ORDER
RAUF AHMAD SHEIKH, J.--- The petitioner has assailed the vires of order dated 8-10-2009 passed by the DOR/Collector, Rawalpindi, whereby a revision petition filed by him against the order of the Arbitration Council Jarmote Kalan, Tehsil Gujar Khan, District Rawalpindi, was dismissed.
2.The facts in brief as emerge on perusal of the record are that the petitioner divorced Mst. Jamila Yasmeen respondent No.1 and sent a notice to the Chairman Arbitration Council for further proceedings under section 7 of the Muslim Family Laws Ordinance, 1961. The petitioner did not join the proceedings before the arbitration council so finally after expiry of the prescribed period, it was declared that the reconciliation could not be effected and the divorce was effective. The claim of the respondent No.1 for the past maintenance from 5-1-2005 to 29-6-2007 @ Rs.1500, medical charges amounting to Rs.20,000, maintenance for the period of Iddat amounting to Rs.10,000 and compensation for divorce amounting to Rs.50,000 was accepted and the petitioner was directed to pay the same. He filed a revision petition before the DDO(R)/Collector, District Rawalpindi, which was dismissed.
3.The learned counsel for the parties appeared before me at 10:30 a.m. and made a request for adjournment on the ground that they were required to appear before the learned Additional Sessions Judge, Gujar Khan. They were told that they should inform the learned Additional Sessions Judge about the fixation of this writ petition and to wait for them and that the file would be taken up after hearing of the cases in the DB. The father of the respondent No.1 has informed that his counsel left the court with the request that an adjournment may be granted. In view of the above facts, the request is turned down.
4.The learned counsel for the petitioner has contended that the Arbitration Council could have not awarded the past maintenance or the medical charges borne by the respondent No.1 at the time of delivery of the child; that a sum of Rs.50,000 as compensation for divorce is against the public policy and that the wife is only entitled to dower; that the rate of maintenance for the period of Iddat is excessive; that no notice was served upon him by the Arbitration Council and as such the petitioner is not under obligation to pay the money under the impugned orders, which are not sustainable under the law.In support of the contentions raised reliance is placed on 2008 SCMR 186 and 2003 YLR 2445 (Lahore).
5.The contention that no notice was served is against the record because the copies of the notices show that the petitioner refused to accept the service. The notices were sent through registered cover envelopes also and the postal receipts were available on the record. In these circumstances, the contention that the notices were not served cannot be accepted. The other contention that the Arbitration Council could have not awarded the past maintenance and was competent to award maintenance for the future or Iddat only is also devoid of force. Section 9 of the Muslim Family Laws Ordinance, 1961 only provides that if the husband fails to maintain the wife adequately the Arbitration Council may issue a certificate specifying the amount, which shall be paid as maintenance by the husband. It is obvious from the text of the above provisions that there is no restriction on the powers of the Arbitration Council to issue certificate for the past maintenance. This restriction of course was imposed on the powers of the Magistrate under section 488, Cr.P.C. In this respect reliance is placed on Muhammad Nawaz v. Mst. Khurshid Begum and 3 others (PLD 1972 SC 302). The expenditures borne on delivery of the child are to be paid by the husband as he is bound to maintain the wife adequately, which of course includes the medical charges etc. The contention that the rate of maintenance is excessive cannot be accepted as the factual controversy cannot be resolved in exercise of the constitutional jurisdiction. However, award of compensation in the sum of Rs.50,000 due to divorce pronounced was not within the jurisdiction of the Arbitration Council. Even otherwise, the condition that in case of pronouncement of divorce, the petitioner would pay a sum of Rs.50,000 is very stringent, harsh and against the public policy. The husband and wife are supposed to live within the limits of God. They must pay respect to each other and must lead a harmonious life and if the same becomes impossible then they may separate from each other in a respectful way. Such condition may force them to live with hatred, ill-will and grouse nourished in their hearts against each other, which finally lead to many social complications. The impugned orders to this extent are without jurisdiction so are not sustainable in the eyes of law. For the reasons supra, the petition is partly accepted. The impugned orders are declared to be without jurisdiction and void to the extent of payment of Rs.50,000 as compensation for divorce. However, the petitioner remains under obligation to pay the remaining amount of Rs.75,000.
AG/A-66/LOrder accordingly.
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