1990 C L C 293

[Peshawar]

Before Muhammad lshaq Khan and

Muhammad Bashir Khan Jehangiri, JJ

NADIR KHAN--Petitioner

versus

ZEENAT BIBI and 4 others--Respondents

Writ Petition No.36-D of 1988, decided on 10th October, 1989.

(a) West Pakistan Family Courts Act (XXXV of 1964)--

----5. 5--Arbitration Act (X of 1940), Ss. 13, 14, 17 & 21--Suits for restitution of conjugal rights
and dissolution of marriage cannot be referred to arbitration.[Muhammadan Law].

Malka v. Sardar AIR 1929 Lah. 394; Isherdas v. Viran Bai AIR 1930 Lah. 707; Muhammad
Sulaiman v. Oadir Bux PLD 1965 (W.P.) liar. 326 and Mira v. Dina 37 PR 1895 ref.

(b) West Pakistan Family Courts Act (XXXV of 1964)--

----5. 5--Suit for maintenance of minors--Both minor girls were living with their mother who
being natural guardian was entitled to their custody and guardianship till they attained
puberty---Minors thus were not staying away from their father against his wishes or contrary to
his right of custody and guardianship---Father's duty to provide maintenance to minor girls
therefore was absolute.- [Muhammadan Law].

_ Muhammad Aslam v. Judge Family Court 1987 CLC 247 ref.

Dissolution of Muslim Marriages Act (VIII of 1939)--

----S. 2(ii-a)---Dissolution of marriage on ground of contracting second marriage by

husband---Courts below passed decree for dissolution of marriage in favour of wife on ground
that husband had contracted second marriage without consent of wife--Husband, challenged
decree contending that second marriage was contracted by him with consent of wife--Onus to
prove that second marriage was contracted with consent of wife, heavily lay on husband, which
he miserably failed to disclose---No exception thus could possibly be taken to findings of Courts
below and decree passed by Court below could not be challenged.- [Muhammadan Law].

(d) West Pakistan Family Courts Act (XXXV of 1964)--

----Ss. 5 & 14---Constitution of Pakistan (1973), Art.199---Suit for maintenance of
children--Appellate Court upholding order of Trial Court in respect of amount of maintenance to
be paid by giving cogent reasons, held, could not be interfered with in Constitutional jurisdiction
of High Court.

Haji Saadullah Khan Mian Khel for Petitioner.

Malik Jahangir Khan Awan for Respondents.

Date of hearing: 10th October, 1989.

JUDGMENT

MUHAMMAD BASHIR KHAN JEHANGIRI, J.--Nadir Khan, petitioner, was married to

Mst. Zeenat Bibi somewhere in the mid-seventies and two daughters, namely, Mst. Farhat Bibi
and Mst. Nusrat Bibi were born from the converture. In the month of December, 1980, the
petitioner expressed his desire to contract second marriage which was obviously resisted by
respondent No.l. The petitioner got enraged and started giving beating to respondent No.l.
Ultimately, it is alleged, the petitioner after depriving her of her ornaments and other belongings,
turned her out of his house and contracted second marriage. In consequence, Mst. Zeenat Bibi,
respondent No.1 instituted three suits against the petitioner respectively for recovery of the
dower amount of Rs.2,000 and for recovery of maintenance for herself and also for her two
daughters under section 488 Cr.P.C. and for dissolution of her marriage. The petitioner, on his
part, brought a suit for restitution of conjugal rights. Upon contest being entered thereto, all the
four suits were consolidated and necessary issues were settled. During the course of the
proceedings, parties agreed to refer their disputes to arbitration. The Arbitrators returned their
award which was ultimately made rule of the Court. The learned Judge, Family Court, in
pursuance of the terms of the award, dismissed the two suits, namely, for maintenance of herself
and dissolution of her marriage, but awarded maintenance allowance at the rate of Rs.600 per
mensum for her children and decreed suit of the petitioner for restitution of his conjugal rights.

2. Plaintiff-respondent No.1 felt aggrieved of these decisions and preferred four appeals bearing
Nos.10/13, 11/13, 12/13 and 14/13 whereas the petitioner challenged the grant of maintenance
allowance to his two daughters by way of filing appeal No.13/13. The learned Additional District
Judge, Bannu, at Lakki, by a consolidated judgment dated 17-9-1988 while accepting the appeal
of respondent No.l granted a decree for dissolution of her marriage and dismissed the suit of the
petitioner for restitution of his conjugal rights. The order of maintenance and the decree for
recovery of dower amount was maintained.

3. Dissatisfied with the appellate order of the learned Additional District judge, the petitioner has
filed this writ petition.

4. Haji Saadullah Khan Mian Khel, the learned counsel for the petitioner, contended that the
view of the learned Additional District Judge that matrimonial matters cannot be referred to the
arbitration is erroneous, in that, such like matters can be validly and appropriately decided by
way of arbitration with a view to bringing about settlement between the parties. Mr. Mian Khel
next argued that the petitioner had contracted second marriage with the consent and free-will of
respondent No.1 and that in any case the long silence of respondent No.1 over the years was
tantamount to acquiescence and, therefore, she was devoid. of any cause of action to bring the
suit for dissolution of marriage. Lastly, the learned counsel for the petitioner submitted that the
learned Appellate Court had committed serious and material illegality in granting maintenance to
respondents 2 and 3, for, the petitioner had been trying his level best to take back the
respondents, but respondent No.l was adamant to live with them and thus the respondents were
absolutely disentitled to any maintenance and, therefore, the orders made in this respect are liable
to be quashed. Reliance was placed on Mohammad Aslam v. Judge Family Court (1987 C L C
247).

5. As against this, Mr. Muhammad Jehangir Awan, the learned counsel for the respondents,
urged that the learned Judge Family Court had fallen into a gave error to refer to arbitration the
disputes of matrimonial nature, such as the suits for dissolution of marriages and restitution of
conjugal rights. In support of this proposition, the learned counsel referred to: (1) Malka v.
Sardar (A I R 1929 Lahore 394); (2) Isherdas v. Viran Bai (A I R 1930 Lahore 707) and (3)
Muhammad Sulaiman v. Oadir Bux (P L D 1965 (W.P.) Karachi 326).

6. Relying on an earlier authority of Mira v. Dina (37 P.R. 1895) it had been held in Malka v.
Sardar (A I R 1929 Lahore 394) that the question of restitution of conjugal rights cannot be
referred to arbitration as that matter must be decided by the Court itself. While re -affirming this
veiw in Ishar Das v. Mst. Viran Bai (A I R 1930 Lahore 707) it was elaborated that though the
Court is not competent to refer the question of the exercise of its discretion in suits for restitution
of conjugal rights to arbitration but other matters in dispute between the parties as distinct from
the whole suit can be so referred and the Court can, on award of the arbitrators or the facts
determined by the arbitrators, decide whether it should or should not exercise the discretion in
favour of the plaintiff. Nonetheless the alternative contention of the learned counsel for the
petitioner that if the suit for restitution of conjugal rights could not be referred to the decision of
arbitrators, then the order of maintenance granted to the respondents Nos.2 and 3 for which
support was also sought from the decision of the Arbitrators is equally not maintainable stands
repelled by the dictum laid down in the case of Ishar Das. The Appellate Court could, therefore,
quite justifiably exercise its discretion in favour of the respondents qua the determination, of
maintenance allowance.

7. In the precedent case of Mohammad Sulaiman cited by the learned counsel for the
respondents, Waheed-ud-Din J., as his Lordship then was, in almost similar circumstances, has
held that the question of dissolution of marriage of any person is not amenable to the jurisdiction
of arbitrators and that, therefore, no dispute could be referred to them. These three authoritative
pronouncements had since long settled the proposition and we would reiterate it that suits for
restitution of conjugal rights and dissolution of marriage cannot be legally referred to arbitration.
This being so, we have no hesitation to hold that A the learned Appellate Court was perfectly
justified in ignoring that portion of the award which dealt with the disputes concerning the
restitution of conjugal rights and dissolution of marriage.

8. Learned counsel for the petitioner, as stated earlier, has invited our attention to the case of
Mohammad Aslam v. Judge Family Court for the proposition that where a child is staying away
from the father contrary to legal rights of his custody and guardianship, the father is not liable to
pay maintenance for such a child. It is not the case of the petitioner that his two daughters are
staying away from him against his wishes and contrary to his right of their custody and
guardianship, because the custody and guardianship of the daughters legally vests in the mother
till they attain puberty and the custody is duly made over to the father. In the instant case, both
the girls are minor and respondent No.1 being their mother would be legally entitled to their
custody and guardianship. We are, therefore, in respectful agreement with the proposition laid
down in the case of Mahammad Aslam cited above, but even in this precedent it has been clearly
held that undoubtedly there is no liability of the father to pay maintenance for a child who is
staying away from him against his wishes and contrary to his right of custody and guardianship
but otherwise, father's duty to maintain his children is absolute. We have already held that the
two minor respondents are not staying away from the petitioner contrary to his right of custody
and guardianship and g accordingly his duty to provide maintenance to them is absolute.

9. The Appellate Court held the view that the onus to prove that the petitioner had contracted
second marriage with the consent of respondent No.1 heavily lay upon the petitioner which he
had miserably failed to discharge. No C exception can possibly be taken to this finding of the
learned Appellate Court. The contention of the learned counsel for the petitioner has no
substance and stands repelled.

10. The learned counsel for the petitioner had serious objection to the grant of maintenance to the
tune of Rs.600 per mensum without any evidence inasmuch as the learned Appellate Court had
again placed reliance on the arbitration award which had not found favour with it for dissolution
of marriage. In this context, it was argued that the petitioner was a driver and allowance so fixed
was disproportionate to his earnings. In the circumstances of this case, we are of the opinion that
the learned Appellate Court had upheld the order of maintenance in toto for cogent reasons and
by invoking the findings of the arbitrators in this behalf.

11. For the foregoing reasons, the petitioner has not been able to make out a case for our
interference in exercise of our constitutional jurisdiction in the impugned orders. Resultantly, this
writ petition is dismissed with costs.

H.B.T./938/P Petition dismissed.