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Writ Petition No.1396 of 1970, decided on 13th March, 1983.

---S.9--Constitution of Pakistan (1973), Art. 199--Maintenance- Entitlement of divorced wife--Divorced wife, held, was entitled to payment of maintenance for period of Iddat even Tit was awarded by Union Council after divorce proceedings had been concluded--High Court in constitutional jurisdiction ordering recovery of maintenance amount of Iddat period from ex-husband of petitioner.

Shaukat Ali Malik for Petitioner.

S.M. Zamir Zaidi for Respondent.

Date of hearing: 13th March, 1983.

This Writ Petition. has been filed by Mst. Farkhanda Begum petitioner. The background is that she was married to respondent No.2 on 19-12-1965 but the relations between the two spouses became strained and respondent No.2 turned her out on 3-6-1969. He served notice of Talaq on her on i-7-1969 and while the proceedings were pending before the Union Council, it was informed that a child was born to the petitioner This child subsequently died. Any way, while the Talaq proceedings have not yet been finalized she filed an application for the grant of maintenance. On the other hand, respondent NO.G filed an application for the confirmation of Talaq. Her application for maintenance was dismissed and the Talaq was confirmed. While confirming the Talaq, the Union Council ruled that although she was not entitled to maintenance she was certainly entitled to the maintenance for a period of four months and four days of Iddat at the rate of Rs.150 p.m. and thus, burdoned respondent No.2 for the purpose of maintenance for this period of Iddat amounting to Rs.600 which he was expected to pay to the petitioner. The order of the Union Council was passed on 26-12-1969. respondent No.2 filed a revision against the said order which was heard by Collector, Sialkot and it was accepted vide his order dated 13-4-1970. He observed that the maintenance allowance was awarded during the divorce proceedings and that the application of the petitioner for maintenance was dismissed as she was not entitled to any allowance. Nevertheless, the order under revision awarded Rs.600 to her as maintenance allowance and this order had been passed on the conclusion of the divorce proceedings which was ultra vires and without jurisdiction as the application for maintenance allowance had already been rejection. On these grounds he accepted the revision petition of respondent No. and set aside the order passed by the Union Council. Hence the present writ petition.

2. It was contended by learned counsel that the Union Council misdirected itself in dismissing the application for maintenance under section 9 of the Muslim Family Laws Ordinance under the misapprehension that the order of maintenance for the period of Iddat passed by it in the Talaq proceedings under section 7 of the said Ordinance was sufficient and valid for the purpose and that the impugned order passed by the Collector had been illegally passed. Learned counsel argued that she was in any case entitled to the maintenance allowance for the period of Iddat and it had nothing to do with the rejection of the maintenance application. Learned counsel placed reliance on Akhtar Hussain v. Collector Lahore P L D 1977 Lah. 1173. The facts in that case are identical. In that case the husband had given divorce to the wife and communicated it to the Chairman. The Chairman was held not empowered under any law to annul divorce and divorce In the circumstances became effective after expiration of ninety days from the date of delivery of notice to the Chairman. It was further held that by operation of clause 7 (3) read with section 5 of the Ordinance divorce will become effective from the date prescribed therein and consequently the period of maintenance would also be governed after taking into account the period of Iddat starting from the time and the date computed by reference to section 8 of the said Ordinance. On the basis of this authority learned counsel argues that the petitioner was entitled to payment of Rs.600 as maintenance for the period of Iddat even if it had been awarded after the divorce proceedings had been concluded and that there was no justification on the part of the Collector to set aside that order. In the light of this argument it is submitted that the; order passed by the Collector had been illegally passed and it should be set aside.

3. I find that there is substance in the arguments of learned counsel for the petitioner. In the light of above discussion since the order of the Collector has been illegally passed, it is hereby set aside. This would leave the order of the Union Council/ Arbitration Council in the field. Respondent No.2 should pay up Rs.600 as total amount of maintenance allowance for the Iddat period to the petitioner within a period of one month and the said amount be recovered through the Tehsildar from him. This Writ Petition is accepted but there shall be no order as to costs.

H.B.T./F-10/L Petition accepted.

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