Find a Lawyer

Writ Petition No. 3954 of 1984, decided on 9th February, 1985.

---S. 9--Claim for maintenance decreed by arbitration council--Order reversed by Collector in revision--Decree for restitution of conjugal rights granted against wife--Suit of wife for dissolution of marriage dismissed--Wife could not be held entitled to any maintenance in face of decree for restitution of conjugal rights--No obligatory duty cast upon husband to maintain wife when she refused to live with him--Right of wife to obtain maintenance from husband was subject to her living with him--If wife refused to live with husband without reasonable cause, husband, held, was not bound to provide maintenance--Despite decree for restitution of conjugal rights wife stayed away from husband--Wife could hot validly lay claim for maintenance in circumstances.

---S. 9--Jurisdiction--Illegal exercise of, by Chairman--Mention of Talaq having become effective on 3-3-1983 made in order, dated 27-9-1982- Collector, in such absurd situation, held, rightly interfered in revisional jurisdiction to set aside order passed in illegal exercise of jurisdiction by Chairman, arbitration council.

Rao Hamid Mukhtar for Petitioner.

Muhammad Aqil Mirza for Respondents.

Date of hearing: 9th February, 1985.

Writ petition arises out of a claim for maintenance by Mst. Parveen Akhtar against her husband Javed Akhtar presented under section 9 of the Muslim Family Laws Ordinance, 1961 before Chairman, Arbitration Council Ward 1, Mandi Bahauddin, Gujrat. Vide order, dated 27-9--1982, Arbitration Council allowed maintenance at the rate of Rs.250 per month from :t3-8-1980 to 2-3-1983. An additional sum of Rs.500 was also ordered to be paid to Mst. Parveen Akhtar as delivery expenses. A revision was filed by Javed Akhtar, before Deputy Commissioner/ Collector, Gujrat. Revision succeeded and order of maintenance, was set aide on 25-6-1984, by Deputy Commissioner, Gujrat. This order, is under challenge in constitutional jurisdiction by Mst. Parveen Akhtar.

2. Learned counsel appearing for the parties have been heard, and record also examined. Learned counsel foe the petitioner contended that the mere fact that a decree for restitution of conjugal rights had been passed by family Court, would not debar the petitioner to claim maintenance on the ground of proved neglect or failure of the husband to provide adequate/proper maintenance to the petitioner his wife. It was submitted that the Chairman, Arbitration Council, .in accordance with the material brought on file by the parties, with the assistance of the two nominated Arbitrators, arrived at a finding of fact in favour of the writ petitioner and allowed her maintenance. This finding of fact which was based on proper appreciation of evidence, could not have been set aside by learned Collector in appeal.

3. Learned counsel for the respondent, stated that parties were married on -9-11-1979. Suit for divorce was filed by Mst. Parveen Akhtar before Judge Family Court at Mandi Bahauddin. This suit, vide judgment, dated 21-6-1981 was dismissed. An appeal against the judgment, dated 21-6-1981, also did not succeed and was dismissed by learned District Judge, Gujrat. Writ Petition No. 2727 of 1982 filed in High court to assail the judgment, passed under Family Court Act 1964 was disposed of on 10-1-1983. Suit seeking restoration of marital relations instituted by Javed Akhtar succeeded on 28-2-1981. Despite decree for restitution of conjugal rights petitioner did not join her husband. Consequently divorce was pronounced and a notice given to the Chairman. Divorce, dated 28-11-1982 became effective on A-3-1983. Learned counsel also stated that the claim for maintenance was rejected by the Arbitration Council but then the Chairman, in the impugned order awarded maintenance by antedating the order, Learned Collector, therefore, rightly took notice of all the factors and set aside the order.

4. It was not disputed by learned counsel for the petitioner that the suit for divorce had been dismissed by Judge Family Court. Appeal filed against the dismissal order was also dismissed. Writ petition, as stated, also did not succeed. On the other hand claim for restitution of conjugal rights was decreed in favour of Javed Akhtar. It was also not denied that Talaq had become effective since 3-3-1983. In presence of these facts, particularly in the face of a decree for restitution conjugal rights, the wife could not be held entitled to any maintenance. Her suit for divorce had already been dismissed. Under Muhammadan Law, there is no obligatory duty cast upon the husband to maintain the wife when she refuses to live with him. Right of the wife to obtain maintenance from the husband is subject to her living with him and if she refuses to live with him without reasonable cause then he is not bound to provide her maintenance. In the case under consideration wife despite decree of restitution of conjugal rights, stayed away from her husband. In such circumstances, she could not validly lay claim for maintenance. Another fact which cannot be lost sight of is that mention of Talaq having become effective on 3-3-1983 has been made in order dated 27-9-1982. This, on face of it, looks absurd. In this 'hew of the matter, learned Collector rightly interfered in revisional jurisdiction and set aside an order passed in illegal exercise of, jurisdiction by the Chairman, Arbitration Council on 27-9-1982.

5. Petition in these circumstances, fails and is dismissed with no order as to costs.

A. A.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.