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Petitioner: MUHAMMAD ASAD VS Respondent: Mst. HUMERA NAZ and others
Court Name: Lahore High Court Judge(s): Fakhar-un-Nisa Khokhar Title: MUHAMMAD ASAD vs Mst. HUMERA NAZ and others Case No.: Writ Petition No,7755 of 2000 Date of Judgment:2000-06-08 Reported As: 2000 CLC 1725 Result: Writ dismissed.
JUDGMENT
JUDGMENT ' The brief facts of the instant writ petition are that the petitioner married with the respondent No,1 at Chiniot, Tehsil and 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" i,e, three months. The total maintenance amount came to the tune of Rs,4,20,000 and Rs,15,000 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
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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 2A 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. v. Muhammad Hussain and others PLD 1987 Kar. 612, where it is held that Article 2A 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 Mohammadan Law and in this matter relied on Syed Hamid Ali Shah v. Mst. Razia Sultana 1991 CLC 766, 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 and others v. Muhammad Iqbal and others PLD 1976 Azad J&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 v. 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 Ali v. Mst. Razia Sultan 1991 CLC 766, where it is held that past 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 Mohammedan Law which reads "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. Relied on Allah Dad v. 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 v. Mst. Tahira Begum and others PLD 1988 Kar. 169 and Allah Rakha and others 'v. Federation of Pakistan and others PLD 2000 FSC 1, where it is declared that section 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 Mohammedan 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 the 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
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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 Marks "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 v. 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 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 learned 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, Zamindar 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 the circumstances the matter is left to Court's discretion. Relied on Haji Nizam Khan v. The Additional District Judge, Lyallpur and others PLD 1976 Lah. 930. According to the arguments advanced by the learned counsel for the petitioner under Article 2A 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 no scope for grant of past maintenance to wife and child. This argument advanced by the learned counsel for the petitioner was discussed in Saleem Ahmad v. 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 and 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 noncompliance 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 v. Mst. Sardar Begum and others PLD 1978 Lah. 696, where it was held that the petitioner's application for future and past maintenance against
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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 v. 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 any 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 cause 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 Mohammedan Law by B.E. Baillie, page 100. According to Bailie "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 Adnan Afzal v. Sher Afzal PLD 1969 SC 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, 1964, 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 v. Mst. Sardar Begum and others PLD 1978 Lah. 696, Saleem Ahmad v. Mst. Khadija Begum and 2 others PLD 1977 Kar. 469 and Muhammad Yousuf v. 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 far 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,
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Chapter XV, page 143, Imam Shafi 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-iBain i,e, irrevocable Talaq. Under section 313 of Mohammadan 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 execution. Baillie 234. 8. Now the question about section 7(1) and (3) of the Family Laws. Ordinance, 1961 is concerned there are judgments i,e, Abdul Manan v. Safuran Nessa 1970 SCMR 845 (D.B.), where it is held that notice of divorce given to Chairman, Local Union Council, divorce not effective. Mst. Ghulam Fatima v. Abdul Qayyum and others PLD 1981 SC 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 Khula' and husband having died - held, Talaq did not become ineffective but revoked for reason of no notice having been given by the husband under section 7(1) of the Ordinance. Muhammad Salah-ud-Din Khan v. Muhammad Nazir Siddiqi and others 1984 SCMR 583, where it is held that Talaq would become effective only after notice of Talaq given to Chairman and period of three months provided for bringing out a reconciliation between the parties expired. Husband when does not give a notice of Talaq to Chairman, it can be deemed that he has revoked Talaq. No notice of Talaq given by husband to Chairman as required by section 7(1). In view of express provisions of section 7(3) Talaq was yet to become effective. Ziaur ,Rehman v. The State PLD 1986 Lah. 428 (Full Bench), where it is held that in an ideological Islamic State members of the judiciary are called upon to interpret and enforce Divine Laws as delegates of the Shari or any other manmade law enacted within the prescribed limitations and are under an obligation to dispense justice in accordance with the same. A statute is declared void only if it is repugnant to the Constitution and is unjustifiable and preambulatory provision. Ijaz Haroon v. Inam Durrani PLD 1989 Kar. 304. This judgment directly reflects the application of sections 7 and 8 of the Muslim Family Laws Ordinance (VIII of 1961). It is held that unless due sanction is spelled out to interpret and to apply the tenets of Muslim Law and evolutionary process is allowed to be undertaken and what better institution can there be for that purpose than the judicial component of the State, with ample room for trial and error, the latter of course correctable at the level of the higher echelons or that of the Legislature, Muslim Law can never assume the character of the dynamic force which Almighty Allah wills it to be. There will, in such exercises, be errors and pitfalls but the corrective process of
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ultimate judicial dispensation and the appropriate legislative measures can always be counted to suppress the mischief and to advance the objectives. This will, in addition, be possessed of the advantages of evolutionary elements and relieve the society of abruptness and suddenness, not uncommonly, associated with legislation alone, taken in isolation. Muslim Family Laws Ordinance (VIII of 1961) = sections 7 and 8 of the Ordinance are valid - intention of Legislature, in codifying section 7 of the Ordinance was to abolish Talaq-e-Bidat and legislate Islamic provisions pertaining to two forms of Talaq-us-Sunnat viz. Talaq Ahsan and Talaq Hasan as far as may be - Legislative machinery, however, had not fully succeeded in doing so and Ordinance, being an "existing law" in terms of Article 260 of the Constitution read with Article 268(7), adaptations could be construed therein D - Court should be extremely slow in according restricted meanings to sections 7 and 8 of the Ordinance and brooking the defeat of the objectives of law on account of any technicalities and procedural flaws in the legislation Necessity of amending the law desired accordingly. Article 2A of the Constitution of Pakistan had been incorporated into the Constitution of Pakistan as a substantive clause since 1985. The fourth clause of this Article contemplates that the Muslims shall be enabled to order their lives in the individual and collective sphere in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah. Previously it was a part of the preamble of the Constitution and was also enacted in Articles 31 and 230 of the Constitution of Pakistan. The Apex Court in the case of Hakam Khan reported in PIA 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 1 (March Part) relying upon the case of Dr. Mehmood-ur-Rehman Faisal PLD 1994 SC 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 2A of the Constitution of Pakistan - Objectives Resolution as given in Article 2A 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 need not be applied at all in case of enforcement of Article 2A. The judgment of the Federal Shariat Court PLD 2000 FSC 1 is under appeal before the Honourable 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 laws 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 v. 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 v. 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 Honourable Supreme Court pass any judgment over the judgment of the Federal Shariat Court (PLD 2000 FSC 1) sections 7 and 8 of the Family Laws Ordinance will remain applicable under protection of Article 268 of the Constitution of Pakistan. The defendant appeared as D.W.1. 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.
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10. ' The learned Family Court…
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