Rashid Ahmad Khan v Nasim Ara

  • The petitioner and the respondent divorced on 8th January, 1966 (a notice of which was sent to the Chairman of the Union Council and a copy to the respondent in compliance with the requirements of section 7 of the Ordinance). The respondent filed an application for maintenance under section 9 of the Muslim Family Laws Ordinance (VIII of 1961) on 1st January, 1966.
  • The petitioner replied to the application stating that he shall maintain his ex-wife for a period of three months (Iddatperiod) after the divorce. The respondent’s father was nominated as her representative on the Arbitration Council. The Council decreed a sum of Rs. 708. 33 in favour of the respondent as arrears of maintenance for the period between the 10th of February, 1965 and the 15th of April, 1966, at the rate of Rs. 50 per month. The petitioner aggrieved with this decree filed a writ petition at the High Court.

Legal Reasoning

Whether the arbitration council had jurisdiction to award arrears of past maintenance? 

  • Sajjad Ahmad, J. – “The Ordinance was passed to give effect to certain recommendations of the Commission that had been set up on marriage and family laws which provided for some conciliatory and easy modes for ending unhappy wedlocks and ensuring speedy relief to the neglected wives against the delinquent husbands. […] it would seem to be against the intention of the law-giver to hold that the Arbitration Councils can issue certificates under section 9 only in regard to future maintenance, without having the powers to do the same in respect of the arrears of past maintenance. […] One can imagine a case where a wife may have hopefully waited for payment to her of her maintenance by the husband who may have been prevaricating to meet the claim without expressly denying it and when the wife finally brings an action under the Ordinance before the Arbitration Council it would seem unfair to deny to the wife her claim for past maintenance on the ground that she had not promptly come to ask for it owing to the false promises held out by the husband.” (p. 96)

Conclusion

The writ petition was dismissed with costs. The respondent wife was granted past maintenance which  she had not received during her married life

We are, therefore, unable to find anything in section 9 to draw a line for dividing the jurisdiction of the Arbitration Council for the grant of the maintenance between past and future maintenance.” (Sajjad Ahmad, J., p. 96)

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