' The brief facts giving rise to this Constitutional petition are that the petitioner, Jaffar Ali, was married to respondent No,4, Mst. Azra Parveen on 13-2-1987; but after some time differences developed between the parties and they separated. Thereafter, respondent No,4 filed an application before the Chairman, Arbitration Council. Ward No,11, Gujranwala for recovery of maintenance against the petitioner, which was decided in her favor on 22-1-1993 and the petitioner was directed to pay maintenance to respondent No,4 @ Rs,1,500 per month, total amount coming to Rs,56,000. Revision petition filed by the petitioner was dismissed on 12-4-1994 and his writ petition was also dismissed by this Court on 5-10-1994.
2. In the meanwhile, respondent No,4 filed a suit for dissolution of marriage against the petitioner on 8-6-1991 before the learned Judge Family Court, Gujranwala, which was decreed in her favor on 24-10-1992. The dissolution was granted on the basis of Khula' and respondent No,4 was directed to return 4-1/2 Tolas gold ornaments or Rs,14,000 as consideration for Khula. On 11-7-1994 the petitioner filed Writ Petition No,7818 of 1994 praying that respondent No,4 be summoned in order to ascertain whether she had changed her mind and since respondent No,4 had been directed to pay Rs,14,000 as consideration of Khula' the Khula' would not be effective till such amount had been paid. This petition was dismissed as not pressed or. 1-7-1998.
3. On 8-9-1997 respondent No,4 filed an application before the D.C./Collector, Gujranwala for issuance of a decree in the amount of Rs,82,500 as outstanding maintenance allowance as ordered by the respondent No, 2 on 22-1-1993. In this application respondent No,4 took the stand that the Arbitration Council had awarded her Rs,56,000 as maintenance allowance till 12-1-1993; since she remained me wedded wife of the petitioner even after the said she was divorced by him and that total maintenance allowance came to Rs,82,500 up to 8-9-1997. Out of this amount respondent No,4 admitted that she had received Rs,18,667 through the Lahore High Court and she sought recovery of the balance amount. The -application of respondent No,4 was decided in her favor ex parte on 11-11-1997 and the petitioner filed an application on 8-10-1998 for re-call of the order dated 11-11-1997 which was dismissed by respondent No,1 vide order dated 26-1-2000.
Thereafter, respondent No,4 filed execution proceedings for recovery of fresh decretal amount, amounting to Rs,1,25,333, according to which the petitioner was served with the demand notice on 8-6-2000 by respondent No,3, Tehsildar/Collector, Pasrur. The petitioner being aggrieved by the order of respondent No,1 dated 26-1-2000 and the demand notice dated 8-6-2000 has assailed the same through this ConstitutiOnal petition.
4. Learned counsel for the petitioner has argued that the original maintenance decree in favor of respondent No,4 was Rs,56,000 only and, that thereafter respondent No,4 had obtained Khula' decree vide judgment dated 24-10-1992 from the learned Judge Family Court, Gujranwala and accordingly, at best, she was entitled to maintenance up to the said date plus three months of Iddat' period and she had already been awarded maintenance till 22-1-1993, therefore, she was not entitled to any additional decree of maintenance, nor could the same be recovered through execution proceedings against the petitioner, as such, the impugned order of respondent No,1 as well as the demand notice of respondent No,3 for an amount of Rs,1,25,333 are without lawful authority. Learned counsel has next argued that out of the aforesaid decretal amount of Rs,56,000, which had been declared to be the liability of the petitioner by the Honourable High Court vide order dated 5-10-1994 in Writ Petition No,5270 of 1994, the petitioner had already deposited Rs,18,667 before the High Court in the aforesaid writ petition. Thereafter, he had deposited Rs,18,000 on 20-7-2000 in compliance of the order of this Honourable Court in the present writ petition, total amount coming to Rs,36,667 to which Rs,14,000 should be added being the amount that respondent No,4 was liable to pay to the petitioner in consideration of Khula', the total amount paid by him comes to Rs,50,667 and if the amount paid is deducted from the total liability he is not liable to pay anything more towards her maintenance.
5. Learned counsel for respondent No,4 has argued that the petitioner himself had filed Writ Petition No,7118 of 1994 in which he had asserted that decree of Khula' granted to respondent No,4 had not attained finality since Rs,14,000 `Zare Khula' had not been paid by her and unless and until the said `Zare Khula' was paid by respondent No,4 to the petitioner, the divorce would not attain finality and, as such, respondent No,4 was still legally wedded wife of the petitioner. He has further argued that no notice of `Talaq' had been given by the petitioner to respondent No,4, therefore, according to section 7 (3) of the Muslim Family Laws Ordinance, 1961 the divorce had not become effective and no certificate of -falaq had been issued by respondent No,2 declaring the `Talaq' effective. Since the petitioner himself had not released respondent No,4 from the marriage tie, he was bound to pay maintenance to her until a certificate of -falaq' was issued by respondent No,2 in favor of respondent No,4.
6. In rebuttal learned counsel for the petitioner has argued that Talaq' would become effective 90 days after the decree of the Family Court and issuance of certificate by the Chairman, Arbitration Council was not mandatory and, that Rs,14,000 `Zare Khula' was deductible from the liability of the petitioner towards respondent No,4 and, therefore, effectiveness of -falaq' could not be held in abeyance on account of non-payment of Rs,14,000 by respdndent No,4. Learned counsel has placed reliance in this behalf on the cases cited as Khadim v. Judge, Family Court, Samundri, District Faisalabad and another (1991 M LD 1250) and Abdul Sattar v. Mst. Zahida Parveen and 10 others (1991 M LD 403).
7. I have heard the learned counsel for the parties and have also gone through the record with their able assistance. Respondent No,2 had awarded maintenance on 22-1-1993 in the sum of Rs,56,000 to respondent No,4 which had been upheld by the High Court in Writ Petition No,5270 of 1994. During the pendency of application for maintenance before the Arbitration Council, respondent No,4 had filed the suit for dissolution of marriage which had been decreed in her favor on 24-10-1992 on the basis of Khula' subject to payment of Rs,14,000 by respondent No,4 to the petitioner as `Zare Khula'.
This decree attained finality after passage of 90 days of `Iddar period and it is immaterial whether notice of the same was sent to the Arbitration Council or certificate was issued by the Arbitration Council or not. The marriage has been dissolved at the instance of respondent No,4 herself, the decree has also been obtained by her, therefore, she cannot assert that the same was not within her knowledge which is the primary purpose of issuance of certificate by the Arbitration Council .
Once having obtained this decree she cannot claim maintenance beyond the `Iddat' period since she cannot approbate and reprobate in this regard. Respondent No,4 never appeared in Writ Petition No,7118 of 1994 wherein the petitioner had made attempt to reconcile with her, therefore, it does not lie in her mouth to assert that she kept waiting for reconciliation with the petitioner and did not re-marry under the impression that her divorce had not attained finality. She had obtained ex parte decree for additional amount of Rs,82,500 and had also filed execution proceedings, under which a demand notice of Rs,1,25,333 was issued to the petitioner. The only, liability of the petitioner towards respondent No,4 is the amount of Rs,56,000 as awarded to respondent No,4 inclusive of Iddat' period by respondent No,2 vide order dated 22-1-1993. Out of this amount the petitioner has already paid Rs,33,667 by deposit in the Lahore High Court and Rs,14,000 which was payable by respondent No,4 to the petitioner is further deductible from the balance amount of maintenance.
After deduction of all these amounts I find that the petitioner is liable to pay an amount of Rs,5, 333 to respondent No,4 as full and final payment of maintenance.
8. In view of the above discussion, this petition is accepted in the aforesaid terms. There is no order as to costs.