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Criminal Revision No. 1005 of 1965, decided on 2nd August 1968.
S. 488‑Maintenance Application by wife‑Husband pleading that he had divorced his wife‑Plea not proved by evidence‑Held, without merit‑Order of maintenance passed by Magistrate maintained‑Quanium of maintenance, however, reduced in circumstances of case.
Ch. Muhammad Sadiq for Appellant.
Ch. Ghulam Rusool Waraich for Respondent.
This revision petition is at the instance of Hidayat Ullah and directed against the order of Magistrate 1st Class, Montgomery, dated 23rd November 1965, whereunder on the appli cation of his wife Mst. Fazal Bibi under section 488, Cr. P. C. he was directed to pay maintenance at the rate of Rs. 40 to her and Rs. 30 each to her two children, namely, Muhammad Aslam, aged 18 years, and Mst. Nasim Akhtar, aged 9 years.
2. The facts leading up to this revision petition briefly are that Mst. Fazal Bibi was admittedly the third wife of the petitioner. The couple were married in District Ferozepur in the year 1946. The couple migrated to Pakistan and lived in Montgomery. On 18th July 1964, Mst. Fazal Bibi instituted an application for maintenance for herself and her two children referred to above.
3. The principal defence taken by the petitioner was that he had divorced Mst. Fazal Bibi migrating to Pakistan after learning that Mst. Fazal Bibi before marriage to him was already in the wedlock of one Mahand son of Niaz Ali of Bhagwan Fatehpur, District Ferozepur, who was still alive, and that this fact had been suppressed by Mst. Fazal Bibi and her brothers. The petitioner in support of the plea of divorce relied on a divorce deed dated 4th October 1948 (Exh. D. A.). The petitioner examined one Muhammad Hayat, Khushi Muhammad and Muhammad Ali in support of the plea of divorce. Khushi Muhammad is the son of one Muhammad Hussain Petition‑writer who was the scribe of the divorce deed (Exh. D. A.) was in the handwriting of his father, but he did not produce the relevant register evidencing the execution of the divorce deed and the fact that the divorce deed (Exh. D. A.) was scribed by his father, on the ground that the relevant register was not available, though the other registers were in his house. Abdul Ghani tried to prove the handwriting of Nurud‑Din one of the attesting witnesses was his old class‑fellow. Muhammad Hayat P. W., who is the son‑in‑law of the petitioner, testified about the divorce deed.
4. Mst. Fazal Bibi examined some witnesses to the effect that she had not been divorced and that the petitioner who was a retired Sub‑Inspector was possessed of property to maintain his wife and children, but refused to do so.
5. The learned Magistrate disbelieved the plea of divorce and thought that the divorce deed (Exh. D. A.) was not proved and expressed doubts about its genuineness. He accordingly passed an order directing the petitioner to pay a total sum of Rs. 100 p.m. as maintenance to Mst. Fazal Bibi and her two children.
6. The following three points were urged on behalf of the petitioner : ‑
(1) That the order of maintenance was without jurisdiction in view of the passing of the West Pakistan Family Courts Act, 1964 amended up‑to date (hereinafter to be referred to as the Family Courts Act) read with West Pakistan Family Courts Rules, 1965, in particular when on 2nd November 1965, under Gazette of West Pakistan, Extraordinary, No. Intg. 10‑31/64(i) the Governor of the West Pakistan enforced the Family Courts Act to Montgomery before the impugned order was passed.
(2) That the learned Magistrate erred in not accepting the plea of divorce.
(3) That the quantum of maintenance was excessive regard being had to the financial status of the petitioner.
7. There is no merit in the first objection in that notwith standing section 5 of the Family Courts Act conferring exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule on the Family Courts, the powers of ordering maintenance under section 488, Cr. P. C. were conferred on all the Judges of the Family Courts with powers of Magistrate of First Class, vide L. D. Notification No. Integ. 10‑31/64/1, dated the 5th April 1966. To put it differently, acting under section 20 of the Family Courts Act, the Judges of the Family Courts were invested with the powers of Magistrates 1st Class to make order of Criminal Procedure Code, on 5th April 1966, i.e. long after the impugned order was passed, with the result that the impugned order of the Magistrates cannot be called into question for want of jurisdiction. In other words, the Family Courts had no jurisdiction to hear or make order for mainten ance under section 20 of the Family Courts Act before 5th April 1966.
8. There is also no merit in the plea of divorce in that the learned Magistrate rightly repelled the plea of divorce as also the reasons which weighed with the petitioner for divorcing his wife. Mst. Fazal Bibi was the first cousin of the petitioner and they were residing in the same Mohalla, and therefore it is fantastic to A suggest that he was unaware of Mst. Fazal Bibi being married to one Mahand. The learned‑Magistrate also rightly rejected the divorce deed (Exh. D. A.) not to be genuine and proved in that the petitioner had not been able to prove its execution. One of the marginal witnesses, namely, Muhammad Hayat, was admittedly the son‑in‑law of the petitioner. The handwriting of the scribe had not been properly proved in that the son of the scribe Khushi Muhammad did not produce the register of his father who was a Petition‑writer showing the factum of the entry of the divorce deed (Exh. D. A.).
9. This brings me to the last point with regard to the quantum of maintenance. Regard being had to the fact that the petitioner is a retired Sub‑Inspector and the further fact that owns a flour and rice mill and a few kanals of land, I think the quantum of maintenance is rather excessive having regard to the fact that he has two other wives and children to support.
10. I accordingly while maintaining the order of mainten ance reduce the quantum of maintenance of Mst. Fazal Bibi and her two children to Rs. 25 each, i.e. total amount of Rs. 75 (rupees seventy‑five) p.m. instead of the aggregate amount of Rs. 100 p.m.
Order accordingly.
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