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Criminal Revision Application No. 404 of 1965, decided on 27^th September 1966.

S. 488--Mainten ance-Sons aged over 8 years in custody of mother---Neither entitled to maintenance so long as she keeps there---Father absolved from giving maintenance only as and when he gets their custody.

S. 439 read with Ss. 488 & 489--Quantum of maintenance granted under S. 488 allegedly excessive---Remedy for having amount reduced does not lie in revision under S. 439-Applicant can go to lower Court under S. 489 for purpose.

S. 439---Finding of fact---Concurrent finding of fact by two lower Courts--High Court cannot upset same and substitute its own finding.

S. 7(1) Divorce----Notice not established to have been given to Chairman ----Divorce, held, not effective.

S. 439 read with S. 488 and Muslim Family Laws Ordinance (VIII of 1961), Ss. 7 & 9-Application for maintenance by wife against husband-Husband pleading that he had divorced his wife-Legality or otherwise of alleged divorce cannot be gone into in revisional jurisdiction under S.439.

M. H. Junejo for Appellant.

Khalid Ishaq for Respondents.

Ale Raza for the State.

Dates of hearing: 29th August and 5th September 1966.

This is a revision application filed against the order of the Sessions Judge, Karachi, dated the 18th of September 1965. It arises out of the following facts.

2. Mst. Mehrunnissa made an application for maintenance for herself and for her five children under section 488, Cr. P. C. in the Court of Mrs. Suraiya Ahmed Pai on the 9th of July 1964. This application was, accepted and an order granting maintenance of Rs. 150 per month to Mehrunnissa and Rs. 75 each to her five children was passed on the 10th of May 1965. The total amount of maintenance granted to Mst, Mehrunnissa and her five children was Rs. 525 per month. Against this order passed by Mrs. Suraiya Ahmed Pai a revision application was filed before the Sessions Judge, Karachi, which was dismissed on the 18th of September 1965. It is against this order of the Sessions Judge that the present revision application has been filed.

3. The facts out of which this revision application arises are that the applicant Muhammad Siddique and Mst. Mehrunnissa were husband and wife and had lived together as such for considerably a long time. They somehow fell out with each other in consequence where of Mst. Mehrunnissa was made to live separately from her husband. On the application for maintenance filed by Mst. Mehrunnissa for herself and her five children the defence taken by Muhammad Siddique was that he had divorced his wife and as such was not required in law to pay maintenance for her. He also took up the plea that for his sons who were over eight years' of age he would not in law be required to pay maintenance as he was prepared to take them over and maintain them. Both the Courts below have considered these propositions and decided against the applicant.

4. The learned counsel for the applicant has contended before me:

(1) that the divorce granted by the applicant to Mst. Mehrunnissa is valid and as such the order of maintenance in respect of her is bad,

(2) that the maintenance allowance could not be granted to at least three sons who were over the age of eight years for whose custody the applicant was constantly making a demand, and

(3) that the quantum of maintenance allowed to Mst. Mehrunnissa and her children is excessive in view o" the latest position of income of the applicant.

5. With regard to point No. 2, the admitted position on the record is that the applicant's three sons, who are said to be over the age of eight year, are in the custody of Mst. Mehrunnissa and so long as she keeps them she will obviously required maintenance for them. The applicant will definitely be absolved from giving maintenance allowed for them as and when he get their custody.

6. With regard to point No. 3, the remedy of the applicant does not lie in coming to this Court in revision under section 439. Cr. P. C. and have the amount of maintenance reduced. It lies in the applicant going to the lower Court under section 489, Cr. P. C. and placing his changed circumstance before, that Court for the purpose of having the amount of maintenance reduced. He can, if advised, come to this Court if he feels aggrieved with the order passed by tile lower Court.

7. So far as point No. 1 is concerned, the contention put forward by the applicant before the lower Courts was that he had divorced his wife under a letter dated the 16th of December 1963 which according to him had been sent to Mst. Mehrunnissa. He had also filed a copy of the notice given to the Chairman Saddar Union Committee, on the same date under the Muslim Family laws Ordinance, 1961. He had filed notice by the Chairman dated the 19th December 1963 calling upon hips to appear before him. The order of the Chairman dated the 12^th of March 1964 has also been filed which inter alias mentions that the divorce allegedly given by the applicant was ineffective and inoperative in law. These arguments had been considered by the two Courts below along with the evidence of the Chairman Shaikh Abdul Rahim. Both the Courts below have been of the view that there is no evidence on the record substantiating the allegation of the applicant that he had given notice to the Chairman for divorcing his wife as required under the Ordinance. The evidence of Shaikh Abdul Rahim himself is to the effect that no notice was given to him for the divorce of Mst. Mehrunnissa. It is admitted by the learned counsel for the applicant that the divorce given by the applicant will not be effective and will not operate as a bar to the maintenance allowance being given to the wife if it was held that the applicant had not given any notice as required under the Ordinance to the Chairman for divorce of his wife. The evidence, as I have said both documentary and oral has been discussed chapter and verse by both the Courts and their finding is that the fact of the applicant having given a notice to the Chair man has not been proved. The finding of both the Courts below on whether a notice was given to the Chairman or not is a finding of fact. In view of there being a concurrent finding of the two Courts below on this question of fact. I find it difficult to upset it and substitute my own finding. In view of the admission made by, the counsel for the applicant that non-giving of a notice by the applicant to the Chairman under the Ordinance will not make the divorce effective, I have no option but to accept the finding of fact by the two Courts below and come to the conclusion that the divorce given by the applicant is not effective on account of the notice under the Ordinance not having been established by him to have been given to the Chairman.

8. However, exercising my revisional jurisdiction under section 439, Cr. P. C., I cannot go into the legality or otherwise of the divorce given by the applicant to Mst. Mehrunnissa. Under these circumstances, I see no force in the revision application and hence dismiss it. The order of stay granted by this Court stands vacated.

Petition dismissed.

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