PLJ 2000 Lahore 1851
Present: mrs. FAKHAR-UN-NlSA KHOKHAR, J.
MUHAMMAD
ASAD-Petitioner
versus
Mst. HUMERA NAZ and 3
others-Respondents
W.P. No. 7755 of 2000, decided on 8.6.2000. (i)
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
—S. 7-Oral talaq and talaq
in writing-Effect-No particular form is necessaiy for pronouncing talaq
which may be in writing or by word of mouth-Under
Sunni law where husband reduces talaq in
writing and in clear words mentions name of the lady whom he had
divorced, such fact constitutes valid divorce—Talaknama in writing is record of the fact of oral
talaq or the same would be deed by
which divorce would become
effective—Such divorce must disclose clear intention that marriage stands, terminated-In case of oral talaq, however, communication would be necessaiy for the purpose of dower, maintenance or woman's right to pledge her husband's credit foi means of subsistence-Talaq becomes irrevocable in Ahsan mode on expiry of iddat-Talaq in Hasan mode becomes irrevocable and complete on third pronouncement irrespective of
iddat—Talaq in Badai mode irrevocable immediately on itspronouncement irrespective of iddat-Such talaq is called talaq-i-Bain i.e.,
irrevocable talaq. [P. 1857] A
effective—Such divorce must disclose clear intention that marriage stands, terminated-In case of oral talaq, however, communication would be necessaiy for the purpose of dower, maintenance or woman's right to pledge her husband's credit foi means of subsistence-Talaq becomes irrevocable in Ahsan mode on expiry of iddat-Talaq in Hasan mode becomes irrevocable and complete on third pronouncement irrespective of
iddat—Talaq in Badai mode irrevocable immediately on itspronouncement irrespective of iddat-Such talaq is called talaq-i-Bain i.e.,
irrevocable talaq. [P. 1857] A
(ii) Family Courts
Act, 1964 (XXXV of 1964)--
—S. 5 & Sched.-Muslim Family Laws Ordinance, 1961 (VIII of 1961),
S. 9« Right
of children to maintenance-Children has the right to be protected and be provided for in that, their legal
capacity being defective, parent's obligation
is to protect and take steps to help/develop potential of children-Such right
in fact vests in child right from the development of fetus in the womb-Record would indicate that
maintenance allowance was fixed by
Court after taking into consideration status and financial position of
father-Enhancement of maintenance allowance by Appellate Court was also
warranted in terms of parties financial position-Maintenance allowance as determined
by Appellate Court does not call for interference by High Court-Order of Appellate Court in fixing allowance of minor child was, thus, maintained by
High Court.
[P. 1861] B, C
PLD
1967 Kar. 612; NLR 1991 S.D. 347;
PLD 1976 AJK 9; PLD 1958 Lah. '
596; 1991 CLC 766;
1991 SCMR 1273; 1990 CLC 1983; PLD 2000 FSC 1;
1990
MLD 344; 1994 MLD 574; PLD 1958 Lah. 596; Baillie 234;
1970 SCMR
845; PLD 1981 SC 460;
PLD 1992 SC 595; PLD 2000 FSC (March part) PLD
1994 SC 607; 1987
SCMR 518; Hamilton's Hedaya, 1957 Ed. P. 142; Ameer
All's Digest of Muhammadan Law P. 142.
Zafar Iqbal
Khan, Advocate
for Petitioner.
Mr. Muhammad Saleem Ch,,
Advocate for Respondent.
Respondent in person.
Date of hearing: 8.6.2000.
judgment
The brief facts of
the instant Writ Petition are that the petitioner married with the
Respondent No. 1 at Chiniot, Tehsil
& District Jhang on 21.10.1994. Maste
Usama, son was born on 26.9.1995 out of the wedlock. The marriage broke up through an irrevocable
divorce deed dated 12.2.1998. The
Respondents Nos. 1 and 2 filed a suit for the grant of maintenance allowance on 10.3.1998 in the Court of learned
Family Court Judge, Lahore. A suit
for the recovery of dower amount was also filed by the Respondent No. 1. Both the suits were contested by the
petitioner. The suits were consolidated and consolidated issues were framed on
20.3.1999. After recording the evidence of the parties the learned
Family Court Judge vide a single
consolidated judgment and decree dated 5.7.1999 allowed past maintenance
allowance to the Respondent No. 1 at the rate of Rs. 10,000/-per month from
September, 1995 to 6.12.1998 plus the period of'Iddat"
Le. three months. The total maintenance amount came to the
tune of Rs. 4,20,000/- and Rs.
1,500/- per month was fixed as past maintenance allowance for Respondent
No. 2 minor from September, 1995 to July, 1999 which came to the tune of Rs. 63,000/-. The Respondent No. 2 was also allowed future maintenance allowance at the rate
of Rs. 3,000/- per month with 10%
annual increase till rising of any legal disability. It was further ordered that Rs. 15.000/- which were paid by the
petitioner to the respondents in
lieu of maintenance allowance shall be adjusted from the past maintenance allowance of Respondent No. 1.
Being aggrieved from
this judgment and decree the petitioner filed two separate appeals before the learned
District Judge, Lahore. The Respondent No. 2 minor also filed an appeal for
enhancement of quantum of maintenance.
All the three appeals were heard together and disposed of vide a consolidated judgment and decree dated 8.4.2000.
The two appeals filed by the
petitioner were dismissed and the minor's appeal was accepted and the quantum
of maintenance was enhanced from Rs. 3,000/- to Rs. 5,000/- per month. Both the
judgments and decrees are now assailed in the instant writ petition.
2. The learned counsel
for the petitioner has argued that under Article 2-A of the Constitution, the
maintenance is to be decided according to the Muslim Law. Under the Muslim Law there is
no scope for grant of past maintenance to the wife and child. The learned Judge
Family Court as well as the
learned Appellate Court had no jurisdiction to grant past maintenance to the Respondents Nos. 1 and 2 for the period
from September 1995 to 10.3.1998 when the suit was filed. The impugned judgment
and decree of both the learned Courts
below are against the injunctions of Islam and therefore are illegal. He
relied on Habib Bank Ltd. vs. Muhammad Hussain etc. (PLD 1987 Kar. 612)
where it is held that Article 2-A of the Constitution of Pakistan, 1973 is to construe and enforce
existing Laws with such adaptations
as are necessary in the light of Holy Qur'an and Sunnah.
He also attracted the attention of
this Court to Section 5 of the Family Courts Act, Schedule Section 20 and Section 278 of the Muhammadan Law and in this matter relied on Syed HamidAli Shah vs. Mst. Razia Sultana (NLR 1991
SD 347) where it is held that Maintenance to wife under Islamic Law - There is
no scope for grant of past maintenance to wife. Relied on Mst.
Maryam Bibi etc. vs.
Muhammad Iqbal and others (PLD 1976 AJ&K 9)
where it is held that past maintenance,
under Hanifi School of Law, not being permissible and available only from the date of application or
suit. Relied on Mst. Ghulam Fatima vs. Sh, Muhammad
Bashir (PLD
1958 (W.P.) Lah. 596) where it is held that past
maintenance cannot be claimed from father unless previously fixed by
parties. Further relied on Syed Hamid All vs. Mst. Razia Sultan (1991 CLC 706) where it is held that pftst and future maintenance could not be granted to
the minor, when application of father for custody of the minor being pending before the learned Guardian Judge, future maintenance
till the decision of application of father could be granted to the minor, the petitioner pronounced "Talaq" thrice in one sitting and sent the written divorce deed dated 12.2.1998 to the
Respondent No. 1. This irrevocable
divorce became effective immediately on its execution in view of Section 313 of Muhammadan
Law which reads "Divorce in writing operates an irrevocable divorce and takes effect
immediately on its execution". Section 7 of the Muslim Family Law Ordinance 1961 providing for the
effectiveness of "Talaq" on
receipt of notice by the Chairman is against the injunctions of Qur'an and Sunnah.
Relied on Allah Dad vs. Mukhtar and another (1991
SCMR 1273) where it is held that divorce becomes effective even in the absence of notice to the Chairman under Section
7. Ineffectiveness of divorce, in the absence of a notice to the
Chairman, as envisaged by Section 7 was against
the injunctions of Islam. Further relied on 1990 CLC 1983, Mirza
Qamar Raza vs. Mst. Tahira Begum and others (PLD
1988 Kar. 169) and Allah Rakha etc. vs. Federation of Pakistan etc. (PLD 2000
FSC 1) where it is declared that Sections
7(3)(5) of the Muslim Family Laws Ordinance, 1961 are repugnant to Islam. Learned counsel for the
petitioner further argued that
divorce dated 12.2.1998 was effective when it was written and sent to the
Respondent No. 1 who filed a suit for the recovery of maintenance on 10.3.1998 which was not maintainable. Section 278
of the Muhammadan Law reads that if the husband refuses to maintain his wife without any lawful
cause, the wife may sue him for maintenance but she is not entitled to a decree for past maintenance, unless claim is
based on a specific agreement. He
further argued that the suit for maintenance by a divorced wife is not maintainable. Relied on 1990 MLD
344. The learned .counsel for the petitioner contended that the suit for maintenance filed by the minor
child was not maintainable as there was no refusal or neglect on the part of
the petitioner as father to maintain
his child. The Respondent No. 1 had admitted
in her evidence that the petitioner had paid her Rs. 15,000/- as maintenance allowance for the child after his
birth and that • the gold ornaments weighing 40 Tolas
were also given to her by fhe petitioner at the time of marriage. In this way the learned Court
below had failed to take note of these material admissions of the Respondent
No. 1 the petitioner had filed a
custody application which is still pending before the learned Guardian Judge.
The Respondent No. 1 had removed the minor from the constructive custody of the petitioner and she has lost right
of "Hazanat" and therefore, the
petitioner as such is not entitled to pay the maintenance allowance to the
minor through his divorced mother. Even otherwise the impugned judgment suffers from non-reading of material evidence on
record. The documentary evidence is
Exh.D-1 to Exh.D-7 and Mark-D and E were material for ascertaining the
financial position of the petitioner. Both the learned Courts below have arbitrarily proceeded to decide the
important question of quantum of maintenance without first ascertaining
the financial position and annual income of
the petitioner. Relied on Zahid Hussain Dar vs. Ahmad Shaukat Dar
and others (1994 MLD 574) where it is held that determination of rate of maintenance payable by the father to
his son without determining monthly income of father and without taking
into consideration evidence on record is
illegal and liable to be set aside. Further relied on PLD
1958 (W.P.) Lah. 596 where it is held that past maintenance cannot be claimed from father
unless maintenance is previously fixed by the Court. Relied on 1991 CLC 766 where it is held that past maintenance
cannot be granted to the minor, but
application of father for custody of minor being pending before the learned Guardian Judge, future maintenance
till the decision of application
could be granted to the minor, therefore, both the judgments be set aside.
3. The learne,d counsel for the respondents submits that in writ jurisdiction the
concurrent findings of fact arrived at by both the learned Courts below cannot
be disturbed. Moreover, the quantum of maintenance is determined according
to the status and financial position of the petitioner who is a well off, Zimindar and landlord and there is ample
documentary evidence on record which shows that the plaintiff is in ownership of
large agricultural
property and even if the same is pledged with the bank, this shows that somehow or
the other the petitioner has obtained financial benefits from the bank against his mortgaged property and
has invested this money in some business. He has got the latest car and is
married again. The judgments and decrees of
the learned Courts below are based on sound reasoning and due appraisal of the evidence.
4. I
have heard the learned counsel for the parties and have perused the record.
5. From the very start the first objection taken by
the learned counsel for the petitioner
that marked tendency of superior judiciary in
Pakistan is to apply Islamic Law where statutory Law is silent. Under such circumstances the matter is left to Court's discretion. Relied an Haji Nizam
Khan vs. TheAddl. District Judge, Lyallpur and others (PLD 1976 Lah. 930). According to the arguments advanced by the learned counsel for the petitioner under Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973, matter of maintenance is to be decided according to Muslim
Law and under Muslim Law there is noscope for grant of past maintenance to wife and child. This argument advanced by the learned counsel for thepetitioner was discussed in Saleem Ahmad vs. Khadija Begum and 2 others (PLD 1977 Kar. 469 (D.B.)) where it is held that proceedings to enforce a right to maintenance under Sections 5 & 7 of the Family Courts Act are quite distinct and different from these under Section 488 Cr.P.C. Pleadings filed before the Family Judge invested with powers of Magistrate 1st Class without specifying whether same was a suit under Section 7 of the Family Courts Act or an application under Section 488 Cr.P.C. cannot be held to be proceedings both under Section 20 of the Family Courts Act as well as under Section 488 Cr.P.C. Family Court Judge cannot entertain application under Section 488(3) Cr.P.C. in the absence of an order under Section 488(1) Cr.P.C. Further held that the proceedings to enforce a right for maintenance under Section 5 read with Section 7 of the Act and under Section 488 Cr.P.C. are quite distinct and different in nature, as the former are civil and the latter are criminal or quasi-criminal and the consequences of non- compliance of a decree passed under Section 12(2) of the Act and an order passed under Section 488 Cr.P.C. are also quite distinct and different. This was further discussed in Mst. Razia Begum vs. Mst. Sardar Begum and others (PLD 1978 Lah. 696) where it was held that the petitioner's application for future and past maintenance against husband was entertained by the Family Court as a suit under general law in his capacity as a Family Court and not under Section 488 Cr.P.C. as a Magistrate or Civil Court and (Family Court) judgment is not vitiated for lack of jurisdiction. This issue was finally set at naught.
Pakistan is to apply Islamic Law where statutory Law is silent. Under such circumstances the matter is left to Court's discretion. Relied an Haji Nizam
Khan vs. TheAddl. District Judge, Lyallpur and others (PLD 1976 Lah. 930). According to the arguments advanced by the learned counsel for the petitioner under Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973, matter of maintenance is to be decided according to Muslim
Law and under Muslim Law there is noscope for grant of past maintenance to wife and child. This argument advanced by the learned counsel for thepetitioner was discussed in Saleem Ahmad vs. Khadija Begum and 2 others (PLD 1977 Kar. 469 (D.B.)) where it is held that proceedings to enforce a right to maintenance under Sections 5 & 7 of the Family Courts Act are quite distinct and different from these under Section 488 Cr.P.C. Pleadings filed before the Family Judge invested with powers of Magistrate 1st Class without specifying whether same was a suit under Section 7 of the Family Courts Act or an application under Section 488 Cr.P.C. cannot be held to be proceedings both under Section 20 of the Family Courts Act as well as under Section 488 Cr.P.C. Family Court Judge cannot entertain application under Section 488(3) Cr.P.C. in the absence of an order under Section 488(1) Cr.P.C. Further held that the proceedings to enforce a right for maintenance under Section 5 read with Section 7 of the Act and under Section 488 Cr.P.C. are quite distinct and different in nature, as the former are civil and the latter are criminal or quasi-criminal and the consequences of non- compliance of a decree passed under Section 12(2) of the Act and an order passed under Section 488 Cr.P.C. are also quite distinct and different. This was further discussed in Mst. Razia Begum vs. Mst. Sardar Begum and others (PLD 1978 Lah. 696) where it was held that the petitioner's application for future and past maintenance against husband was entertained by the Family Court as a suit under general law in his capacity as a Family Court and not under Section 488 Cr.P.C. as a Magistrate or Civil Court and (Family Court) judgment is not vitiated for lack of jurisdiction. This issue was finally set at naught.
Mst. Hajran Bibi vs. Abdul Khaliq (PLD 1981 Lah. 761) where it
is held
that according to Islamic injunctions it is the obligation of a husband to maintain his wife
till she disobeys him and does not live apart without any good cause and cogent reasons and that being
so a husband is obliged to pay even the arrears of maintenance if not paid during the
subsistence of the marriage if the wife has not given dny cause
for their non-payment and if an obligation under the law has not been
fulfilled for sometime by paying the maintenance, how a husband can be absolved
of his responsibility to fulfil that obligation even
at a later stage as such the arrears of maintenance would be considered
to be a debt upon the husband who is liable to pay the same even in the
absence of any agreement or a decree in favour of the
wife. According
to Islam a wife has only to show the case for payment of maintenance allowance that she has been
neglected by her husband for such and such
time and has not been paid maintenance without any fault or reasons. If it is
found that the husband has been negligent in maintaining her in spite of being obliged under the law to do
so then the wife would be entitled not only to future maintenance but
even to past maintenance for the period
during which she has not been maintained. In this case the reliance was
placed upon a digest of Muhammadan Law by B.E.
Baillie, page 100. According to Baillie
"a wife when she has placed herself in the power of her husband, is
entitled to her maintenance day by day, and if he refuses to give, it, and the day passes, her right is confirmed;
and so on for other days in succession,
although the Judge had neither fixed the amount, nor made any order in her favour. It
was further held in this judgment that effect of the provisions as contained in Sections 5 and 20 of the
West Pakistan Family Courts Act, 1964, upon the provisions of Section 488 Cr.P.C has been considered in detail in Adrian Afzal vs. Sher Afzal (PLD 1969 S.C. 187) where it is held that
a comparison of provisions of Section 488, Cr.P.C.
and Sections 5 and 20 of the West Pakistan
Family Courts Act 1964J indicates that
the provisions of West Pakistan Family Courts Act are of a more beneficial nature which enlarge not only the scope
of the enquiry but also vest the
Court with powers of giving greater relief to the aggrieved and also a right
of appeal. Therefore, explicitly the combined affect of Section 5 and Section 20 of the Family Courts Act clearly and
exclusively gives jurisdiction to the
Family Courts with regards to the matters in the Schedule without curtailing or diminishing rights already possessed
by a litigant. The Family Court has
now exclusive jurisdiction to entertain, hear, or adjudicate upon the matter relating to maintenance. Mst. Razia Begum vs. Mst. Sardar Begum and others (PLD 1978 Lah. 696), Saleem Ahmad vs. Mst. Khadija Begum
and 2 others (PLD 1977 Kar. 469) and Muhammad Yousuf
vs. mst. Nafisa Khatoon and another (PLJ 1978 Kar.
404) it is held that the Family Court
has jurisdiction to grant past maintenance to a wife on her suit filed under Section 5 of the Act of 1964. The definition
of maintenance in Islam is Nifka. In the
language of law it signifies all those things which are necessary to the support of life, such as food, clothes and
lodging. The subsistence of the wife is incumbent upon her husband. When a
woman surrenders herself into the
custody of her husband, it is incumbent upon him thenceforth to supply
her with food, clothing and lodging, whether she be a Mussalman
or an infidel, because such is the precept
in Holy Qur'an. Such an obligation arises
from the moment the wife is subject to the moral control and in certain cases for a time even after it is
dissolved. "A wife must be accommodated
with a separate apartment. "It is incumbent upon
a husband to provide a separate
apartment for his wife's habitation, to be solely and exclusively
appropriated to her use, so that none of her husband's family, or others, may enter without her permission and
desire, because this is essentially
necessary to her, and, is therefore, her due the same as maintenance for
the word of God appoints her a dwelling house as well as a subsistence, and as it is incumbent upon a husband
to provide a habitation for his wife
under the control of her husband". Reproduced From Hedaya by Hamilton Chapter XV Page 143. Imam Shan
says that the maintenance is in all
circumstances to be considered a debt upon the husband in conformity with his
tenet. Therefore, the first contention raised by the learned counsel for the petitioner stands repelled by the aforesaid
legal and Islamic precedents.
6.
The
next contention of the learned counsel for the petitioner that divorce
in writing operates
an irrevocable divorce
and takes effect immediately on its execution. Section 7 of the Muslim Family Laws Ordinance 1961 providing for the effectiveness of
Talaq on receipt of notice by the Chairman is against the injunctions of
Qur'an and Sunnah.
7.
A Talaq may be
in writing or by word of mouth and no particular form is necessary. Under Sunni Law
where a husband reduces the Talaq in writing and in clear
words mentions the name of the lady whom he has divorced it constitutes a valid
divorce a Talaqnama in writing is a
record of the
fact of an oral Talaq or it may be the
deed by which the divorce is effective.
It may be executed in the presence of Kazee
or of the wife's father or of other witnesses.
It must disclose a clear intention that the marriage stands terminated but in the case of the oral Talaq communication is necessary for the purpose of dower maintenance or
a woman's right to pledge her
husband's credit for means of subsistence. A Talaq
becomes irrevocable in Ahsan mode on the expiry of Iddat.
A Talaq in the Hasan
mode becomes
irrevocable and complete
on the third pronouncement irrespective of the Iddat.
A Talaq in the Badai
mode becomes irrevocable immediately
on its pronouncement irrespective of Iddat.
It is called Talaq-i-
Bain i.e. irrevocable Talaq. Under Section 313 of Muhammadan Law in the absence of word showing a different intention a divorce in writing operates as an irrevocable divorce (Talaq-i-Bain) and takes effect immediately on its
Bain i.e. irrevocable Talaq. Under Section 313 of Muhammadan Law in the absence of word showing a different intention a divorce in writing operates as an irrevocable divorce (Talaq-i-Bain) and takes effect immediately on its
8.
Now the question about Sections 7(1) & (3) of the
Family Laws Ordinance 1961 is concerned there are judgments i.e. Abdul Manan vs.Safuran Nessa [(1970 S.C.M.R. 845
(DB)] where it is held that notice of divorce given to Chairman, Local Union Council, divorce not
effective. Mst.Ghulam Fatima vs. Abdul Qayyum
and others (PLD 1981 S.C. 460)
where it is held that Talaq in
circumstances not a voluntary act, case being not one of mutual consent, wife having not filed suit for
dissolution by way of Khular and husband having died - held,
Talaq did not become ineffective but 31 and 230 of the Constitution of
Pakistan. The Apex Court in the case of Hakam
Khan reported in PLD 1992 SC 595 held "The primary duty of the Court is to adjudicate by reference to positive
law in a manner to lend certainty,
clarity and precision to the application of law to concrete questions of law and fact necessarily required to be decided."
In the case of Allah Rakha reported in (PLD 2000 FSC (March Part) relying
upon the case of Dr. Mehmood-ur-Reman Faisal (PLD 1994 S.C. 607) the Full Bench had reiterated the proposition
that "only by reasons of being codified or statute law and applicable exclusively to the Muslim population of the Country,
a law would not fall in the category
of Muslim Personal Law unless it is also shown to be the Personal Law of
a particular sect of Muslims based on the interpretation of Holy Qur'an and Sunnah. Article 2-A of the Constitution of Pakistan -
Objectives Resolution as given in Article 2-A is not just another Constitutional provision and, even if it were so,
all Constitutional provisions do not
carry equal status. It was further enunciated that Article 268 needs not be applied at all in case of enforcement of
Article 2-A. The judgment of the
Federal Shariat Court PLD 2000 FSC 1 is under appeal
before the Hon'ble Supreme Court. However, the basis of Islam is
Qur'an, Sunnah, Ijmah
and Ijtehad where there is only a Hakam then the rest is left to the Ijmah
to interpret in what manner it is to be implemented. It is the duty of the Kazee to interpret and define the law. Therefore, unless
and until the Legislature expresses
its intention to amend a statute, the statute will remain under
protection of the Article 268 of the Constitution of Pakistan, which says except as provided by this Article all
existing law shall subject to the Constitution continue in force so far as
applicable and with the necessary adaptation,
until altered or amended by the appropriate Legislature.
Malik Javid
Ali vs. Abdul Kadir and another (1987 SCMR 518) where it is held that requirement of
provision of Section 7 is to be observed for
determining the Marital status of the parties, whether it is the same or is changed through pronouncement of Talaq.
Alqaim-ul-Islam
vs. Mst. Hussain Bani and 4 others (PLD 1976 Lah. 1466) where it is
held that Talaq not effective even
after 90 days if any one of such conditions not satisfied.
9. Unless and until the Hon'ble
Supreme Court pass any judgment over
the judgment of the Federal Shariat Court (PLD 2000
FSC 1) Sections 7 & 8 of the Family Laws Ordinance will remain applicable
under protection of Article 268 of
the Constitution of Pakistan. The defendant appeared as DW.-l. He has stated in examination-in-chief that
he divorced the plaintiff on
26.8.1998 and the divorce is Mark-A. The divorce deed Mark-A shows its date i.e. 12.2.1998. In the written
statement he has averred that the divorce has become effective on 26.8.1998.
10. The learned Family Court Judge has decreed the
suit filed by the plaintiff and held her entitled to recover maintenance
allowance at the rate of Rs.
10.000/- per month from September, 1995 to 6.12.1998 plus three months for "Iddat" period which is worked out as Rs.
4,20,QOO/-. The other 18contention of the
learned counsel for the petitioner that a divorced wife cannot claim past
maintenance is also without substance.
"2: 236- The Holy Qur'an.-lt
shall be no offence for you to divorce your wife before the marriage is
consummated or the dowry settled. Provide them with fairness, the rich man
according to his means and the poor man according to his. This is binding on
righteous."
It is really remarkable in Islam that as soon
as two sui juris persons enter mto contract of marriage
so many rights are created but as soon as the marriage is dissolved, those rights
will continue according to the injunctions of Holy Qur'an. It is also held in Sardar Muhammad us. Naseema
Bibi and others (PLD 1966 (W.P.) Lah.
703) held that wife can justly claim maintenance from the date of accrual of cause
of action and not necessarily from the date of first seeking redress. In this case it
was argued that "in the absence of an agreement between the spouses or a
decree by the Kazee, a Muslim wife is not entitled to a decree
for past maintenance". The High Court while pointing out the difference
between dower and maintenance, held, that the husband's obligation to maintain his wife
commences with the performance of marriage subject to certain conditions. The marriage in
Islam being
in the nature of a contract, dower is the consideration agreed between the
parties which the husband has to pay to the wife either promptly or subsequently in
accordance with the terms of the agreement. On the contrary, maintenance
is an obligation which is one of the essential ingredients of marriage, liable to
suspension or forfeiture under certain circumstances. The obligation of the husband
to maintain his wife has been derived from an earlier verse No. 232 of the Sura Albaqra which
enjoins upon
the father of a suckling child to feed and clothe his wife. In
Mst. Gull Bibi
us. Muhammad Saleem and another (PLD
1978 Quetta 117) it is held that marriage in Islam not in nature of sacrament or
religious right but a pure and simple contract. Duty is cast upon husband to
provide his wife with maintenance, therefore, past
maintenance can be claimed by wife and granted according to law. Relied on Hamilton's
Hedaya, 1957 End., Page 142; Syed Amir Ali's Digest on Mahomedan
Law; D.F. Mullah's Mahomedan Law; Fataw-e-Kazee Khan relating to Muhammadan Law. Vol. 1, 1977 Edn. And Fatawa-e-AIamgiri, Vol. II Page
689, PLD 1972 S.C. 302 and PLD 1966 Lah. 703.
11. The third contention put forward by the
learned counsel for the petitioner that minor is also not entitled to past
maintenance is totally without substance. Qur'an specifically enjoins the
parents about their children - Chapter 4 Al-Nisa
Verse No. 11. Even though parents are mentioned as heirs but significantly the Verse
starts with a stress on the obligation of the parents towards their progeny. This is
further supported by the commandment contained in Chapter 6, Verse 151
and Chapter 17 Verse 31 where the parents are warned not to kill (Physically and metaphorically) the
progeny for fear of poverty because Allah has assumed the responsibility of
providing for the needs of the parents as well as their
, so far as the arguments on merits are concerned, the consolidated judgment
of suit for the recovery of maintenance allowance and the suit for the
recovery of dower money shows that the learned Family Court Judge has given
the issuewise finding after discussing the complete evidence on record.
The respondent/plaintiff demanded Rs. 25.000/- per month as maintenance
allowance while the learned Family Court Judge keeping in view the evidence produced
by the plaintiff and the defendant and Exh.P.3, P. 4, P. 5 record of rights and Khasra
girdawri showing ownership of the
petitioner/defendant and that he had admitted in evidence that he had purchased Toyota Corolla Motorcar for the
convenience and facility of theplaintiff at the time
of marriage. The learned trial Court has rightly decided the issue in favour of the plaintiff. The judgment is based on cogent
reason and due appraisal of evidence
on record. The Nikahnama which is
Exh.P.A-1 shows the dower amount as
Rs. 5.000/- and "Gher Moajjal"
Rs. 1,00,000/- and the Nikah is admitted by the
defendant. The entries in the column of Nikah
are now where challenged. The plaintiff/Respondent No. 2 is born on 6.11.1995 out of the wedlock and the Birth
Certificate is Exh.D. 1. Theplaintiff has produced on record Exh.P.
2, which are the expenses in the Grammer School where the minor is studying. Exh.P. 4 is the record
of rights where the defendant is shown to be the owner of 141 Kanals in Khata Nos. 38, 39 and 143 and Khata
Nos. 147-7, 212 and 58. Exh.P. 5 is again thecopy of record of rights in respect of 193 Kanals 12 Marias in the ownership rights
of the defendant. The record of rights for the year 1993-94 shows the share of the defendant's property as pledged. All these documentary proof show
that the plaintiff has sufficient agricultural property and even if the property is pledged he has gained an amount from
the bank'against his property. He has
also admitted in evidence as DW that he has given 40 Tolas gold
jewelry to the respondent/plaintiff at the time of wedding and that he isowner of 3^ Squares of land IT Acres is uncultivated and
the property is joint property and that he has taken a loan of Rs.
9,00,000/- against his agricultural
land and Rs. 1,00,000/- from the Society Bank and his annual income is Rs. 85,000/- to Rs. 90,000//- and he
gives the instalments of tractor and land revenue. He has stated that he
gives the maintenance of Rs.
7000/8000 to his wife.
PW. 1 is Sher Zaman. He has stated on oath
that he has solemnized the Ni^ah of the
parties. He filled up all the column of and Rs. 1,00,000/- as
"Gher Moajjal".
He in cross examination has stated that he handed over both the Parts of Nikah to the father of the plaintiff. The columns were got filled
by his person on his asking. The name of the person is Ghulam Muhammad and Exh.P. 1
dated 2.10.1998 bears his signatures.
14.
PW. 2 is Humera.
She stated that she is married with the defendant on 24.5.1994 and remained in his
house for one year. She has a child.
His name is Usama. The defendant left her in her
house before the birth of the child and did
not come back to see his child. The "Haqul Mahr" was
fixed as Rs. 5,000/- "Moajjal" and
Rs. 1,00,000/- as "Gher
Moajjal" and that his father in law owns 65 squares of land and his child studies in Grammer
School. Ex.P. 2 is the fee and
she should be given Rs. 25,000/- to Rs.
30.000/- as maintenance allowance and that the defendant has divorced her during the pendency of the suit and he has
contracted a second marriage. She was
cross examined at length and in cross examination volunteered that the defendant has a good car,
house and is well off and all their
children study in a very good school in Jhang. She is
supported by PW Ikram-un-Nabi and PW. 4 Col. Khuda Bakhsh and the veracity of
their statement does not stand
shattered. After perusing the complete evidence on record, the judgment and decree passed by the
learned Family Court Judge and that
of the learned Appellate Court whereby the maintenance allowance of the minor is enhanced does not need any
interference by this Court,
therefore, the Writ Petition is dismissed.
therefore, the Writ Petition is dismissed.
15.
The connected Writ Petition No. 7763/2000 has already
been decided
vide separate order dated 4.5.2000 reading the recovery of dower.
16. No order as to costs.
(A.A.)
Petition dismissed.
