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Writ Petition No.4061 of 1986, decided on 7th October, 1986.
‑‑‑S.9‑‑Constitution of Pakistan (1973), Art. 199‑‑Maintenance, awarding of‑‑Jurisdiction of Arbitration Council‑‑Awarding maintenance to wife for period more than three years preceding institution of application in that respect was not within competence of Arbitration Council‑‑‑Order of Arbitration Council, affirmed by Revisional Authority, awarding maintenance to wife beyond period of three years, passed without taking into consideration financial position of husband‑‑Rate and quantum of maintenance, held, was liable to be set aside being patently illegal‑‑High Court setting aside order of Tribunals below in exercise of constitutional jurisdiction remitted case for decision afresh in accordance with law.
Abdul Latif v. Mst. Bakhat Bhari and 2 others 1985 C L C 1184 ref.
Ch. Muhammad Hussain for Petitioner.
Mehr Ghulam Ali Mubashir for Respondent No.1.
Date of hearing: 7th October, 1986.
Mst. Alam Khatoon, respondent filed an application, dated 15‑9‑1985 under section 9 of the Family Laws Ordinance, 1961, against the petitioner for grant of maintenance allowance for a period of nine years at the rate of Rs.500 per month. The petitioner was proceeded against ex parte and respondent No.2 by his order, dated 30‑12‑1985 awarded a sum of Rs.40,596 as a maintenance to the respondent for the period from year 1977 to 1985. The petitioner went in revision but it was dismissed on 11‑8‑1986. He has now come to this Court under Article 199 of the Constitution.
2. I have heard the learned counsel for the parties and examined the record, maintained by respondent No.2. On behalf of the petitioner, two formidable objections have been raised against the validity of the decision of the Tribunals below. Firstly, it was not within the competence of respondent No.2 to award maintenance for a period of more than 3 years from the date of institution of .the application and secondly, there was no material on the record regarding the rate and quantum of maintenance.
3. Both these points are well‑grounded. As laid down in Abdul Latif v. Mst. Bakhat Bhari and 2 others 1985 C L C 1184 it is not within the competence of the Arbitration Council to award maintenance beyond three years from the date of filing of the application under section 9 of the Ordinance. No ruling to the contrary has been cited on behalf of the respondent.
4. As regards second point from the perusal of the record. I found that the entire evidence adduced by the respondent consists of his own statement and that of his representative, namely, Malik Muhammad Amir. There is not even a word therein regarding the petitioner s financial position and the rate of maintenance. The learned counsel for the petitioner is, therefore, not wrong in asserting that the fixation of the maintenance at Rs.40,596 is not based on any material. There is thus an error apparent on the face of the record. The order of the Arbitration Council is patently illegal and the decision of the revisional authority based thereon suffers from same infirmity.
5. For the foregoing reasons, this writ petition is accepted and the orders of the Tribunals below are declared to have been passed without lawful authority and of no legal effect. Consequently, the application of the respondent shall be treated as pending and decided afresh in accordance with law. The parties are left to bear their own costs.
H . B . T . Petition accepted.
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