' This is an old case pertaining to 1993. Brief facts giving rise to this Constitutional petition are that the petitioner, Mst. Shamim Akhtar was married to Muhammad Tufail, respondent No,1 on 12-6-1981.
Respondent No,1 had contracted this marriage during the subsistence of his previous marriage, therefore, the petitioner was second wife of respondent No,
1. According to the petitioner, respondent No,1 had agreed at the time of marriage to provide a separate abode for the petitioner but he failed to do so. There are two children from the wedlock, a daughter born on 26-12-1983 and a son born on 1-1-1985. In 1984, respondent No,1 statedly threw the petitioner out from his house alongwith her minor children. The petitioner, filed an application 'for maintenance before the Chairman Arbitration Council, Ward No,81, Samanabad, Lahore on 25-6-1990. Respondent No,1 appeared in response to notice but thereafter, he absented himself and a decree was passed on 4-9-1990, by the Chairman Arbitration Council, whereby, respondent No,1 was directed to pay the maintenance in the amount of Rs,1,500 per month from 11-8-1984 to 4-9-1990.
2. Respondent No,1 filed a Revision Petition before respondent No,2, D.G./Collector, Lahore on 3-11- 1990 which was accepted by respondent No,2, vide order dated 25-3-1991, and the case was remanded to the Chairman, Arbitration Council to decide the case afresh keeping in mind that respondent No,1 had divorced the petitioner on 25-9-1982 according to Talaq Certificate which had been produced by respondent No,1 alongwith his revision petition and the matter was to be decided within six weeks.
3. The petitioner challenged the authenticity of Talaq Certificate before the Chairman, Arbitration Council and the Chairman, Arbitration Council after re-hearing the parties sent a letter to the Chairman, Union Council Chak No,23, Bhopiwal, District Kasur, asking him to verify the authenticity of Talaq Certificate produced by respondent No,
1. The Chairman replied on 25-4-1991 that the aforementioned Talaq Certificate was not issued by Union Council Bhopiwal and the same was not found entered in their record. The Chairman, Arbitration Council, Ward No,81, Lahore passed a detailed order on 28-5-1991, granting maintenance to the petitioner from 26-6-1987 to 25-6-1990, at Rs,1,500 per month and from 26-6-1990 to 27-6-1991 at Rs,2,000 per month. The Chairman held that the Certificate of Talaq produced by respondent No,1 was forged document.
4. Respondent No,1 filed revision petition against this order before respondent No,2, who accepted the revision petition vide order dated 4-11-1991, with the observations that the present petitioner had throughout been living in village Bhopiwal, where she had been teaching as Primary School Teacher and her I.D. Card also contained the same address while her name was also appearing in the Voters' List of village Bhopiwal, therefore, the order of Chairman Arbitration Council, Ward No,81, Lahore, was without jurisdiction and since the petitioner had already been divorced on 29-9-1982, she was even otherwise not entitled to any maintenance allowance and the application was filed on 25-6-1990, when the marriage had come to an end long ago. Respondent No,2 held that Arbitration Council cannot entertain an application for grant of maintenance after the marriage has come to an end and therefore, the petitioner was held disentitled to any maintenance allowance whatsoever.
5. The petitioner, being aggrieved of this order of respondent No,2, has assailed the same through this Constitutional petition. Learned counsel for the petitioner has argued that respondent No,1 had filed a time-barred revision petition against the order of Chairman, Arbitration Council dated 25-6- 1990, and this petition was illegally accepted by respondent No,2 and the case was remanded to the Chairman, Arbitration Council, Ward No,81, Lahore, for deciding the case afresh in the light of divorce certificate produced by respondent No,
1. He further argued that the Chairman, Arbitration Council had on enquiry discovered that divorce certificate was forged and respondent No,2 had completely ignored this finding of the Chairman while holding that the petitioner had been divorced by respondent No,1 in 1982; that birth certificates of Hamid Raza and Saadia were placed on the record of the Chairman, Arbitration Council, which show that they were born on 10-1-1985 and 26-12-1983, respectively. These certificates were not rebutted by respondent No,1, which clearly shows that respondent No,2 has passed an illegal order since even from birth certificates, it is demonstrated that the petitioner was the wife of respondent No,1 and these two children were born from the wedlock. The Chairman, Arbitration Council had written a detailed order after hearing both the parties. And had also referred to their witnesses and the documentary evidence produced by both the parties, which were nowhere alluded by respondent No,2. Therefore, the judgment of respondent No,2 may be declared without lawful Authority and of no legal effect. Learned counsel for the petitioner also pointed out that I.D. Card of the petitioner was prepared in 1978, at which time she was residing in Bhopiwal. He further argued that F.I.R. No,189 of 1982 had been got registered by the petitioner against respondent No,1 for forgery in respect of Talaq Certificate, on which he had been convicted and sentenced to 4 years' imprisonment.
6. Learned counsel for respondent No,1 has argued that this writ petition is not maintainable since the petitioner had also filed Writ Petition No,1119 of 1992, which had been dismissed for non- prosecution on 27-4-1992, and the application for restoration was also dismissed for non- prosecution on 16-11-1992. He further argued that the order of respondent No,2 was valid and based on correct appreciation of facts and therefore, the petition should be dismissed.
7. Learned counsel for respondent No,1 has relied on the case-law cited as Mst. Rabia Bibi and others v. Fateh Muhammad (1994 CLC 1151), wherein, it has been held that the previous Constitutional petition having been dismissed by the High Court, a fresh suit filed by the same party was barred by principle of res judicata. He also relied on the case titled Qazi Zaheer-ud-Din v.
Additional District Judge, Lahore (1995 MLD 1241). Learned counsel has argued that the second writ petition has been filed after unusual delay of almost one year when first writ petition was dismissed for non-prosecution, therefore, it was barred by laches.
8. Learned counsel for the petitioner in rebuttal has relied on the case titled Dr. M. A. Haseeb Khan and others v. Sikandar Shaheen and others (PLD 1980 SC .139), wherein it has been held by the Supreme Court that when the first writ petition was not decided on merits but was dismissed for non-prosecution, for such reason alone bar could not be placed for filing a fresh writ petition.
9. I have heard the learned counsel for the parties and I have also gone through voluminous record with their able assistance.
10. First of all, I deal with the preliminary objection of respondent No,1 that second Constitutional petition is not maintainable after the first constitutional writ petition is dismissed for non- prosecution and that it would be barred on principle of res judicata. In the judgment cited by learned counsel for the petitioner titled Dr. M. A. Haseeb Khan and others v. Sikandar Shaheen etc. (PLD 1980 SC 139), it has been held that when the first writ petition was not decided on merits, but was dismissed for non-prosecution it would not constitute .a bar for filing of fresh writ petition, therefore, it is held that this writ petition is maintainable. Regarding the question of laches, first writ petition had been filed by the petitioner immediately after the revision petition of respondent No,'1 had been accepted and the second writ petition was filed as soon as the petitioner came to know that her first writ petition was dismissed for non-prosecution, therefore, writ petition is not barred by laches.
11. First application of the petitioner before Chairman, Arbitration Council had been decreed on 4- 9-1990, against which respondent No,1 had filed revision petition on 3-11-1990, which was time- barred- by almost one month and revision petition was accepted by respondent No,2, vide order dated 25-3-1991, without taking into consideration that it was barred by time and the case was remanded to Chairman, Arbitration Council for fresh decision on the points issues like, actual residence of the present petitioner, subsistence of marriage beyond 25-9-1982 and the quantum of monthly allowance, if any, to which the respondent is liable.
12. The Chairman, Arbitration Council, Ward No,81, Samanabad, Lahore sent certificate of divorce to the Chairman, Union Council, Bhopiwal for verification, on which he was informed that certificate was forged. Both the parties adduced their evidence and various documents and after scrutinizing all these documents Chairman, Arbitration Council held that divorce certificate dated 29-9-1982, is forged. He also held that the petitioner and respondent No,1 had gone for 'Haj' together after the date of forged certificate, which also led to support of petitioner's assertion that she had not been divorced by respondent No,
1. After the date of alleged divorce, the birth certificates of the children were also held to negate the validity of the divorce certificate. The Chairman, Arbitration Council held that the past maintenance could be awarded under section 9 of Muslims Family Laws Ordinance to a wife who had been divorced and the petitioner was held entitled maintenance in the amount of Rs,1,500 per month from 26-6-1987 to 25-6-1990, amounting to Rs,54,000 i,e, period of three years prior to the first application of the maintenance. The petitioner was also held entitled to the maintenance from 26-6-1990 uptill the date of passing of the order i,e, 27-6-1991, in the amount of Rs,2,000 per month, amounting to Rs,22,000. Thus, total amount of maintenance decreed in favour of the petitioner was Rs,76,000. The petitioner was advised to approach the Family Court for maintenance of the minors. This decree was set aside by respondent No,2 with the observations that divorce had attained finality on 29-9-1982 and that Arbitration Council was not empowered to entertain any application for maintenance after marriage has come to an end.
13. The certificate of divorce produced by respondent No,1 according to which divorce had attained finality in 1982, was held to be forged document not only by the Chairman, Arbitration Council, Lahore but also by the Criminal Court and appeal of respondent No,1 was also dismissed.
Consequently, he had been convicted and sentenced to imprisonment for 4 years and he had also undergone this sentence, which further supports the fact that the petitioner was not divorced in 1982. Therefore, the period of maintenance had been correctly calculated by the Chairman, Arbitration Council, Lahore. Furthermore, the observations of respondent No,2 that the Chairman, Arbitration Council cannot entertain an application for maintenance by a wife, who had already been divorced, is not valid. It has been held in the cases cited as Ghulam Jilani v. Deputy Commissioner/Collector and others (1991 CLC 1813), Muhammad Najeeb v. Mst. Tallat Shahnaz (1989 SCMR 119) and Muhammad Nawaz v. Khurshid Begum and others (PLD 1972 SC 302) that past maintenance can be awarded by the Arbitration Council for a period up to six years and that the wife, who has been divorced by husband, is also entitled to, claim maintenance through application to Chairman, Arbitration Council. Reference is also made to Muhammad Ashraf .
Bushra Shaheen and others (PLD 1995 Lahore 44) and Ahmed Riaz v. Mst. Qaisera Minhas and others (1994 CLC 2403). Therefore, Chairman, Arbitration Council has jurisdiction to decide the application of an ex-wife for grant of maintenance for the period during which marriage subsisted.
14. In this particular case, respondent No,1 has not even been able to show that petitioner was divorced at the time when she filed application for maintenance, therefore, the impugned order of respondent No,2 is illegal to the extent that Arbitration Council had no jurisdiction to award maintenance to the petitioner. As. Regard period of maintenance, according to the petitioner, respondent No,1 ousted her from his house in the year 1984, while date of birth of younger minor is 10-1-1985. Arbitration Council has awarded the maintenance from 26-6-1987 i,e, w,e,f, three years before filing of application on the ground that he could not award the past maintenance beyond the period of three years. This observation of the Chairman, Arbitration Council is not in accordance with law. As mentioned above, Arbitration Council. Can award past maintenance up to 6 years under Article 120 of the Limitation Act. However, the petitioner herself has not assailed the order of the Chairman, Arbitration Council in this behalf. Therefore, it is held that she is entitled to maintenance w,e,f, 26-6-1987 to 27-6-1991, as ordered by the Chairman, Arbitration Council. It is also held that it is in the competence of the Chairman, Arbitration Council to award different quantum of maintenance for different periods. Reference can be made in this behalf to judgment cited as Muhammad Nawaz v. Khurshid Begum and others (PLD 1972 SC 302).
15. In view 'of above discussion, this writ petition is accepted. The petitioner is held entitled to receive maintenance from respondent No,1 w,e,f, 26-6-1987 to 27-6-1991, in the total amount of Rs,76,000 as held by Chairman, Arbitration Council in his order, dated 27-6-1991. Since the conduct of respondent No,1 throughout the litigation has not been above board, the writ petition is accepted with costs throughout.