Jamila Khatun (Appellant)
Rustom Ali (Respondent)
ATM Afzal Chief J
Mustafa Kamal J
Md. Abdur Rouf J
Judgment : March 7th, 1996.
Mrs. Rabeya Bhuiyan, Advocate instructed by Mvi. Md. Wahidullah, Advocate-on- Record — For the Appellant.
Gour Gopal Shaha, Advocate, instructed by Sharifuddin Chaklader, Advocate-on- Record — For the Respondent.
Civil Appeal No. 21 of 1991
(From the Judgment and Order dated 19-6-90 passed by the High Court Division in Civil Revision No. 1078 of 1978).
Mustafa Kamal J: Appellant Jamila Khatun is the wife of respondent Rustom Au, On 6.1.86 she filed Family Court Case No. 1 of 1986 in the Family Court and Upazila Munsif, Fulbaria against the respondent praying for balance dower money of Taka 250.00 and maintenance at the rate of Taka 500.00 per month for 11 years 1 1/2 months which comes to Taka 66,750.00 in total Taka 67,000.00 and for a decree of dissolution of marriage. By judgment and decree dated 3 1.5.86, the trial Court decreed the suit for Taka 30,287,50.00 representing maintenance for 11 years 1 1/2 months for her child @ Taka 75.00 per month amounting to Taka 10,012,50, maintenance for herself for the same period @ Taka 125.00 per month amounting to Taka 20,025.00 and balance of dower money amounting to Taka 250.00 and also decreed dissolution of marriage. On appeal by the respondent, OC Appeal No. 243 of 1986, the 2nd Court of Subordinate Judge, Mymensingh by judgment and decree dated 25.5.87 dismissed the same and affirmed the judgment and decree of the trial Court. In the revision taken by the respondent, Civil Revision No. 1078 of 1987, a learned Single Judge of the High Court Division by judgment and order dated 19.6.90 set aside the judgment and decree of the lower appellate Court insofar as the decree for past maintenance is concerned, keeping undisturbed all the other reliefs granted to the appellant. The High Court Division allowed maintenance to the appellant with effect from the date of filing of the case i.e. 6.1.86 till the expiry of 3 months from the date of decree of the trial Court (31.5.86) and also granted maintenance to the child from 6.1.86 till the decree of the Court below.
2. Leave was granted from the said judgment and order of the High Court Division to consider the appellant’s submission that the right to maintenance is guided by the personal law of the appellant and her son and that the High Court Division wrongly held that the appellant was not entitled to past maintenance in the absence of a written document.
3. The suit was filed by the appellant as plaintiff on the allegations, inter alia, that the appellant and the respondent were married on 3.8.72, the dower being fixed at Taka 500.00 On the same date the respondent transferred 11 acres of land to the appellant by a saf kabala. The couple lived together happily as man and wife and when the appellant was in the family way the respondent sent her to her paternal home. There she gave birth to a male child. Two months after the birth of the child the respondent took back his wife to his house and gradually started assaulting and torturing her physically and mentally. On the 5th Magh, 1381 BS corresponding to 18.1.75, the respondent after mercilessly beating the appellant drove her and her son out from the conjugal home retaining all her ornaments and wearing apparels. The appellant has since been living at her parental home and the respondent has not given her or her son any maintenance since then. A year later she approached the village matbars for a salish which failed. Thereafter the dispute was successively referred, twice each, to a Village Peace Committee and to the Chairman of the Union Parishad, but for four years the dispute remained unresolved. The respondent never gave her possession of 11 acres of land and although he is a man of substance he is denying the appellant and her son of their due maintenance, but he has paid her half of the dower. Hence the suit.
4. The respondent in his written statement admitted that he was married to the appellant on 3.8.72 and also admitted the dower amount. He admitted that the appellant was not given possession of 11 acres of land even though a saf kabala was registered in her favour. When the appellant gave birth to a male child only 7 months and 15 days of the marriage a suspicion arose in his mind that the child was not his. The appellant is a woman of easy virtue and the respondent divorced her on the 3rd Falgoon, 1379 BS and a Talaqnama along with maintenance for 3 months and the dower money was duly sent to the appellant’s paternal home. The salish was denied altogether.
5. Both the trial Court and the lower appellate Court concurrently held that the male child was born in wedlock, that the respondent never divorced the appellant, that the suit was not barred by limitation, that it was maintainable and that the appellant was entitled to the decree prayed for with modification in the amount of maintenance claimed.
6. Relying upon section 278 of Mulla’s Principles of Mohammadan Law (18th Edition) and the case of Abdul Futfer Moulvie vs. Pabunesa Khatun, (1881) ILR 6 (Cal) 631, a learned Single Judge of the High Court Division held that a wife is not entitled to past maintenance in the absence of a prior written agreement. She can be allowed maintenance from the date of institution of the suit till three months after the decree of dissolution of marriage i.e. during the period of iddat. Relying further on the case of Mst. Ghulam Fatima vs. Sheikh Muhammad Bashir, PLD 1985 (WP) (Lahore) 596, the learned Single Judge further held that past maintenance to a child is also not available to a Muslim wife in this country.
7. Mrs. Rabeya Bhuiyan, learned Counsel for the appellant, submits that the traditional Hanafi Law on past maintenance to a wife has been stated in Baillie’s Digest at page 443 as follows:
“When a woman sues her husband for maintenance for a time antecedent to any order of the Judge or mutual agreement of the parties, the Judge is not to decree maintenance for the past.”
“When maintenance has been decreed against a husband at so much a month, or the parities have come to a mutual agreement for so much each month, and several months are allowed to pass without his giving her anything, and she in the meantime raises her maintenance on credit, or disburses it out of her own property, and then either the husband or the wife happens to die, the whole of what has been so raised or disbursed drops or can no longer be recovered. And in like manner, if he should repudiate her, any arrears of maintenance that may have accumulated after the decree of the Judge are irrecoverable.”
8. Further, Mulla’s Principles of Mohammadan Law (18th Edition), section 278 reads as under:
“278. Order for maintenance.—If the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement. Or, she may apply for an order of maintenance under the provisions of the Code of Criminal Procedure, section 488, in which case the Court may order the husband to make a monthly allowance for her maintenance not exceeding five hundred rupees.”
9. Mrs. Rabeya Bhuiyan further submits that at page 142 of Hamilton’s Translation of Hedaya it has no doubt been stated as follows:
“Arrears of maintenance not due unless the maintenance has been decreed by the Ka or the rate of it previously determined on between the parties—If a length of time should elapse during which the wife has not received any maintenance from her husband, she is not entitled to demand any for that time, except when the Kazee had before determined and decreed her, or where ‘she had entered into a composition with the husband respecting it, in either of which cases she is to be decreed her maintenance for the time past, because maintenance is an obligation in the manner of a gratuity, as by a gratuity is. understood a thing due without a return, and maintenance is of this description, it not being held (according to our doctors) to be as a return for the matrimonial propriety; and the obligation of it is not valid but through a decree of the Kazee, like a gift, which does not convey a right to possession but through seisin, which establishes possession; but a composition is of equal effect with a decree of the Kazee, in the present case, as the husband, by such composition, makes himself and his power over his own person is superior to that of the Magistrate. This reasoning does not apply to the case of dower, as that is considered to be a return for the use of the wife’s person.”
10. Mrs. Rabeya Bhuiyan does not dispute that these are the traditional views on the Hanafi Law on past maintenance to wife but she contends that these views have been considered in detail with reference to the Holy Quran, Hadith of the Holy Prophet and Ibne Qayyüm’s famous work Zaadul Maad published in Egypt and after a thorough discussion of the law and literature on the, subject a Division Bench of the Lahore High Court held in the case of Sardar Muhammad vs. Mo Nasima Bill and ors, 19 DLR ‘(WP) SO =PLD 1966’ (Lahore) 703 (which we shall henceforth refer to as Sardar Muhammad’s case) as follows:
“14. The argument in favour of forfeiture of arrears of maintenance for the past seems to have been based on the assumption that ‘maintenance is an obligation in the manner of a gratuity i.e. an ex gracia grant which is paid by way of sympathy and charity which cannot be claimed as of right. This is clearly laid down in Hamilton’s Translation of Hedaya of which the relevant portion has been reproduced earlier, in this judgment In all humility and with the utmost respect we find it difficult to endorse this view as the consensus of ‘opinion as shown from the authorities cited earlier seems to be that the maintenance of a wife is the bounden duty of a husband, irrespective of his minority, illness or imprisonment or the richness of the wife, so much so that the obligation devolves on the father of a minor husband with a right of recovery against him when he is in a position to repay. the amount as held by Amir Ali on the authority of Fatawa i Alamgiri and Radd-ul-Muhtar alluded to earlier It is thus difficult to say that it is in the nature of an ex gracia payment which cannot be claimed for a past period of time
“16. The main argument which ed the basis, of the Hanafi view is that Hinda, the wife of Abu Sufian, approached the Holy Prophet complaining about her inadequate maintenance by Abu Sufian, when the Prophet allowed her husband so much as was sufficient to maintain her.
From the absence of any reference to past maintenance, it is argued from this that the same stood forfeited. This argument is met by, the other school of thought by a counter argument that since Hinda never claimed arrears of maintenance as such, there was no occasion for the Holy Prophet to allow her a relief which was never prayed for An incident on which both sides seem to have relied in support of their respective views is that Caliph Umar wrote to his army officers in distant countries that the Muslim soldiers who were away from their wives should be ordered either to pay maintenance to their wives or divorce them It was further directed that in the event of divorce they should also remit arrears of past maintenance It is not disputed that no exception was taken to this directive of Caliph Umar The argument of the Hanifies is that the payment of arrears was ordered only in case of divorce and not otherwise On the contrary it is argued by the other schools of thought that this direction of ‘Caliph Umar amounts to a clear dictum in favour of the validity of past maintenance and only in the event of divorce was it insisted that it should be sent along with the divorce and, as such, it does not necessarily mean that it stands forfeited if the wife is not divorced Further support is lent to the latter view from the fact that the competency of the Kazee to grant maintenance for the past has also been admitted by the Hanafi school of thought as is clear from the following heading of the excerpt from Hamilton’s Hedaya quoted earlier which reads:
“Arrears of maintenance not due unless the maintenance have been decreed by the Kazee or Thus the competency of the Courts of today which have stamped into the shoes of the Kazees for the purposes of adjudication of these matters flows as a necessary corollary therefrom. The mere fact that a neglected wife has been hesitant in promptly coming to the Court or has been pursuing alternative remedies out of Court cannot, in all fairness, be so construed as to deprive her of the right of maintenance from the day when the cause of action accrued to her. The Courts have thus the jurisdiction to grant such maintenance subject of course to considerations of limitation and the relevant circumstances of each case, and we hold accordingly.”
11. Mrs. Rabeya Bhuiyan submits that the above decision of the Lahore High Court, given on the 5th May, 1964, is holding the field for the last 32 years and the said decision escaped the notice of the learned Judge of the High Court Division. She also submits that the Lahore decision has not only been followed by a Division Bench of the High Court Division in the case of Sirajul Islam vs. Halena Begum and Ors. 48 DLR (HCD) 48, but has consistently been affirmed first by the Pakistan Supreme Court in the case of Muhammad Nawaz vs. Mst. Khurshid Begum, FLD 1972 (SC) 302, at PP 304-305 of which a comparison was made between the provisions of section 9 of the Muslim Family Laws Ordinance, 1961, hereinafter referred to as the Ordinance of 1961, and those of section 488 of the Code of Criminal Procedure and the Supreme Court of Pakistan, in support of granting past maintenance to the wife, gave an additional reasoning which is as follows:
“The Legislature must have been conscious of the phraseology of section 488, Cr. P. C. In spite of that it did not place any restriction on the powers of the Arbitration Council to award maintenance, In our opinion, under this provision of law, the Arbitration Council is competent to award maintenance for the past subject, of course, to the question of limitation. In the present case, the High Court has considered the question of limitation and has come to the conclusion that Article 120 of the Limitation Act applies to the facts of the present case and the claim of the respondent was not barred by limitation. In this view of the matter, we are satisfied that the High Court has rightly held that the Arbitration Council was competent to award past maintenance.”
12. Sardar Muhammad’s case has next been affirmed by the Pakistan Supreme Court in the case of Ghulam Nabi vs. Muhammad Asghar, PLD 1991 (SC) 443. She therefore submits that the High Court Division has failed to take into account the latest Sunni law on past maintenance prevalent in the sub-continent.
13. Having heard Mrs. Bhuiyan on this question and having considered the frank submission of Mr. Gour Gopal Shaha, learned Advocate for the respondent that he cannot lay his hands on any decision contrary to Sardar Muhammad’s case, we find that the word “maintenance” is “nafkah” in Arabic. Syed Ameer Au says in his Muhammadan Law, Volume II (5th Edition) at page 404 as follows:
“In the language of the Arbas,” in other words, literally, “nafkah means what a man spends over his family”. “In the language of the law, it signifies food, clothing and lodgmete. This has been mentioned by Imam Mohammed…………… The nafkah of a person becomes incumbent upon another from three causes; (a) from being a wife; (b) from being a relation; (c) from being a slave or servant.” Sir Syed Ameer Ali says further at the same page— “The husband is legally boqnd to maintain his wife and her domestic servants whether she and her servants belong to the Moslem Faith or not. “It is incumbent on the man to maintain his wife,” says the Fatawai Kazi Khan, “whether she be Moslemah or non-Moslemah (lit zimmia), poor or rich, whether there has been copula or not; whether grown-up (adult) or young, so that intercourse with her is possible,
14. We also find in Syed Ameer Ali’s above edition of Mohammedan Law the background of the Holy Prophet’s award of maintenance to Hinda. That was in the context of fixing a proper amount of maintenance. The learned author says at pp.404-405- “Karkhi has said that in fixing the amount of maintenance regard is to be paid to the condition of the husband and not to the position of the wife, and this is the Zahir-ur-Rawayet (most approved doctrine) and also the doctrine of Imam Shaf’ ei. But Khassaf has said, and so it is stated in the Hedaya, that when the condition of the husband and wife are not equal, in other words, when one is rich and the other poor, a proper mean should be adopted between the two; and on this is the Fatwa. And the Hedaya supports its view by the hadis in the Sahih-ul-Bokhari from Ayesha that on one occasion Hind, daughter of ‘Otba, came and complained to the Prophet that her husband Abu Sofian was a miser, and did not support her and her child properly. The Prophet said, take what is necessary, but be moderate. (Radd-ul-Muhtar, Vol. U, p. 1063)
15. Further, in Kozhikoti Khadir Palliveetil Mahamed Haji vs. Moideen VeettU Kalimabi, 41 ILR (Madras) 211, Mr. Justice Abdur Rahim and Mr. Justice Srinivasa Ayyangar in a case of recovery of arrears of maintenance for about a year and a half in respect of a couple both belonging to Shafi School of Muhammadan Law observed that in Minhajet Talabin of Nanawi, a high authority on the Shafi Law and then recently translated by Messrs. Van lean Beg and Howard it was stated (at page 385 of the translation):
“During his stay in Egypt, Shafi adopted the doctrine that a wife’s maintenance is obligatory only if she puts herself at her husband’s disposition and not in virtue of the contract of marriage ………………; consequently, a husband owes his wife no maintenance so long as she refuses to come to him; but owes it from the moment he hears she is willing to put herself at his disposition.”
Then further on it was laid down, “When a husband during his marriage becomes so insolvent that he can no longer give the minimum maintenance prescribed, but his wife in spite of this continues to live with him the maintenance become a debt due to her from him and exigible at any moment.”
16. The learned Judges made it clear that the position of Shafi School that the maintenance is a debt on her husband even if it was not decreed by the Kazee is nevertheless a Sunni law. The decision in Abdul Futter Moulvie vs. Pabunesa Khatun, (1881) ILR 6 (Cal) 631, the learned Judges opined, “is according to the Hanafi School of law which is followed by the Mohammedans of Bengal generally.”
17. Although the view taken in Sarder Muhammad’s case does not literally embrace the exposition of Hanafi Law in Baillie‘s Digest and in Hamilton’s translation of Hedaya, and advances closer to the Shafi School of thought, we find that the advance by way of ijtihad has been made in the right direction, with strong reasons so far undisputed and of course within the bounds of Sunni Law. We therefore find no reason why the enunciation of law on past maintenance made in 1964 by the Lahore High Court and governing the field for 32 years without being reversed by either this Court or Pakistan Supreme Court, on the contrary being re-affirmed twice by the Pakistan Supreme Court, should be overlooked or discarded without demolishing the reasons given therefor. We hold therefore that the High Court Division was wrong in denying past maintenance to the appellant on the ground of a lack of prior agreement and further hold that past maintenance is available to the appellant.
18. Mr. Gour Gopal Shaha only contends that past maintenance can be given only from the date of coming into force of the Family Courts Ordinance, 1985, hereinafter referred to as the Ordinance of 1985, i.e. from 15.6.86, as was given in Sardar Muhammad’s case from the 15th July, 1961, i.e, the date of enforcement of the Ordinance of 1961. Mr. Shaha’s last faliback position is that Article 120 of the Limitation Act will apply in this case and the appellant can only recover past maintenance for a period upto 6 years before the institution of the suit and he relies upon the case of Muhammad Nawaz vs. Mst. Khurshid Begum, PLD 1972 (SC) 302 for this proposition.
19. Mrs. Rabeya Bhuiyan however submits that the Ordinance of 1985 is not a legislation on substantive Muslim Law but is merely a procedural law governing the forum and procedure for resolution of some specified family disputes. The parties to the dispute come to the Family Court with all their accrued rights under the Mohammedan Law and the Ordinance of 1985 only provides the forum for adjudication of the accrued rights. The question for limitation, according to Hedaya, quoted earlier, was not relevant at all upon tiling of cases before the under the Ordinance of 1961 in filing petitions/applications under section 6 (polygamy) section 7 (talaq) or section 9 (maintenance). The parties obtained remedies from when the cause of action accrued and not from when the petition was filed before the Arbitration Council. Also in guardianship and custody cases, there was no period of limitation in filing cases although appeals and revisions were governed by statutory periods of limitation Section 5 of the Ordinance of 1985 she says confers jurisdiction on the Family Courts to dispose of any suit on matters relating to or arising out of (a) dissolution of marriage, (b) restitution of conjugal rights, (c) dower, (d) maintenance and (e) guardianship and custody of children If any concept of limitation is imported into such suits then inevitable complications, hardships and harassments will ensue in the resolution of all the above matters, which was not the intention of the legislature. She further draws our attention to section 3 of the Ordinance of 1985 which is as follows: “3. Ordinance to override other laws-The provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force.” She submits that section 3 has debarred the application of the law of limitation to suits filed in the Family Courts.
20. We will take up Mr. Shahas first submission with regard to grant of past maintenance from the date of enforcement of the Ordinance of 1985 upon the analogy of relief given in Sardar Muhammad’s case, in which the cause of action for past maintenance accrued to the wife before the coming into force of the Ordinance of 1961 but she filed her application before the Arbitration council on 7.2.62. The Arbitration Council granted her past maintenance from the 15th July, 1961, the date of enforcement of the Ordinance of 1961, but the wife did not prefer any revisional application therefrom to the Collector, Gujrat It is the husband who filed a revision which was dismissed as time barred The husband then challenged the Arbitration Council’s order and the revisional order by Way of a writ petition before the Lahore High Court, when it was argued on behalf of the husband petitioner that past maintenance could not be granted to the wife-respondent from the date of coming into force of the Ordinance of 1961, because the relevant rules Kazee and similarly, there was no law of limitation relating to the constitution of the Arbitration Council came into existence on the 20th July, 1961 It was argued that the Arbitration Councils order could not be maintained. It was in the context of the said argument that the Lahore High Court held in Sardar Muhammad’s ease that the relevant date is the date of enforcement of the Ordinance and not the date on which the Rules were framed.
21. The argument which Mrs. Bhuiyan has now advanced in support of her submission that the Ordinance of 1985 is only a procedural law and that the law of limitation does not apply at all to such kinds of law were neither mooted nor decided in Sardar Muhammad s case This case is no authority for the proposition, advanced by Mr. Shaha, that as a general principle re if any can be granted to a plaintiff in a suit under the Ordinance of 1985 only from the date of enforcement of the said Ordinance, i.e. from 15.6.85 and not beyond that date. Nor do we otherwise find any legal basis to hold so.
22. With regard to the second contention of Mr. Shaha, namely, the applicability of Article 120 of the First Schedule to the Limitation Act, it should be borne in mind that sections 5 and 6 of the Ordinance of 1985 make it quite clear that what has to be filed before a Family Court is a “suit” and an “application’’ as was the case with the Ordinance of 1961 In the case of an ‘application” to an Arbitration Council (which was not a Court) under the Ordinance of 1961, even the residuary Article 181 of the First Schedule did not apply, as applications under Article 181 are restricted to applications under the Code of Civil Procedure (see Tamizul Hug vs. Shamsul Huq, 43 DLR (AD) 34.) But in respect of “suits section 3 of the Limitation Act will apply or section 29(2) of the said Act will apply, if the suit is filed under a special or local law, unless the Limitation Act has been expressly excluded from the purview of such Suits. Section 3 of the Ordinance of 1985 only means that if there are provisions in the Ordinance which are different from or are in conflict with the provisions of any other law then the provisions of the said Ordinance will prevail over the provisions of other laws If, for example any special period of limitation is prescribed in the Ordinance of 1985 then that will govern the field and not the Limitation Act, 1908 Section 3 does not debar the application of Limitation Act to suits filed under the Ordinance of 1985, as contended by Mrs. Bhuiyan. Section 20 of the Ordinance of 1985 is also instructive on this point—
“20. Application and non-application of certain laws.- (1) Save as otherwise expressly provided by or under this Ordinance, the provisions of the Evidence Act, 1872 (1 of 1872), and of the Code except sections 10 and 11 shall not apply to proceedings before the Family Courts.
(2) The Oaths Act, 1873 (X of 1837) shall apply to all proceedings before the Family Courts”.
23. It may be noticed that the legislature has taken care to mention certain specific laws which shall not apply to proceedings before the Family Courts and in enumerating such laws the Limitation Act, 1908 has not been mentioned. Applying the well-known maxim of interpretation of statutes Expressio unius est exclusio alterius (the express mention of one thing implies the exclusion of another), it can be safely held that the express mention of the Evidence Act and the Code of Civil Procedure necessarily implies the exclusion of Limitation Act from the purview of non-applicability to suits under the Ordinance of 1985. Moreover, in section 7 a time limit has been prescribed for appearance of the defendant as also for submission of a written statement which will prevail over the time-limit, if contrary, provided by the Code of Civil Procedure.
Under sub-section (6) of section 9 a defendant may apply to the Court for setting aside a decree passed ex parte against him within 30 days of the passing of the decree and sub-section (7) of section 9 provides that the provisions of section 5 of the Limitation Act, 1908 shall apply to an application under sub-section (6). These provisions clearly indicate that the Ordinance of 1985 is a special law. Under section 29 (2) of the Limitation Act section 3 thereof shall apply and sections 4, 9 to 18 and 22 are applicable unless excluded and other sections are not applicable unless s included.
24. From a reading of the entire Ordinance of 1985 we find substance in the contention of Mrs. Bhuiyan that the provisions thereof are intended to provide for the establishment of Family Courts and for matters connected therewith and are not intended to make provisions for modification or amendment of Mohammedan Law or any other substantive law. ordinance is indeed procedural in nature, as was held in the case relied upon by Mrs. Bhuiyan, namely, the case of Adnan Afzal vs. Sher Afzal, PLD1969 (SC) 187, a case in relation to the West Pakistan Family Courts Act, 1964. The Ordinance .985, therefore, does not in any way diminish or nil the rights already possessed by a litigant with rd to the matters mentioned in section 5.
25. But diminution or curtailment of rights already possessed by a litigant with regard to the matters mentioned in section 5 is not the same thing the loss of those rights or a part of those rights owing to the operation of the law of repose, i.e. the law of limitation. The existence of an accrued right may be accepted or acknowledged expressly or impliedly by a procedural law, but if the law of Limitation is attracted, that right may be diminished curtailed or even extinguished altogether. The fact the Ordinance of 1985 speaks of “suit”, “plaint”, written statement”, “decree”, etc. clearly attracts the Limitation Act under section 29(2) thereof.
26. The Limitation Act does not specifically provide for any particular period of limitation in filing suits by a Muslim for arrears of maintenance although Articles 128 and 129 of the First Schedule provide a period of 12 years each by a Hindu for arrears of maintenance and for a declaration of his right to maintenance respectively and the time from which period begins to run is when the arrears are payable and Then the right is denied respectively. No such corresponding provisions exist in respect of suits filed y a Muslim for a corresponding relief. In our pinion, residuary Article 120 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrues in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule will be applicable to a suit for maintenance under Ordinance of 1985.
27. We find indirect support for our view in Sardar Muhammad’s case, in which it was held as follows “The Courts have thus the jurisdiction to grant such maintenance subject of course to considerations of limitation and the relevant circumstances of each case, and we hold accordingly.”
28. We find further indirect, support for our view in the case of Muhammad Nawaz vs. Most. Khurshid Begum, PLD 1972 (SC) 302, in which the Supreme Court of Pakistan found that the High Court of West Pakistan, Lahore, from whose decision the appeal was taken by leave, considered the question of limitation and found that Article 120 of the Limitation Act was applicable and that the wife’s claim was not barred by limitation. No exception was taken to the consideration of Article 120 by the High Court, although it was a case under section 9 of the Ordinance of 1961.
29. We do not foresee, as apprehended by Mrs. Bhuiyan, that by applying the law of limitation to the Ordinance of 1985 serious difficulties, hardships or harassments are likely to occur which will frustrate the purpose of the Ordinance. In the case of dissolution of marriage, restitution of conjugal rights and guardianship and custody of children we do not foresee any problem because the right to sue in such cases is of a continuous nature and the plaintiff’s right to sue is always likely to accrue within the period mentioned in Article 120 of the First Schedule. In respect of dower, under Articles 103 and 104 of the First Schedule a period of 3 years has been prescribed in each case as the period of limitation in filing a Suit by a Mohammedan for exigible dower (mu’ajjal) and for deferred dower (mu’wajjal) and the time from which period begins to run in each case -is different. We find that in the present case the appellant is well within the said Articles, whichever is applicable, in claiming the remaining dower money of Taka 250.00 and is also well within Article 120 in seeking dissolution of marriage with the respondent, but in respect of past maintenance, the appellant is not entitled to the same more than 6 years back from 6.1.86, the date of filing of the suit.
30. That disposes of the question of limitation in a suit for past maintenance.
31. Mr. Gour Gopal Shaha, however, has supported the judgment of the High Court Division on the further ground that the Courts below wrongly allowed maintenance, including past maintenance to -the child. First, because, all the disputes under section 5 of the Ordinance of 1985 are between husband and v Section 23 of the Ordinance of 1985 provides that nothing in this Ordinance shall be deemed to affect any of the provisions of the Ordinance of 1961 or the Rules made thereunder and section 9 of the Ordinance of 1961 enables only the wife to claim maintenance for herself and not for the child, a proposition supported in even Sardar Muhammad’s case, and, as such, her claim of maintenance for the child was not entertainable under the Ordinance of 1985. Secondly, past maintenance is not available to a child under Mohammad an Law and thirdly, in the prayer portion of the plaint the plaintiff did not specifically pray for past maintenance of the child, but prayed for her own past maintenance only.
32. We do not see any force in the argument of Mr. Shaha that section 5 of the Ordinance of 1985 deals exclusively with disputes between husband and – wife or that section 23 of the said Ordinance read with section 9 of the Ordinance of 1961 precludes a wife from claiming maintenance for her child in a suit before a Family Court. Section 5 of the Ordinance of 1985 mentioned “Maintenance” as a general subject for adjudication by the Family Court. Section 5 does not specifically say that a suit for maintenance can only be filed by the wife for herself. On the contrary, we find that the operation of section 9 of the Ordinance of 1961 has been widely extended by the provisions of section 5 of the Ordinance of 1985 by using the general expression “Maintenance”. In Hamilton’s translation of Hedaya it has been stated in the Introductory Address by the Composer of the Persian Version at page liii.:
“The place and title of Chapter XV (Of Nafkah, or Maintenance) would only lead us to conclude, that it treats in particular of the alimony payable to a divorced wife during the term of probation. This, however, is by no means the case; for it is made to comprehend those rights of every person which come under the denomination of Maintenance,— not of the wife alone, but also of parents, children, poor or disabled, relatives and slaves.”
33. Under section 5 of the Ordinance of 1985 therefore it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. Children in easy circumstances under Mohammadan Law are bound to maintain their poor-parents, although the latter may be able to earn something for themselves. These poor parents may also file a suit in a Family Court for maintenance from their opulent children. Similarly, poor or disabled relatives: even servants of the wife can maintain a suit for maintenance under the Ordinance of 1985 under circumstances enjoined by Mohammedan Law. But whether the parents, relatives and servants can claim past maintenance is not the subject matter of this case and we do not express ourselves on this question. Similarly, the claim for dower can not only be made by the wife but also by her heirs under certain circumstances. In guardianship and custody cases, besides the parents, grandparents, uncles and other relations may be plaintiffs in appropriate cases. Hence it is not correct to say that all the six subjects mentioned in section 5 relate to suits exclusively between husband and wife.
34. With regard to the second argument of Mr. Shaha, Mrs. Rabeya Bhuiyan quoted from Hamilton’s translation of Hedaya, Volume I, page 146 which is as follows: ‘A father must provide for maintenance of his infant children—The maintenance of infant children rests upon their father; and no person can be his associate or partner in furnishing it (in the same manner as no person is admitted to be associated with a husband in providing for the maintenance of his wife).
35. She also quotes from Volume II of Syed Ameer Ali’s Muhammadan Law, 5th Edition, page 427, as follows:
“The Musulman Civil Law imposes on parents the duty of maintaining their children and of educating them properly. This obligation r rests naturally upon the father……………….”.
“In all cases concerning the maintenance of infant children consideration is chiefly to be paid to the interest of the children. So long as the father is able to maintain them, it is incumbent on him to do so, and debt incurred on their behalf by any person are recoverable from him.”
36. Mrs. Rabeya Bhuiyan also relies upon the previously cited case in PLD 1991 (SC) 543 in which it was held that the Supreme Court while permitting the grant of past maintenance did not make any exception with regard to the children as distinguished from past maintenance to a wife. It held-‘Otherwise too it looks unfair that while the wife gets past maintenance the children should, as contended by the learned Counsel, be deprived of this benefit. Cases are not lacking where, while granting maintenance to the wife, Courts have taken into account her needs, vis-a-vis, any minor child which she might be supporting in the same household.”
37. The wife, therefore, can claim past maintenance for the child if she has been supporting the child in the same household without any contribution from the father whose duty it is to maintain the child. But if she does not claim separate maintenance for the child, the Court will consider her overall needs, keeping in view the fact that she has been supporting a child in the same household. In either case, the claim is subject to Article 120 of the First Schedule.
38. We however find considerable force in the third argument of Mr. Shaha that the plaintiff did not specifically pray for the child’s maintenance in the prayer portion of the plaint. In paragraph 6 of the plaint she gave a break-up of her claims against the respondent but here too she did not specify any separate amount claimed for the child’s maintenance. The trial Court gave a break-up of the amount due to the child and the appellant by specifying separate amounts, and in decreeing the suit also so specified. Mr. Shaha submits that such division was uncalled for in the absence of a specific prayer in the plaint by the appellant.
39. We do not find however that this is a case where we should overlook the overall needs of the appellant. Admittedly, she has been supporting the child in the same household where she lives. Taking the overall needs of the appellant into consideration we do not think that the amount given to her by way of past maintenance for herself including that of her son is excessive or extravagant. Rather we find that while she claimed maintenance at the rate of Taka 500.00 per month the trial Court granted her maintenance at the rate of Taka 225.00 per month, including maintenance for the child at the rate of Taka 75.00 per month. We allow the same amount to the appellant as a consolidated sum, but she will be entitled to past maintenance at the rate Taka 225.00 per month for only 6 years prior to the filing of the suit on 6.1.86, all other reliefs granted by the trial Court remaining unchanged.
In the result the appeal is allowed in part. No Costs. The trial Court’s decree is to be amended accordingly.
Source : 48 DLR (AD) (1996) 110