CHAUDHARY MUHAMMAD TAJ, J:---This appeal, by leave, is directed against the judgment and decree passed by the Shariat Court on 31-1-2003.
2. The facts are that the appellant filed a suit for past maintenance ten years in the Court of Judge Family Court Mirpur. The suit was resisted by the opposite side hence issues arising out of the pleadings of the parties were framed. The trial Court framed as many as three issues. The burden of proof of issues Nos.1 and 2 was placed on the respondent' while that of issue No,3 on the shoulder of the appellant herein. The trial Court decided issues Nos.1 and 2 against the respondent. The order was finally upheld by this Court. After conclusion of the suit a decree for Rs,1,20,000 was passed in favour of the appellant. The judgment and decree was challenged through an appeal before the Shariat Court of Azad Jammu and Kashmir and the same was set aside through the order impugned herein.
3. Ch. Ali Muhammad, the learned counsel appearing for the appellant, contended that the judgment and decree passed by the Shariat Court is illegal and has been passed against the facts on record. It was argued that the observation made by the Shariat Court that past maintenance cannot be granted in view of the decree for dissolution of marriage on the basis of nen- maintenance and Khula' is against law. The observation that the appellant was not willing to live with the respondent and had developed hatred against him therefore, she was not entitled to past maintenance, was against the settled law by the superior Courts. The learned counsel referred to .The following authorities in support of his assertions:--
(1) Abdul Rehman v. Mst. Khatoon and 2 others (1989 CLC 1979).
(2) Muhammad Saleem v. Additional District Judge (V), Rahim Yar Khan (1988 CLC 1134).
(3) Mehboob Ali v. Mst. Mubina Khatoon and 2 others (PLD 1977 Karachi 558).
(4) Munshi v. Mst. Rashida Bibi (1972 PCr.L.J 1311).
4. Mr. Muzaffar Ali Zaffar, assisted by Syed Nishat Kazmi Advocate, while arguing on behalf of the respondent, contended that the appellant is not entitled to past maintenance as a decree on the basis of Khula' was passed where it was claimed that the appellant had developed hatred against the respondent. In the circumstances when she herself refused to live with the respondent as such she was not entitled to any past maintenance. The learned counsel referred to the following authorities in support of his assertions:-
(1) Mst. Hanifa Bai v. Muhammad Moosa and others (PLD 1998 Karachi 234).
(2) Muhammad Aslam v. Mst. Zainab Bibi and 3 others (1990 CLC 934).
(3) Mst. Reshman Bibi v. Muhammad Shafi (PLD 1967 AJK 32).
5. We have heard the learned counsel for the parties, and also gone through the record carefully.
The appellant filed a suit in the trial Court claiming therein that her marriage took place with the respondent on 8-2-1988. She remained with the respondent for a period of three months and thereafter she was turned out after giving a beating. It was further claimed that she filed a suit for dissolution of marriage which was decided in her favour on 7-5-1999. She claimed past maintenance for a period of ten years. The suit was resisted by the opposite, side. Hence following issues were framed:-- "(1) Whether the plaintiff is not entitled to get past maintenance, therefore, her suit is not maintainable? (O.P.D).
(2) Whether the Court has got no jurisdiction? (O.P.D).
(3) In case issues Nos.1 and 2 are not proved affirmatively whether the plaintiff is entitled to receive past maintenance from her husband. (0.P.P)."
6. The trial Court decided issues Nos.1 and 2 against the respondent. The order was upheld up to this Court. After conclusion of the suit a decree for Rs,1,20,000 for the past ten years maintenance was granted in favour of the appellant. The judgment and decree was set aside in an appeal filed on behalf of the respondent by the Shariat. Court.
7. The learned Judge in the Shariat Court while setting aside the decree passed by the trial Court observed as under:- "It appears from the analysis and assessment of the evidence led by the parties except the statement made by the respondent, which is no statement in the eye of law, that the respondent was not willing to live with the appellant and has developed hatred against the appellant. This fact is even proved from the decree of dissolution of marriage on the basis of Khula' in favour of the respondent, therefore, the respondent was not entitled to the past maintenance
7. Since the respondent was living separately due to her hatred which she had developed against the appellant and on the basis of which she had already obtained a decree of dissolution of marriage, therefore, the impugned judgment and decree for the past maintenance in the sum of Rs,1,20,000 in favour of the respondent could not be sustained."
8. After giving deep thought, we are of the view that the Shariat Court has failed to appreciate the facts in the light of law particularly the order passed by this Court in respect of issues Nos. 1 and 2 which were decided against the respondent, was not taken into consideration. Those two issues related to the controversy whether the Court had the jurisdiction and also to grant the past maintenance. Those were decided against the respondent which implies that it was held that the Court can grant past maintenance in favour of the appellant provided issue No,3 is proved.
9. The trial Court on the basis of evidence allowed a decree for the past maintenance of ten years.
Though this Court was not obliged to peruse the entire evidence, however, for the safer administration of justice we have done so and are of the view that the findings of the trial Court are based on the evidence and have been made after due appreciation as required under law.
Therefore, those findings cannot be held against the record.
10. The next question which arises was also seriously opposed by the learned counsel for the respondent that the past maintenance for a period of ten years cannot be granted. After perusing the Family Courts Act it can safely be held that the past maintenance can be granted by the Family Court but in view of the fact that there is no specific Article providing limitation for filing suits for maintenance therefore the resort can be had to the residuary Article 120 of the Limitation Act which prescribes six years as limitation, therefore, it is held that the past maintenance of six years can be granted and beyond that the claim would be barred by limitation. Proposition finds support from a case reported as Muhammad Aslam v. Mst. Zainab Bibi and 3 others (1990 CLC 934) where the following observations were made:- "4. There can be no cavil that the provisions of Limitation Act, 1908 are applicable to proceedings before the Family Court and further that section 3 of the Limitation Act obliges a Court in no unmistakable term to reject the claim if it is beyond the time prescribed by the first Schedule to the Act. There is no specific Article in the Schedule providing limitation for filing suits for maintenance, with the result that the resort must be had to the residuary Article 120 of the Limitation Act which prescribes 6 years period as limitation. A Division Bench of this Court in Muhammad Nawaz v. Mst.
Khurshid Begum and others (W.P. No,835 of 1969) decided on 15th December, 1969 was called upon to consider the question as to whether the past maintenance could be granted by the Arbitration Council under the Muslim Family Laws Ordinance, 1961, and if so, far what period. It was held: It is conceded by the learned counsel that there is no Article in the Schedule to the Limitation Act dealing specifically with the question of the recovery of past maintenance, and for that reason the matter may be said to be governed by the residuary Article 120 which prescribed a period of 'six years. The past maintenance in the present case has been allowed by the Arbitration Council expressly for a period of five years and ten months which would, therefore, appear to be within the period of limitation as obtaining under Article 120 of the Schedule to the Limitation Act.' This judgment was affirmed in appeal by the Supreme Court of Pakistan in the case reported as Muhammad Nawaz v. Mst. Khurshid Begum and three others PLD 1972 SC 302. The above-quoted observations of the Division Bench were approved by the Supreme Court in the following terms:-- In the present case, the High Court has considered the question of limitation and has come to the conclusion that Article 120 of the Limitation Act applies to the facts of the present case and the claim of the respondent was not barred by limitation. In this view of the matter, we are satisfied that the High Court has rightly held that the Arbitration Council was competent to award past maintenance'."
11. In view of the above discussion, the judgment and decree passed by the Shariat Court is not maintainable which is set aside by accepting the appeal and the judgment and decree passed by the Judge Family Court Mirpur is hereby restored with the modification that the past maintenance shall be for a period of six years only which is calculated as Rs,72,000 with no order as to costs. The case law referred to by the learned counsel for the parties with its distinct facts is not applicable to the case in hand as such is not discussed.