the norms prevalent in that society as well, was permitted by the Holy Prophet only to avoid hardship to a wife and to provide her with her rightful claim of maintenance. Here we may further add that we have great respect for all, the Muslim Jurists but at the same time we feel that the opinion of such Jurists should find preference which are more akin to reason and precisely that is what we have tried to do while adopting the view of Shafi'i and Shiah school of thought on this topic.
5. Mr. Hanafi next placed reliance on Syed Amir A.I's and D. F. Mullah's Works on Islamic Law. As there authors have also subscribed to the view earlier discussed particular reference and discussion on their view does not seem to be necessary. He has further placed before us Fatawa-e-Kazee Khan relating to Mohamedan Law, Vol. 1, 1977 Edition: In this book on page 277 (para. 1608) it is discussed that the wife was not entitled to mainten--ance according to Hanafi school of thought unless the same had been decreed by the Qazi or fixed by agreement. This view is again a repetition of the earlier view on the point but they are all far from being logical or reasonable.
6. Another aspect of this subject as discussed by the learned author on page 276 .Of this volume will also not be free from interest. It is reproduced below fur reference :---- "The wife demands from the Kazee that he should fix her maintenance against the husband, then if the husband is one with whom many people dine and who has ample food cooked at his place, he shall not fix a maintenance for her, but if the husband is not so, then the Qazi shall fix a monthly maintenance for her (that is, with propriety and decency, or, in other words, without extravagance and excess or niggardliness and stint).
7. Mr. Hanafi last placed before us Fatawa-e-Alamgari, Vol. II (Pakistani Print, page 689). In this work also the jurist's view is that Qazi would not be competent to grant past maintenance. With this and the other views which we have discussed above we record our disagreement for the reasons hereinbefore mentioned. However reverting to the case-law on this point we cannot omit to cite Mohammad Nawaz v. Khurshid Begum and another (PLD 1972 SC 302) which is binding upon us. In this case with regard to section 9 of the Muslim Family Laws Ordinance, 1961 it was held that there was no prohibition for granting past maintenance. In this case the view taken in Sardar Mohammad v. Mst. Nasima Bibi and others referred to above was also considered with approval.
8. Mr. Hanafi tried to distinguish the two cases from the present case on the ground that the forum in which these cases were tried were not the same L e. The family Court. We are not the same i. e. The family Court. We are unable to contribute to this view for the reasons that the only effect of change of forums can be with regard to the procedure which has governed a case but substantive legal principles in all cases remain the same and in the above two cases the view that found favour with their Lordships was that past maintenance could be claimed according to law. We are not only ourselves of the same view but are also bound by the dictum laid down by the Supreme Court.
9. For the reasons given above we allow the petition, and set aside the order of the District Judge, Quetta dated 20th September, 1976 with the result that the order and decree of the Civil Judge and Family Court, Quetta dated 31st May, 1975 would occupy the field. The costs of the' petition are also, awarded to the petitioner.