' The instant writ petition is filed under Article 199 of the Constitution of Pakistan, 1973 read with section 115, C.P.C. For setting aside the judgment and decree dated 17-6-1993 passed by the respondent No,2 with .The prayer to quash the order, dated 22-9-1996 passed by the District Collector, Lahore and remand the case for deciding the same afresh by an educated Councillor according to law.
2. As far as the revisional power of this Court is concerned the High Court does not enjoy and supervisory jurisdiction under section 115, C.P.C. As the provision of the Civil Procedure Code does not apply to the proceedings of the Family Courts Act and section 17 are specific bar. This case is only heard on the Constitutional side.
3. The grievance of the petitioner is that the respondent No,1 filed an application before the learned Chairman, Arbitration Council, Halqa No,64, Lahore on 8-9-1992 relating to the demand of maintenance allowance for the past 1-1/2 years and the future maintenance allowance. This application was contested by the petitioner/respondent before the learned Chairman, Arbitration Council and the learned Arbitration Council decreed the application of the respondent/plaintiff in the sum of Rs,5,000 per month from 31-12-1989 to 31-12-1992 to the tune of Rs,1,80,000. The petitioner filed a revision petition before the District Collector, which was dismissed on the point of limitation vide order, dated 22-9-1996. Now both the orders are assailed in this writ petition.
4. The argument advanced by the learned counsel for the petitioner is that the learned Chairman, Arbitration Council being an uneducated and illiterate person could not decide the petition for maintenance allowance in its true perspective. He has relied on Mst. Sharifan Bibi v. The Chairman, Union Council Ram Thuman and 2 others PLD 1994 Lah.
20. He further submitted that the petitioner admitted during the cross-examination that she had demanded Khula' and if the Khula' is demanded then the wife is not entitled even to maintenance.
He has relied on Dr. Akhlaq Ahmad v. Mst. Kishwar Sultana and others PLD 1983 SC 169, where Khula' is a civil liability with regard to benefits derived from the husband which must be returned to the husband. He relied on Muhabbat Hussain v. Mst. Naseem Akhtar and others 1992 MLD 1294, Mst.
Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 and Parveen Akhtar v. Muhammad Afzal and another 1987 CLC 1668, where it is held that if the wife demands Khula' then she can claim nothing from the husband. He further submitted that the petitioner was under no obligation to maintain respondent No,1 who left the house of the petitioner with her own free-will when no one had tortured- her. The allegation levelled against the petitioner remains unproved and that the respondent demanded maintenance for 1-1/2 years while the learned Chairman, Arbitration Council granted her maintenance from 31-12-1989 to 31-12-1992 which is unwarranted by law.
Therefore, the impugned order and the order in revision be set aside being not sustainable in the eyes of law as it is a void order and the limitation does not run against a void order. He has relied on Muhammad Faryad v. Muhammad Asif PLD 1993 Lah. 469, Brig. (Retd.) Mazharul Haq and another v. Messrs Muslim Commercial Bank Ltd., Islamabad and another PLD 1993 Lah.
706.
5. The learned counsel for the respondent submits that the judgment and decree passed by the learned Chairman, Arbitration Council is dated 17-6-1993 and by the Revisional Court of the District Collector, Lahore is dated 22-9-1996 while the writ petition is filed on 2-7-1997. In this way the first revision petition was filed with a delay of 1 year 7 months and 6 days which was dismissed being time-barred and the instant writ petition suffers from latches of 10 months for which no explanation is given by the petitioner. On this score this writ petition is liable to be dismissed. He has relied on Muhammad Saleem v. Zeba Abdul Hameed and 2 others 1995 MLD 988, Muhammad Ashraf v. Mst.
Bushra Shaheen and others 1994 Law Notes (Lahore) 1153, Muhammad Javed Akhtar v. Collector and others 1991 CLC 1356, Muhammad Khalid v. Shamsa Taskeen and others 1989 ALD 389(1) and Tayyab Khan v. Nadia Khan 2000 CLC 558. He further submitted that it is proved on record that the petitioner was not given prompt dower to, which she was entitled and till she is given dower she is entitled to maintenance. He has relied on Nurud-Din Ahmad v. Masuda Khanam PLD 1957 Dacca 242, Mst. Muhammadi v. Jamil-ud-Din PLD 1960 (W.P.) Kar. 663, where it is held that the wife is entitled to maintenance allowance till her dower is not paid. The second material aspect which is proved on record, is that separation and divorce between the parties was through Muharat. When there is mutual separation then the wife is entitled to 50% benefits. Both the spouses have married and so far as the quantum of maintenance is concerned the petitioner has nowhere rebutted the quantum of maintenance. Therefore, the instant writ petition- is liable to be dismissed.
7. I have heard the learned counsel for the parties and have perused the record. .8. The fespondent No,1 filed an application before the learned Chairman, Arbitration Council that she has been expelled from the house of her husband 1-1/2 years prior to the filing of the application. Her ornaments and articles of dowry are with her husband. She be given the Haq-ul- Mehr of Rs,20,000 and be allowed the maintenance allowance of Rs,12,000 per month. She also admitted in her application that after the wedlock there are three children who are being brought up by her husband. This application was filed on 8-9-1992. An Arbitration Council was constituted.
The respondent No,1 stated that she will conduct her own case and the petitioner appointed his representative Mian Abdul Waheed son of Abdul Majeed.
' The respondent No,1 appeared as her own witness and she stated on oath that she was married with the petitioner. She had a dispute with her husband 1-1/2 years before and she had left the house and since then she is living in separation. Her dowry articles and Haq-ul-Mehr are still to be paid by her husband. The income of the petitioner is Rs,30,000 and she be given Rs,12,000 per month as maintenance allowance. On question by the petitioner she admitted that she went of her own free-will from the house of her husband because the family circumstances were so critical that spouses could not live together. She explained the critical circumstances as the outcome of quarrelling between the parties. On a question that while going from the house she wrote a letter to her husband that she will not take Haq-ul-Mehr nor take anything from the children's property. She replied that she demanded Khula' in lieu of Haqul-Mehr and that she will not take anything from the property. On a question put by the respondent, the petitioner replied that after December, 1991 he did not spend anything on the respondent No,1 and that during that period did he maintain her, the petitioner replied in affirmative that he had not maintained her because she went on her own accord from the husband and she gave him in writing that she is taking divorce and she will not claim maintenance. On a question by the petitioner that whether she is ready for Khula' Mubarat, the respondent No,1 replied that if he has a desire she is ready.
' The petitioner appeared as his own witness and stated on oath that during the wedlock they had three children who are in the custody of the petitioner and the respondent No,1 left the house of her husband since 6-9-1991 and showed her desire that she wants separation and wants to go to her mother's house. The petitioner gave her 2/3 days' time to think and then out of the mutual decision she left the house and then later on her two sisters and one brother came and said that despite their efforts there is no possibility of reconciliation, therefore, he should divorce her. Afterwards the respondent went to the house of some fatherly friend and the petitioner went there and brought her back to his house. She. Stayed for 15/20 days and while going away again she wrote a letter and went away and from that time she is living separately. The divorce is in the process.
9. The learned Chairman, Arbitration Council, vide his judgment and decree, dated 17-6-1993 observed that the respondent No,1 deserves for the maintenance allowance, therefore, he fixed the maintenance allowance as Rs,5,000 per month and granted maintenance allowance from 31-12- 1989 to 1-12-1992. This judgment was assailed in revision but the revision petition was dismissed on the technical point of limitation. Hence this petition.
10. So far as the first question whether the learned Chairman, Arbitration Council has granted decree beyond prayer of the petitioner is concerned, it is obvious on the record that the respondent No, 1 demanded maintenance allowance for 1-1/2 years prior to giving the application for maintenance allowance before the learned Chairman, Arbitration Council and the learned Chairman, Arbitration Council had no authority in Law to grant maintenance allowance beyond that period. It is also admitted between the parties that the divorce had taken place between the spouses. On 6-3-1993 it had become effective. The second facturn which is absent on record is reasonable and cogent proof of the income of the petitioner who is admittedly retired from service in the year 1982 and it is also admitted between the parties that all the three children were brought up by the petitioner and they remained in the custody of the petitioner and also that for sometimes the financial position of the petitioner was critical and the spouses had to sell some jeweler. The respondent No,1 is remarried vide a registered marriage on 9-7-1993 and the petitioner has also remarried. While determining the quantum of maintenance no proof was given by the respondent No,1 or by the petitioner himself about his income. The learned Chairman, Arbitration Council did not take pain to ask the parties or determine the means of the parties and then fix maintenance allowance, therefore, this is a glaring legal error apparent in the impugned judgment and this Court being the Court of equity and natural justice has to take note of illegalities committed by the Tribunal below and rectify them beyond technicalities.
11. Now the question which is to be determined by the Court is whether the respondent No,1 who is living separately has a reason to live away from her husband and demand the maintenance allowance. It is admitted between the parties that the divorce took place due to the mutual consent of the parties that was Khula' Mubarat. It is also settled proposition of law that if it is proved on record that the husband has refused to pay prompt dower after demand by wife she is justified to live separately. In Mst. Muhammadi v. Jamil-ud-Din PLD 1960 (W.P.) Kar. 663 it is held that where one of the reasons, why the wife stayed away from her husband, and lived with her parents, was that her prompt dower had not been paid, the husband was bound to maintain the wife at her parents' house, and failure of the husband, continued for two years before suit, entitled the wife to a decree for dissolution of marriage.
12. It is always incumbent upon the husband to maintain his wife and he is not absolved of his liability to maintain her even though she be not residing with him provided she has a lawful excuse or a legal right to refuse to live with her husband on account of non-payment of prompt dower.
Nur-ud-Din Ahmad v. Masuda Khanum PLD 1957 Dacca 242 it is held that the dissolution of Muslim Marriages Act (VIII of 1939) nonpayment simpliciter of maintenance does not constitute failure or neglect within meaning of section 2(ii). Even refusal to pay the prompt dower can be inferred from conduct as the prompt dower may be considered a debt always due and demandable, and payable upon demand, and, therefore, upon a clear and unambiguous demand and refusal a cause of action would accrue. In Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC 456 the Honourable Supreme Court held that there is a difference between Khula' and Mubaraat is that in the former the aversion is on the side of the wife and she desires a separation but in the latter the aversion is mutual and both sides desire separation. Secondly, in a divorce by Khula' some consideration must be given by the wife to the husband for her release from the marital tie. It is in effect an offer from the wife for her release on payment of compensation and when the wife who sought severance of the marital tie and not the husband and, therefore, in the circumstances the divorce ultimately agreed upon the parties was only a Mubaraat and not Khula'. Then the respondent is entitled for the half of the benefits. In the present case there was a mutual decision by the parties and divorce took place and it is also established that the respondent had not paid the prompt dower. The circumstances show that the dower was left by the respondent in lieu of Khula' Mubaraat but she is entitled for maintenance for the period she was in the wedlock of her husband but the quantum of maintenance was determined without any proof of the income of the petitioner, therefore, the judgment and decree passed by the learned Chairman. Arbitration Council is modified from Rs,5,000 to Rs,2,000 and it is granted from 7-3-1991 which is the period 1- 1/2 years prior to the filing of the application till the divorce had become effective.
13. With this observation the writ petition is partly accepted.