This judgment shall dispose of writ Petitions Nos.20781 of 2000 and 2590 of 2001 since the judgment assailed in both the is the same i.e. The judgment and decree dated 5-9-2000 passed by respondent No.6, learned Additional District Judge, Mandi Bahaud Din, whereby he had partly accepted the appeal of the present petitioner, Syed Shafqat Abbas, and had modified the decree of maintenance dated 2-5-2000 of respondent No.5, learned Judge Family Court, Mandi Bahaud Din. Respondent No.5 had decreed the suit of respondents 1 to 4 three minor daughters and were of the present petitioner; for maintenance in their favour in the amount of Rs.1,500 per month per child for respondents Nos. 1 to 3 and Rs.1,500 per month for respondent No.4 Mst. Fakhar Batool, were of the petitioner. The maintenance for all the four respondents to be paid for the period commencing 3 years prior to the institution of the suit. The maintenance of three minors would be payable till their entitlement under the law while maintenance of respondent No.4 would be payable as long as she remains the were of the petitioner. Respondent No.6 while partly accepting the appeal of the petitioner had reduced the maintenance of respondents Nos. 1 to 3 to Rs.1,000 each per month while maintaining the rate of maintenance of respondent No.4 and also period of maintenance for all the four respondents.
2. In Writ Petition No.20781 of 2000 the judgment and decree of respondent No.6 has been assailed seeking reduction of the amount of maintenance for all the four respondents as well as he has also challenged the entitlement of respondent No.4 of maintenance on the ground that he has already divorced the respondent No.4 and she is entitled to maintenance for the period of 'Iddat' only. On the other hand, learned counsel for respondent No.4 has assailed the same judgment in Writ Petition No.2590 of 2001 seeking restoration of the amount of maintenance awarded by respondent No.5 i.e. Rs.1,500 each in respect of three minors.
3. Learned counsel for the petitioner, Syed Shafqat Abbas, has argued that respondent No.6 has illegally passed the impugned judgment and decree without taking into consideration the fact that the petitioner had married three times, out of which two marriages are subsisting; that he has eleven daughters from three marriages; and that he had contracted three marriages for having male issue but he still had not any male child; that he has to maintain all the daughters and two wives on a meager income; that his means of income have not been taken into consideration by the Courts below; that he had divorced respondent No.4 in February, 1997 while giving three notices of 'Talaq' to her in the presence of witnesses notice had also been sent to the Qadir Abad who had given regarding the that respondent No.4 is, therefore, not entitled, to any maintenance after May, 1997; that the suit was filed in 1999; that the claim of respondent No.4 is based on mala fide.
Learned counsel for the petitioner has relied on an F.I.R. Which was got registered at the instance of respondent No. 4 on 13-3-1993 at Police Station City, Mandi Bahaud Din, according to which the petitioner had tried to evict respondent No.4 from the house where she was residing and in the F.I.R.
It was mentioned that the petitioner had stated that he had divorced respondent No.4 about 20 days prior to the occurrence, according to the F.I.R. Which was registered on 13-3-1993; that in the statement given by him during the proceedings for maintenance before respondent No.5 he had stated categorically during the deposition in the Court on 21-4-2000 that he had divorced his were, respondent No. 4 in February, 1997. The petitioner also submits that respondent No.4 had earlier filed a suit for maintenance which had been withdrawn unconditionally on 24-5-1997, and the order regarding withdrawal of this case has been placed in support of his contention; that he had paid heavy amount to the brother of respondent No.4 for settlement of suit for maintenance and also given him share in the Toyota Hiace to the brother of respondent No.4, that it has been wrongly held that he is the sole proprietor of Bukhari Motors and, therefore, he has been burdened with Rs.54,000 which is beyond his means, as Bukhari Motors is having three partners and his business is not properly going on due to slump and he is not in a position to pay the decretal amount.
4. Learned counsel for respondents Nos. 1 to 4 has argued that respondents Nos. 1 to 3 are admittedly the children of the petitioner and he is bound to maintain them; he is hiding his true income before this that in the documents of Nikah of third marriage he had agreed to pay Rs.2,000 per month to third were; that a son was born in November, 2000 and the petitioner had arranged a huge party on the occasion and also celebrated 'Aqiqa' of that son and on that occasion the entire 'Baradri' has been invited and since he has means for such heavy expenditures, he is able to maintain respondents.
5. Regarding the divorce to respondent No.4 it is argued that no divorce notice was ever issued by the petitioner to respondent No.4 and the certificate which is produced by him from the Arbitration Council is also forged document regarding which certificate has been obtained by respondent No.4 to the effect that no divorce between the parties named in this petition has been recorded in the register the aforesaid Union Council between the period of 18-1-1997 to 30-10-1997. According to the learned counsel for respondent No.4, respondent No.4 is still the were of the petitioner and she is entitled to be maintained by him until such time he pronounces divorce to respondent No.4 in front of witnesses and in the presence of respondent No.4 since she belongs to 'Fiqa Jafria' and according to that 'Fiqa' this is the only mode of divorce.
6. I have heard the learned counsel fore the parties and have gone through the record with their assistance. Both the Courts below after proper assessment of facts have come to the conclusion that the petitioner is a man of means and he is able to maintain all the three minors as well as respondent No.4 as long as she remains his were. The amount of maintenance has been reduced by respondent Vo.6 from Rs.1,500 per month to Rs.1,000 per month each in respect of respondents Nos. 1 to 3, therefore, the burden of the petitioner has considerably reduced.
7. Regarding rate of maintenance of Rs.1,500 as long as respondent No.4 remains his were, according to the admission of the petitioner himself the notice of divorce was not sent to the Union Council where respondent No.4 was residing nor has he produced any evidence that notice of divorce was ever given to respondent No.4 herself. The certificate produced by the petitioner regarding the effectiveness of divorce is not supported by any other evidence to show that the notice of proceedings before the Arbitration Council had ever been given to respondent No.4. If she had not been served with any notice by the petitioner or by the Arbitration Council then no divorce could be declared effective against her in her absence. According to respondent No.4, her prior suit for maintenance had been withdrawn on 24-5-1997 since the petitioner had persuaded her to enter into a compromise in order that she may withdraw the suit but immediately thereafter he again refused to maintain her. There is nothing on the record of that suit or in the order which shows that the petitioner had divorced the respondent No.4. However, in the proceedings for maintenance, out of which the present petition arises, the statement of the petitioner has been recorded on 21-4-2000 wherein he has stated that he has divorced respondent No.4.
8. Since the statement was made in the proceedings in which respondent No.4 was a party, she has obtained knowledge of the statement and her counsel cross-examined the petitioner on the very same deposition. Since the marriage is a contract which can be terminated by the husband by giving notice of 'Talaq' to the were and the petitioner had specifically stated in the proceedings that he had divorced his were, since that date she is presumed to have knowledge of divorce i.e. From 21-4-2000 to 27-7-2000, the divorce having been statedly given in the presence of the witnesses in the open Court, therefore, the entitlement of respondent No.4 would extend till the divorce between the petitioner and respondent No. 4 became effective on 21-7-2000. No finding has been given by the Courts below as to how long respondent No.4 remained as were of the petitioner but according to the law on the subject and the record of the case the divorce would be presumed to be effective on 21-7-2000.
9. The rate of maintenance of respondents Nos. 1 to 4 is not exorbitant according to the assessment of the means of the petitioner made by respondents Nos. 5 and 6, therefore, I find no infirmity in the judgment of respondent No.6 who has reduced the burden of the petitioner to some extent therefore, the petitions-are dismissed and the maintenance decreed by respondent No.6-is maintained in respect of respondents Nos.1 to 4 with the observation that respondent No.4 is entitled to the maintenance till her divorce became effective. There is no order as to costs. Rs.5,000 deposited by the petitioner in this Court shall be paid to respondent No.4 on her application and identification. The balance decretal amount may be recovered according to law.