Mian Arif Mehmood, petitioner, was married to Mst. Tanvir Fatima, Respondent No, 1 on the 11th of March 2000. The marital relations of the parties were short-lived. According to Respondent No, 1, at the time of marriage, the petitioner had shown himself to be aged 32/33 years and unmarried, but after about 2/3 months, Respondent No, 1 felt that he was a middle aged person, being 42/43 years old, and was not only married, but had three children as well from the first wife. Thus, the happy moments started percolating into a hatred union, and the parties eventually fell out inasmuch as, according the respondent, she was in the family way when in the month of May 2000, the petitioner expelled her out of his house, whereupon she took refuge in her parents' house. The record shows that she gave birth to a son, named Abdul Muqeet on the 1st of January 2001. Mst.
Tanvir Fatima then approached the Nazim of the concerned Union Council with a petition claiming maintenance at the rate of at least Rs, 10,000/- per mensem, by pleading that she had been deserted in May 2000; that since then she was residing with her parents, and had herself borne hospital and other maternity expenses amounting to Rs, 75,000/-; that her father was a retired public servant and was yet to marry two of his sons, and that; therefore, it was not possible for her parents to maintain her. It was further pleaded that the petitioner was owner of Mian Arif Karim Flour Mills, Kamonke; that he was living in a palatial house, located on Habibullah Road, Lahore; that besides being owner of vast immovable properties, he was earning at least Rs, 50,000/- per mensem from different sources and thus, being in affluent circumstances, could easily afford payment of Rs, 10,000/- per mensem as maintenance allowance to her. Vide decision, dated the 30th August 2002, the Chairman, Arbitration Council awarded in her favour maintenance of Rs, 8,000/- per month with effect from the 25th of May 2000 till the said decision (amounting to Rs, 2,17,548/-) and at the same rate till such time the marital relations between the parties subsisted.
The petitioner challenged in revision the said decision, which was heard by the learned District Officer (Revenue), Lahore, who dismissed the same vide order, dated the 4th of July 2003. The petitioner has assailed the legality of the said decisions through this Constitutional petition.
2. I have heard the learned counsel for the parties and have perused the available record with their assistance.
3. At the outset, Mr. Iqbal Hameed-ur-Rehman, learned counsel for Respondent No, 1 has raised a preliminary objection to the maintainability of this Constitutional petition by contending that the Chairman, Arbitration Council and the Revisional Authority were invested with the exclusive jurisdiction to determine the maintenance allowance to which Respondent No, 1 was entitled, and that since they had the jurisdiction to decide it rightly or wrongly, their orders, impugned herein, are not open to judicial review under Article 199 of the Constitution. He placed reliance inter alia on Abdul Rehman Bajwa v. Sultan (PLD 1981 Supreme Court 522). The objection is liable to be over- ruled in view of the subsequent decision of the Hon'ble Supreme Court reported as Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal (PLD 1987 Supreme Court 447) wherein at page 452 of the Report, the law was declared in the following terms:-- "It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction."
4. Malik Muhammad Azam Rasool, learned counsel for the petitioner contends that the petitioner had divorced the respondent vide Divorce Deed, dated the 20th of November 2000, coupled with the Notice of Talaq of even date, addressed to the concerned Nazim/Chairman, Arbitration Council under Section 7(1) of the Muslim Family Laws Ordinance (No, VIII) of 1961, pursuant whereto notice was issued to the respondent on the 24th of November 2001, as is apparent from the order of the Chairman on the said Notice of Talaq; that the Talaq had become effective on expiry of ninety days therefrom and was not postponed because of inaction on the part of the Chairman, Arbitration Council in winding up proceedings to culminate in the issuance of Certificate of effectiveness of Talaq; that the Talaq had become effective on the 28th of February. 2003; that the application for maintenance filed by Respondent No, 1 on the .16th of May 2002, after the Talaq had become effective, being an application by an ex-wife was incompetent; and that, therefore, the impugned orders, whereby maintenance had been awarded from 25th of May 2000 to 30th of August 2002 and for future as well, on misconception of legal position that relationship of husband and wife still subsisted between the parties, were patently illegal and without lawful authority. In the alternative, it is argued that the award of maintenance allowance could not travel beyond the 28th of February 2002 when the Talaq had become effective. In support of his submissions, learned counsel has relied on Muhammad Ashraf Qazi v. Mst. Hamida Khanum [NLR 1980 Civil (Lahore) 1352], Amanullah v. Eidat Shah (1984 P.Cr.L.J. 1352) and M. Zakria Khan v. Aftab Ali Khan (PLD 1985 Lahore 319).
5. The contention of the learned counsel for the petitioner that the Talaq pronounced by the petitioner upon the respondent having not been revoked, had become effective after the expiry of ninety days from the date of receipt of Notice by the Nazim/Chairman, Arbitration Council in view of the provisions contained in sub-sections (3) and (5) of Section 7 of the Muslim Family Laws Ordinance 1961, is well founded, and finds support from the cases of Muhammad Ashraf Qazi, Amanullah Khan and M. Zakria Khan (Supra).
6. The next limb of the argument of the learned counsel for the petitioner that the application, dated the 16th of May 2002 having been filed by Respondent No, 1, an ex-wife of the petitioner, the same was not maintainable under Section 9 of the Muslim Family Laws Ordinance, 1961, is destitute of a valid foundation. The precise question came up for consideration in Ghulam Jilani v. Deputy Commissioner/Collector, Sialkot (PLJ 1992 Lahore 73) and it was held by this Court as follows:-- "The question which arises for consideration is as to whether after the dissolution of marriage, an ex-wife can recover maintenance from her ex-husband by filing an application under Section 9 of the Muslim Family Laws Ordinance, 1961. There cannot be any doubt that Section 9 of the Muslim Family Laws Ordinance 1961, is a beneficial piece of legislation and is to be construed, keeping in view the object for which it was enacted, which was to provide remedy to a woman for recovering maintenance from her husband before a domestic forum which is free from all legal formalities.
Viewed from this angle, it becomes difficult to accept the contention of the learned counsel for the petitioner, that if a marriage stands dissolved, the wife cannot invoke Section 9 of the Ordinance.
There appears to be no rationale for accepting such an interpretation. The contention of the learned counsel that since the words 'wife' and 'husband' appear in Section 9, it has reference to cases only where the marriage subsists, is not well founded. If the dispute relates to the period during which the marriage was subsisting, and the husband was under an obligation to maintain the wife, she can certainly ask for recovery of the maintenance for that period, notwithstanding the dissolution of marriage. I am fortified in this view by the authority of the Supreme Court in Muhammad Najeeb vs. Mst. Talat Shahnaz (1989 SCMR 119) wherein it was observed that:-- 'Nevertheless, we heard both the learned counsel on technical questions also raised by them. In the first petition the argument of the learned counsel, that Section 9 of the Family Laws Ordinance speaks of a 'husband' and a 'wife'. The petitioner having divorced the respondent wife therein, she could not have made an application as a 'wife', for maintenance. We do not agree with him. When an application is made by an ex-wife for maintenance regarding period when the wedlock was intact and also for the Iddat period, it would be made by the so called divorced wife and would be covered by the word 'wife' as contained in Section 9. Therefore, there is no force in the argument of the learned counsel." The observation of this Court in Muhammad Abdur Rashid vs. Mst. Shazia Parveen and others (1987 MLD 766), the learned Chief Justice was of the opinion that a divorced wife was entitled to receive maintenance for the period of Iddat, if any, awarded by the Arbitration Council after divorce proceedings had concluded. The last case to which reference may be made is that of Muhammad Banaras vs. Chairman, Union Council, Chak Malak, Tehsil and District Chakwal etc. (1990 Law Notes (Rawalpindi Bench) 1197), wherein my learned brother M. Mahboob Ahmad, J. (as his Lordship then was), repelled similar contention as is being raised by the learned counsel for the petitioner.
7. It is to be seen that while considering the nature of the maintenance awarded, to the wife, it was held by this Court in Rashid Ahmad Khan v. Mst. Nasim Ara and others (PLD 1968 Lahore 93), that the husband's obligation to maintain the wife commences simultaneously of the creation of matrimonial tie and is an obligation and not ex gratia grant and, therefore, it can be enforced with regard to past period of married life, if the wife did not claim it during that period. For this reason also, the contention of the learned counsel that for the period that the Arbitration Council cannot direct recovery of arrears of maintenance if the marriage has been dissolved cannot be accepted.
Once a liability on account of maintenance has accrued, it can be recovered in the manner provided in Section 9 of the Muslim Family Laws. Ordinance 1961."
Same view was taken in Riffat Ibrar v. Mst. Shehla Sabri (PLD 1994 Lahore 148), Muhammad Saleem v. Mst. Zeba Abdul Hameed (1995 MLD 988) and Muhammad Ashraf v. Mst. Bushra Shaheen (PLD 1995 Lahore 44). The contention, being devoid of force, is repelled.
7. The argument of the learned counsel for the petitioner that since Talaq had become effective on 28th of February 2002, no maintenance could be awarded for the period subsequent thereto is partly correct. The Nazim/Chairman, Arbitration Council had awarded maintenance till the decision of the application on 30th of August 2002 and for future also. Since the marriage stood dissolved on 28th of February 2002, Respondent No, 1 could lawfully claim maintenance till then as well as for the Iddat period, as held in Muhammad Abdul Rashid v. Mst. Shazia Parveen (1987 MLD 766), Muhammad Najeeb u. Mst. Talat Shahnaz (1989 SCMR 199) and Mansoor Tariq Khan v. Mst.
Nafeesa (1999 CLC 305). The impugned order of maintenance, therefore, can be sustained only partially, and not in its entirety. In the view of the matter I take, the respondent is found entitled to maintenance from 25th of May 2000 to 27th of June, 2002.
8. Learned counsel for the petitioner then contended that the petitioner has been condemned unheard inasmuch as he had neither been served with any notice, nor he had even otherwise knowledge of the proceedings before the Arbitration Council. In support of this submission, reliance has been placed on Muhammad Najeeb v. Mst. Talat Shahnaz and 2 others (1985 CLC 649) wherein it was held that the Chairman, Arbitration Council is bound to issue notice to husband before passing order of maintenance to wife. So far as the instant case is concerned, in the impugned decision, dated the 30th of August 2002 of the Arbitration Council, it is categorically mentioned that, in the first instance, notice was sent to the petitioner through registered post, but despite receipt of notice he did not turn up, whereafter he was served through a proclamation in the Daily "Ujrat" of its Issue, dated the 21st of August 2002 for his appearance before the Arbitration Council on the 30th of August 2002, but he elected not to appear. In his revision petition, the petitioner had pleaded non-receipt of notice and lack of knowledge of the proceedings before the Arbitration Council. While attending to this plea of the petitioner, the learned District Officer (Revenue), Lahore, has recorded the following finding of fact:-- "The record maintained by the Union Council concerned amply proves that service of notice on maintenance application was duly served upon the petitioner through Muhammad Ashfaq, Naib Qasid who delivered a copy of the notice so issued at his given address as is reported on the back of the notice. Again notice was sent through registered post and the postal receipt of registry as well as copy of the newspapers is available on the record file. In my opinion it was sufficient service under the law and the learned Chairman was quite justified in these circumstances to proceed against the petitioner exparte."
Learned counsel for the petitioner has failed to show that the afore-quoted finding recorded by the learned revisional authority was not sustainable, being not supported by evidence on record. In almost similar circumstances, it was held in Muhammad Ashraf v. Mst. Bushra Shaheen (PLD 1995 Lahore 44) as follows:-- As regards the contention that the petitioner did not receive notice of the proceedings, the learned revisional Court has observed in Para. 4 of the impugned judgment that the petitioner acknowledged the receipt of registered letter for 22.8.1993 and a notice was pasted at his residence for 4.11.1993. Again a notice was pasted at his residence to appear on 9.12.1993 and finally a notice was published in Daily "Mashriq" on 30.12.1993 summoning the petitioner to appear before the Arbitration Council on 13.1.1994, after which ex parte proceedings were adopted with are in accordance which law on the subject."
The contention is thus not sustainable and is repelled.
9. The next submission of the learned counsel for the petitioner, that Respondent No, 1 having herself chosen to stay away from the petitioner, was not entitled to maintenance has not impressed me. It has come on record that the petitioner was already having a wife and children from her. The respondent was left in the lurch, the knew nothing with regard to his married status as well as about his exact age. The petitioner must have come to his own conclusion in not insisting upon incompatible parties-two ladies jealous of each other to live together and thereby making life a hell not only for them but for him as well. They were kept apart, not allowing them to know each other or even their abode. Therefore, the petitioner should have no grouse against the respondent as no one could blame her because the petitioner's first wife was probably a virago and for that reason he himself had to stay away from her. Therefore, in the peculiar facts and circumstances of the instant case, it cannot be held that the respondent was altogether at fault and had disentitled herself by living apart from the husband. Times have changed. Hardships which wives were prepared to endure in the past, they are not prepared to tolerate now.
10. This brings me to the most important question involved in this petition, viz., the quantum of maintenance of Rs, 8,000/- per mensem awarded in favour of the respondent. Learned counsel for the petitioner has submitted that it is unreasonable. According to him, the intention of the law is to provide maintenance against starvation and consequent vagrancy, and it had never been the intendment of the Legislature to provide anything more than food, clothing and bedding. The contention has no force. Section 9 of the Muslim Family Laws Ordinance, 1961 reads as follows:-- "9. Maintenance. (1) If any husband fails to maintain his wife adequately or where, there are more wives than one fails to maintain them equitably, the wife, or all or any of the wives may in addition to seeking any other legal remedy available, apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband.
(2)A husband or wife may in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision of the certificate, to the Collector, concerned and his decision shall be final and shall not be called in question in any Court.
(3)Any amount payable under sub-section (1) or (2) if not paid in due time shall be recoverable as arrears of land revenue."
A plain reading of Section 9 ibid means that a husband has to maintain his wife "adequately and if he has more wives than one, he must maintain them "equitably". Therefore, the maintenance should not be bare minimum sustenance allowance but a convenient provision in consonance with what the husband can afford as also what are the needs of the wife. It is not the meeting of the mere wants by way of sustenance because in these days of inflationary trend and the constant rise in the cost of living index, it is bound to work hardship on the wife. A person taking on the responsibility of marriage has to maintain his wife, and it is in all cases necessary to ascertain the visible means and the earning capacity of the husband. Therefore, in fixing the maintenance, the Court has to take into consideration not only the needs of the wife but also the paying capacity and circumstances of the husband who is liable to pay maintenance. Whereas to insist upon conformance to the principle of bare minimum sustenance allowance, particularly in a case where the husband is in affluent circumstances, would be not only inequitable but unjustified, if upon consideration of visible income of the husband, he is found to be able to pay a little more to keep up the wife going on an even keel, it cannot be said that the Court would thereby be pampering a wife who seeks to live apart from the husband. However, the maintenance allowance should neither be too heavy so as to tempt the wife to stay away from her husband, neither too meagre so as to leave her high and dry. In my opinion, the balance has to be struck. The amount of maintenance payable to a wife should not be so small as to simply keep her body and soul together. It has to be an amount which could be enough to keep her at least financially in comfort, particularly in these days of high and rising prices. In regard to determining what is required by the wife, the Court has to steer clear of two extremes viz, it must not give maintenance to a wife which would keep her in luxury and would make judicial separation profitable, and also impede any future reconciliation. It must also steer clear of the other extreme, viz, penuriousness. Steering clear of these two extremes the Court must see whether the amount to be fixed as maintenance would be liberal or illiberal. If this is kept in view, may be the couple will see the error of their ways and might get reconciled and lead a happy domestic life, unless they have already parted ways, as is the case here. 11.The question of quantum of maintenance is a matter primarily in the discretion of the trial Court which has to take into consideration several factors, like the status of the family, the earning capacity, commitments of the husband, and what is required by the wife to maintain herself. In the present case, the respondent has led evidence to show that the petitioner is possessed of considerable assets and income. Since the petitioner has remained ex parte before the Arbitration Council, there is nothing on record to controvert the evidence adduced by the respondent. Even in his revision petition and the Writ Petition, the petitioner has not thrown a successful challenge to the evidence produced by the respondent. Moreover, it is not the case of the petitioner that the respondent is a lady who belongs to a class who go out for work for earning their livelihood. Since the petitioner had not entered appearance before the Arbitration Council and was proceeded against ex parte, there is nothing on record. to dislodge the evidence produced by the respondent.
The petitioner has not brought on record of this petition even the evidence produced before the Arbitration Council by the respondent. In the circumstances, it cannot be said that any material piece of evidence has been misread or excluded from consideration.
12.Undeniably, the petitioner had a wife before his marriage with the respondent. He had also children from the first wife. It is mentioned in the petition filed by the respondent before the Arbitration Council that the petitioner had provided a Mobile Phone to his first "secret" wife, and that he had himself told her, on more than one occasion, that he had the intention to educate his children from the first wife in Convent School. The petitioner has married a second wife, leaving his first wife and children. Not only that he has deserted and subsequently divorced the second wife who has given birth to a son also, out of her wedlock with him. In the circumstances, learned counsel for the respondent argued that it is a fit case for penalizing such an irresponsible husband and the only way the Court could help in such circumstances is to compel the husband to pay a heavy premium for the luxury of wives, one after the other, and the, punishment should be exemplary in order to have a deterrent effect on society. However, learned counsel for the respondent had to concede that in the absence of any challenge to the amount of maintenance fixed by the Chairman, Arbitration Council as upheld by the revisional authority, this Court cannot, or at least it should not, increase the same suo moto in the exercise of its Constitutional jurisdiction.
13. Upon considering the entire pros and cons of the matter, no error of approach or jurisdictional defect has been found in the impugned decisions, requiring interference in Constitutional jurisdiction subject, of course, to what has been mentioned above about the period for which the respondent was legally entitled to claim maintenance, she having been divorced by the petitioner.
14. Lastly, it falls for determination whether, after declaring the impugned orders as partially without lawful authority, the case should be i emitted to the Chairman, Arbitration Council to pass a fresh order, or the impugned orders can be modified by this Court, so that the agony of the parties, in particular of the respondent comes to an end. I am of the considered view that the portion of the original order which is untenable in law can be declared as without lawful authority and the decree to that extent can be modified, whereas the portion of the order which is sustainable can be kept intact. In similar circumstances, a decree passed in a family case was modified in Asad Ali v.
Judge, Family Court, Lahore (1995 MLD 172).
15. As mentioned above, the respondent has been found entitled to maintenance from the 25th of May 2000 upto the 28th of February 2002, when the Talaq became effective and also for the Iddat period which expired on the 27th of June 2002. The period comes to about 25 months, and at the rate of Rs, 8,000/-, per mensem the total amount to which the respondent is found entitled, comes to Rs, 2,00,000/-. The impugned decisions are maintained to this extent only whereas the same cannot be sustained in law so far as award of maintenance after the expiry of the Iddat period is concerned and are, therefore, declared to be without lawful authority.
16. The result of the above discussion is that the Writ Petition is partly allowed and the impugned decisions are modified as aforementioned. There shall be no order as to the costs.