Was enacted which shows that without any ambiguity the Muslim Family Laws Ordinance, 1961, an earlier statute, was not only kept intact but it was given an overriding effect on any other statute on the subject. In this regard, section 5 and section 21.........

 2023 MLD 1928

After the promulgation of the Ordinance, 1961, West Pakistan Family Courts Act, 1964 (hereinafter referred to as the Act, 1964) was enacted which shows that without any ambiguity the Muslim Family Laws Ordinance, 1961, an earlier statute, was not only kept intact but it was given an overriding effect on any other statute on the subject. In this regard, section 5 and section 21 of the West Pakistan Family Courts Act, 1964 are relevant.

On a conjunctive reading of the aforementioned provisions it also clearly emerges that there was no impediment in the way of respondent No.1 in making an application u/s 9(1) of the Ordinance, 1961, as she could make such an application/prayer for allowing maintenance to her besides any other legal remedy available to her for the purpose. In this way, the right of respondent No.1 invoke provisions of section 9 of the Muslim Family Laws Ordinance, 1961 could not be taken away on any pretext including filing of proceedings before any other forum.

A perusal of record it appears that respondent No.1 claimed her maintenance by filing application under section 9 ibid on 25.07.2013 whereas she filed suit before the Family Court claiming maintenance for her as well as for her child on 31.07.2013. Further, respondent No.1 was granted maintenance vide impugned order dated 26.08.2013 where suit for maintenance to her extent was dismissed on 19.03.2015, hence she was not obliged to challenge the validity of judgment & decree of the learned Family Court. 9. This court is cognizant of the fact that when a party has more than one forum for redressal of its grievance and if it opts for one of them then it cannot be allowed to switch over to the rest of the remedies. Insofar as the case in hand is concerned, if proceedings before two forms were not maintainable the suit before the Family Court, being latter in time, could be attacked on the said point but by no stretch of imagination order dated 26.08.2013 could be declared illegal mere dismissal of suit by the learned Judge Family Court on 19.03.2015.

Section 9(1) of the Ordinance, 1961, postulates that Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband. From the word ‘maintenance’ it cannot be gathered that it relates to past or future rather in wide sense it covers all kinds of maintenance payable to the the wife either during subsistence of her marriage or for Iddat period, as the case may be. Therefore, in no way Section 9(1) curtailed the power of Arbitration Council to grant past maintenance to the wife. The husband’s obligation to maintain his wife commences simultaneously with the creation of marital bond and being in obligation and not an ex gratia grant it is enforceable even with respect to the past period of marital life, although, the same was not claimed during that period by the wife, subject to consideration of limitation and circumstances of the case itself. In this scenario, the contention raised by learned counsel for the petitioner is misconceived hence repelled.

So far as the point that Chairman cannot assume himself to be Arbitration Council is concerned, suffice it to note that Rule 5 of the West Pakistan Family Court Rules framed under the Muslim Family Laws Ordinance, 1961, provides answer to this query. Sub-clause (6) of the Rule under reference envisages that all decisions of the Arbitration Council shall be taken by majority and where no decision can be so taken the decision of the Chairman shall be the decision of the Arbitration Council. Same was done in the case in hand.

Similarly sub-clause (2) of Section 9 of the Ordinance, 1961, further clarified that a husband or wife may in the prescribed manner within the prescribed period and on payment of prescribed fee prefer an application for revision of the certificate before the Collector concerned and his decision shall be final and shall not be called in question in any Court. The words ‘within the prescribed period’ means not beyond the period stipulated under the Rules. In this regard clarification is made under sub-section (1) of Section 16 of the West Pakistan Rules made under the Muslim Family Laws Ordinance, 1961.

From the above provision of law it is crystal clear that petitioner had to file revision before the Collector/respondent No.3 within 30-days from the issuance of order of respondent No.2 but he failed to do so. From perusal of record it reveals that petitioner filed revision on 07.06.2016 against order of respondent No.2 after passing of more than two and half years and that too without furnishing any lawful reason except bald assertion that he was abroad (Kuwait) and as soon as he came to know about these proceedings he filed the revision before the Collector. The learned District Collector, Gujrat/respondent No.3 while dismissing the revision of petitioner gave sound and logical reasons that revision filed by the petitioner was hopelessly barred by time and under the Statute impugned order passed by respondent No.3 was not challengeable before any Court. Furthermore, when the statute itself prescribed the period for availing remedy before the higher forum the provisions of Limitation Act, 1908 would not be applicable.