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Petitioner: Shahab Saqib VS Respondent: Sadaf Rasheed, etc
Court Name: Islamabad High Court Judge(s): Babar Sattar Title: Shahab Saqib vs Sadaf Rasheed, etc Case No.: Writ Petition No. 2355 of 2015 Date of Judgment:2021-05-03 Reported As: KLR 2022 Civil Cases 45, 2021 [M] CLR 1530 Result: Dismissed
Judgment JUDGEMENT BABAR SATTAR, J.--- The petitioner is aggrieved by judgment and decree dated 31.01.2015, whereby the learned Additional District Judge (ADJ) upheld the ex-parte judgment and decree of the learned Judge Family Court to pay maintenance in the amount of Rs.2,000/- per month for the benefit of respondent No.2 from the date of her birth subject to increase of 10% per annum and further ordered that respondent No.1 be paid monthly maintenance in the amount of Rs.5;000/- from the date of filing of the suit till such time that the parties either decide to live together or divorce, and 5 Tola gold ornaments as part of her dower . 2. Brief facts of the case are that respondent No.1 filed a family suit on 19.09.20 08 which was decided ex-parte against the petitioner on 31.03.2009. The petitioner while seeking the setting aside of ex-parte judgment and decree passed by the teamed Judge Family Court came to know that respondent No.1 had tiled an appeal against it and that an ex-parte judgment and decree had been passed by the learned appel late Court. The petitioner moved an application for setting aside of the judgment and decree passed by the learned ADJ which was allowed and the ex-parte judgment and decree was set aside by order dated 02.06.2014, after which the learned &DJ passed the impugned judgment and decree dated 31.01.2015. 3. Learned counsel for the petitioner stated that the impugned judgment and decree suffer from material illegality as after setting aside the ex-parte judgment and decree, the matter should have been remanded back to the Family Court to provide an opportunity to the petitioner to file a written statement on the basis of which issues should have been framed to uphold the rights of the petitioner under Article 10A of the Constitution. He submitted that the impugned judgment and decree has been passed in breach of mandatory procedure prescribed under the West Pakistan Family Court Act, 1964. He relied on Bashir Hussain Shah v. Mujeeb Ahmed Khan (2012 SCMR 1235 ) and Mst. Parveen Akhtar v. Subash Chandar (2016 MLD 1596 ). The learned counsel further submitted that given that respondent No.1 was a working woman, she was not entitled to any maintenance. And further that when a wife
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is not living with her husband she is not entitled to be maintained by the husband and placed reliance on Mukhtarul Hassan Siddiqui v. Judge Family Court, Rawalpindi (1994 CLC 1216 ). The learned counsel further stated that now that the petitioner and respondent No.1 are divorced, the petitioner is willing to settle his dispute with respondent No. 1 by paying Rs.500,000/- as dower to respondent No. 1 and is also ready to pay for the maintenance of his daughter/respondent No.2. 4. Learned counsel for the respondent, on the other hand, stated that the ex-parte orders passed by the learned Judge Family Court and the learned ADJ did .not suffer from any illegality . That the petitioner was duly served at the same address that he himself provided in the instant petition and his nonapp earance before the courts was deliberate. He further submitted that in the application moved for setting aside of ex-parte judgment and decree passed by the learned ADJ, the prayer sought by the petitioner was only that the ex-parte judgment and decree dated 13.10.2009 be set aside and there was no prayer seeking the judgment and decree of the learned Family Court to be set aside. That order dated 02.06.2014 through which the learned appellate Court set aside the ex- parte judgment and decree passed by such court and allowed the petitioner to present arguments was never challenged and has attained finality and consequently the petitioner having accepted such order cannot now challenge it through this writ petition. That the petitioner was provided full opportunity to present his case before the learned ADJ and it is settled law that the appeal is continuation of the trial and the petitioner could have taken up any and all grounds in his defence. That after hearing the parties the learned ADJ passed the impugned judgment and decree which suffer from no illegality . That according to the nikhah nama, respondent No.1 was entitled to payment of Rs.500,000/- on demand and 5-tola gold was payable immediately , therefore the said dower was liable to be paid to respondent No. 1 . That the petitioner's conduct is questionable as he has not paid a single penny in lieu of maintenance to even his daughter since her birth for the past eleven years and such conduct disentitles him to any equitable relief in this petition. 5. Learned counsel for the petitioner , in rebuttal, stated that the entire dower i.e. Rs.500,000/- and 5-cola gold was a deferred dower {{URDU TEXT}} and was not required to be paid by the petitioner as claimed by respondent No.1. 6. The questions before this Court are the following:-- 1. Does the impugned judgment and decree suffer from any illegality because the learned ADJ did not remand the matter to the learned Family Court and whether rights of the petitioner to fair trial and due process were breached? 2. Is a wife entitled to maintenance when she is separated from her husband and the spouses are not living together and whether a working woman is entitled to be maintained by her husband? 3. Did the learned ADJ err in holding; that part of the dower was payable on demand? 4. Is the petitioner entitled to discretionary equitable relief?. 7. It is now a settled proposition that a remand order must not be passed as a matter of routine. Proceedings in appeal are a continuation of the trial and to the extent that an appellate court is able to adjudicate the matter before it in view of the record and evidence before it, there arises no occasion to remand the matter to the trial court. The order of remand delays adjudication of the case and execution of the adjudicatory order , and such delay inevitably benefits the party that has an interest in delaying enforcement of the adjudicatory order . There is a growing propensity to dodge service and not appear before the trial court deliberately with the intent to seek adjudication of the matter afresh at the appellate stage on the basis that not doing so will underm ine principles of natural justice and Article 10A. Article 10A requires that due process be afforded to a person whose rights are being determined. But should such person chose not to benefit from due process and elect not to avail the opportunity to be heard, providing such person repeat opportunities would be tantamount to undermining the due process rights of the other persons whose rights and interests are also tied up in the litigation. 8. Let us consider select dicta of the august Supreme Court on the issue of remand. I. In Fateh Ali v. Pir Muhammad (1975 SCMR 221) it was held by the august Supreme Court that if any issues are left undetermined by the first appellate court, the High Court is competent to dispose of the issues and is under no obligation to remand the matter . II. In Nasir Ahmed v. Khuda Bakhsh (1976 SCMR 388), the august Supreme Court held that, "the Civil Procedure Code specifically invests an appellate Court with the same powers as the Court below . There are also provisions in
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Order XLI, C.P.C. to the effect that if there be sufficient material on the record the appellate court may itself decide an issue which has not been determined by the first Court." III. Chairman W apda, Lahore vs. Gulbat Khan (1996 SCMR 230 ) It was held that, "[R] emand of case is not a routine matter nor should it be adopted as a matter of course to allow a party or an authority to fill" in the lacuna or to improve upon the case." IV. In Ashiq Ali vs. Mst. Zamir Fatima (PLD 2004 SC 10 ) The august Supreme Court held that "remand would be ordered in those cases, which could not be decided on basis of available record as the same would be in the interest of justice ... Remand is not made if the defect is due to negligence and default of party desiring remand." V. Shahida Zareen v . lqrar Ahmed Siddiqui (2010 SCMR 1 119) It was held that, "[R]emand of the case should be ordered in exceptional circumstances when it is found -necessary by the appellate court to determine the question of fact which appears to the appellate court to be essential for a right decision of the suit upon its merits." 9. Any person aggrieved by an order or judgment, who has not filed an appeal against such order , can bring his stance before the appellate court through a cross-appeal. Let us consider relevant case law on the mailer:-- I. Khairati and 4 others v . Aleem-ud-Din and another (PLD 1973 SC 295 ). "a respondent, can support a decree even on points decided against him, but a respondent cannot attack a decree or ask for its variation without a cross-objection." II. Ghulam Rasool v . Muhammad Hussain and others (PLD 201 1 SC 1 19) "Respondent could have verbally challenged the findings on any issue going against her at the time of hearing of the respondents appeal while supporting the decree, but it was not legally permissible to assail the decree without cross appeal etc. therefore, such a decree far all intents and purposes which was founded on the findings of the trial Court on Issue No.1 had not only attained finality against her but also the appellants who were/are the successors in interest of the lady ." In the instant ease. after the ex-parte judgment and decree was set aside by the learned ALA, the petitioner chose not to file a cross-appeal against the e5-parte judgment and decree of the trial court. 10. The scope of powers of the appellate court is also well settled by now. Excerpt s from a couple of judgments of the august Supreme Court are as follows:-- I. Fazal Jan v . Roshan Din (PLD 1992 SC 81 1) "The trial court was not denuded of power s to summon all the necessary Revenue Record and also to summon the Patwari so as to supply omissions from both sides. It was also the duty of the two higher appellate courts. It - seems that was an appropriate case for exercise of power under O.XLI, R.27, C.P.C. for bringing on record additional evidence. II. Ghulam Zohra, etc. v . Nazar Hussain (2007 SCMR 1 117) "The learned Appellate Court under sub-rule(b) of Rule 27 of Order XLI, C.P.C. should have received the copies of Revenue Record as additional evidence in order to do complete justice and in order to avoid passing a decree in favour of the pre-emptor having no superior right. The question of filling in the lacunae is not of prime importance because no such word is mentioned in the rule itself. " 11. There is also the issue of limitation left unattended by the petitioner . The petitioner has not placed any material on record to establish that the judgment and decree of the learned trial court was not in the knowledge of the petitioner , and that he was not barred by limitation in seeking to have such ex-parte judgment and decree set- aside. First of all, the petitioner never sought to have the judgment and decree of the trial court set-aside or have the matter remanded by the learned ADJ to the trial court. But even if he had, he would face a bar under Article 164 of the Limitation Act, 1908. 12. The petitioner never filed an application to have the judgment and decree of the learned Family Court set aside within the limitation period prescribed under Article 164 of the Limitation Act, 1908. Even after his application to have the' ex-parte judgment and decree of the learned ADJ set aside was accepted, he never sought the matter to be remanded back to the learned Family Court and he never filed a cross-appeal or any application to bring on
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record any additional evidence before the appellate court. Even during these proceedings, the learned counsel for the petitioner has not pointed to any record or facts, which he would have brought to the notice of the learned Family Court. and in view of which the learned Family Court or the learned appellate court might have come to a different conclusion. The lazy and bald argument on the petitioner's behest that the case should be remanded back for adjudication afresh in the interest of Article 10A rights of the petitioner is misconceived. The Article 10A rights of the respondent are no less valuable than those of the petitioner . And "delayed justice" equally undermines Article 10A rights of a person seeking a remedy from the court. The impugned order thus suffers from no infirmity for not ordering a remand. 13. The second question is whether a wife separated from her husband and living separately , and a wife who is a working woman, is entitled to maintenance. 14. There is no consistency in the case-law on the question of the entitlement of a wife to maintenance, and whether or not grant of maintenance to a wife for the period during which she has remained in the bond of marriage can be subjected to conditions, including, inter alia, that she should be financially dependent on her husband or that she should be living in the same house as him or that she should be obedient to him. Let us first consider the dicta of superior courts on the question of right of a wife to maintenance and the sources of law used by the courts to determine the entitlement to maintenance. 1. Sardar Muhammad vs. Mst. Nasima Bibi and others (PLD 1966 Lahore 703). 7. The proposition cannot be questioned that it is incumbent on a Muslim husband to maintain his wife,. subject of course to her loyalty and readiness to perform marital obligations. The following passage from Ameer Ali's Muhammadan Law may be reproduced with advantage in which reliance has been placed on Fatawa-i-Alamgiri and Raddul Muhtar: "If the husband be a minor and the wife an adult, and the incapacity to complete or consummate the contract be solely on his part, she is entitled to maintenance. If the minor has no property , the obligation of maintaining the wife devolves on his father with a right of recovery against him when he is in a position to repay the amount expended on his behalf. When both husband and wife are minors and cohabitation is impossible, there is no liability , for maintenance." "It makes no difference in the husband's liability to maintain the wife, whether he be in health or suffering from illness, whether he be a prisoner of = war or undergoing punishment, "justly or unjustly", for some crime, whether he be absent from home on pleasure or business, or gone on a pilgrimage, and whether he be rich or poor. In fact, as long as the status of marriage subsists and the wife is subject to the marital power , she is entitled to maintenance from him. Nor does she lose her right by becoming afflicted with any disease after marriage. "But when she becomes ill before she has taken up her abode in the conjugal domicile there is no obligation on the husband to provide for her maintenance." 8. A woman is also entitled to her maintenance though refusing herself to her husband on the ground that he had not paid her dower , Mulla in his Principles of Muhammadan Law at page 238, 1961 Edn. has observed as follows: "Husband's duty to maintain his wife." "The husband is bound to maintain his wife (unless she is too young for matrimonial intercourse) so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him, or is otherwise disobedient, unless the refusal or disobedience is justified by non-payment of proper dower , or she leaves the husband's house on account of his cruelty ." Thus, it is abundantly clear that the husband's obligation to maintain his wife commences with the performance of marriage subject to certain conditions. But the authorities cited earlier and relied upon by the learned counsel for the petitioner seem to lay down in un-mistakeable terms that in the absence of an agreement between the spouses or a decree by the Kazee, a wife is not entitled to a decree for past maintenance. The reasoning seems to be that if the wife has somehow managed without maintenance and has not cared to approach the Kazee, a decree for past maintenance may be justifiably refused to her. In other words, the argument is that a person who does not care to promptly seek a legal remedy or has somehow managed to do without it may be afforded a relief only when he
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seeks it and not for an earlier period of time. This position seems, to be rather inconsistent with the view expressed in the above cited authorities that normally obligation to maintain a wife starts from the time of marriage. 9. It appears necessary to appreciate the difference between dower for which the word "Agee (Singular) or "Aagur" (plural) has been used in the Qur'an and maintenance or "Nufqua" Marriage in Islam being in the nature of a contract, dower is the consideration agreed between tine parties which the husband has to pay to the promptly or subsequently in accordance with the terms of the agreement. On the contrary; maintenance is an obligation one of the essential incidents of marriage, liable to suspension or forfeiture under certain circumstances. The two, therefore, proceed on entirely different bases. So far as the payment of dower is concerned, once it is stipulated, its payment becomes obligatory on the husband and even if the wife is divorced by the husband before she is touched, he is bound to pay half of the dower money as would be clear from the following verse No. 236 of Sura Albaqra. It could of course, be quite different if the wife voluntarily foregoes the dower . 10. As against this, 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 according to usage: This finds further support from the famous tradition of the Holy Prophet (peace be upon Him): The argument in favour of forfeiture of arrears of maintenance for the past seems to have been based on the assumption that "maintenance is an obliga tion in the manner of a gratuity Almuwaqat" i.e., an ex gracia grant which is paid by way of sympathy and charity which cannot be claimed as of right. This is "clearly laid down in Hamilton's Translation of Hedaya of which the relevant portion has been reproduced earlier in this judgment In all humility and with the utmost respect we find it difficu lt to endorse this view as the consensu s of opinion as shown from the authorities cited earlier seems to be that the maintenance of a wife is the bounden duty of a husband, irrespective of his minority , illness or imprisonment or the richness of the wife, so much so that the obligation devolves on the father of a minor husband with a right of recovery against him when he is in a position to repay the amount as held by Amir Ali on the authority of 'Fatawa-i-Alamgiri' and Radd-ul-Muhtar , alluded to earlier . It is thus difficult to say that it is in the nature of an ex gracia payment which cannot be claimed for a past period of time. II. Muhammad Nawaz v. Mst. Khurhsid Begum (PLD 1972 SC 302) which upheld Sardar Muhammad (PLD 1966 Lahore 703) and cited it with approval. III. Ghulam Rasool v . Collector , Lahore (PLD 1974 Lahore 495 ). The learned Lahore High Court distinguish ed the jurisprudence produced under erstwhile section 488 of Cr.P.C that prescribed various conditions to be satisfied before upholding the wife's claim for maintenance and held that such conditions could not be imported into section 9 of the Muslim Family' Laws Ordinance. Let us reproduce the relevant part of the judgment: "9. The provisions of section 9 of the Muslim Family Laws Ordinance are, however , different. Under this section wife is entitled to maintenance, not only when she is not living with the husband but whenever it is proved that the husband fails to maintain her adequately or where there are more wives than one, fails to maintain the wife seeking maintenance, equitably . The recovery is also not subject to the condition of failure to comply with the order of payment of maintenance without sufficient cause as has been seen in subsection (3) of section 488, Cr.P.C. Subsection (3) of section 9 of the Family Laws Ordinance provides that any amount payable under subsection (1) of section 2, if not paid in due time, shall be recoverable as arrears of land revenue. The authorities relied upon by the learned counsel for the petitioner or the other authorities about suspension of the order during the period of re-union between the spouses are not, therefore, applicable to a case falling under section 9 of the Family Laws Ordinance. According to this section complete neglect or failure on the part of the husband to maintain the wife is not necessary to be established to attract the provision of this section. Even if it is proved that the wife is being maintained by the husband but the Arbitration Council comes to the conclusion that there is failure to maintain a single -wife adequately or in case there is a plurality of wives one of the wives equitably , although the husband and wife are living together , the order of payment of maintenance can be passed. The mere re-union, therefore, does not make any difference. The provision about recovery is couched in mandatory form. If it is once proved that the amount
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payable has not been paid it shall be recovered as arrears of land revenue. This leaves no doubt that the order of payment of maintenance is neither terminated nor suspended by any act of parties for so long as they remain husband and wife. I am of the view that the order of the Arbitration Council issuing the certificate of recovery and the order of Collector have not been passed without any lawful authority . IV. Mohd. Ahmed Khan vs. Shah Bano Begum and others (AIR 1985 SC 945) 15. There can be no greater authority on this question than the Holy Quran, "The Quran, the Sacred Book of Islam, comprises in its 114 Sums or chapters, the total of revelations believed to have been communicated to Prophet Muhammed, as a final expression of God's will". (The Quran- Interpreted by Arthur J. Arberry). Verses (Aiyats) 241 and 242 of the Qur'an show that accordin g to the Prophet, there is an obligation on Muslim husbands to provide for their divorced wives. The Arabic version of those Aiyats and their English translation are reproduced below:--- Arabic version English version Ayat No. 2412 WA LIL MOT ALLAQA TAY MATA UN BIL MARROOF AY HAQQAN ALALMUTT AQEENAMaintenance (should be
(Scale.) This is duty
On the righteous. Ayat No. 242 KAZALEKA YUBAIYY ANULLAHO LAKUM AYATEHEE LA ALLAKUM TAQELOON (See The Holy Quran' by Yusuf Ali, Page 96) Thus doth God Make Clear His Signs T o you:
In order that ye may undersigned. The correctne ss of the translation of these Aiyats is not in dispute except that, the contention of the appellant is that the word 'Mata' in Aiyat No. 241 means provision' and not 'maintenance'. That is a distinction without a difference. Nor are we impressed by the shuffling plea of the All India Muslim Personal Law Board that, in Aiyat 241, the exhortation is to the' Mutta Queena, that is, to the more pious and, the more God-fearing, not to the general run of the Muslims, the 'Muslminin'. In Aiyat 242, the Quran says: "It is expected that you will use your commonsense". 16. The English version of the two Aiyats in Muhammad Zafrullah Khan's 'The Quran' (page 38) reads thus: "For divorced women also there shall be provision according to what is fair. This is an obligation binding on the righteous. Thus does Allah make His commandments clear to you that you may understand" 17. The translation of Aiyats 240 to 242 in 'The Meaning of the Quran' (Vol. 1, published by the Board of Islamic Publications, Delhi) reads thus. "240-241. Those of you, who shall die and leave wives behind them, should make a will to the effect that they should be provided with a year's maintenance and should not be turned out of their homes. But if they leave their homes of their own accord, you shall not be answerable for whatever they choose for them selves in a fair way; Allah is All Powerful, All-wise. Likewise, the divorced women should also be given something in accordance with the known fair standard. This is an obligation upon the God-fearing people. 242 Thus Allah makes clear His commandments for you: It is expected that you will use your commonsense." 18. In "The Running Commentary of the Holy Quran" (1964 Edition) by Dr. Allamah Khadim Rahmani Nun, Aiyat No. 241 is translated thus: "241 And for the divorced woman (also) a provision (should be made) with fairness (in addition to her dower); (This is) a duty (incumbent) on the reverent."
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