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Criminal Revision No. 1419 of 1967, decided on 25th March 1969.

read with West Pakistan Family Courts Act (XXXV of 1964), Ss. S & 20 and Sched.‑Maintenance‑Government, by Notification under S. 20 of Act, investing Family Courts with powers under S. 488, Cr. P. C.‑Magistrates, held, ceased to have jurisdiction even in pending cases.

Noor Zaman v. Mst. Saidano P L D 1967 Pesh. 343 and Sh. Muhammad Aslam v. Javed Akhtar and others 1968 P Cr. L J 525 ref.

Adnan Afzal v. Capt. (Now Major) Sher Afzal 1968 P Cr. L J 1834 fol.

Farrukh Amin for Petitioner.

Ch. Muhammad Ahmad for Respondent.

This revision petition arises out of the following facts:‑

The petitioner was married to Mst. Hajra, respondent, about 16 or 17 years ago. They have five children during the wedlock, out of whom two died and three are still alive. Out of these three children, two are sons, namely, Fazal Karim and Abdul Karim, aged about 13 and 5 years, respectively. The third is a daughter named Shamshad and is about eight or nine years old.

2. On 19^th of April 1966, Mst. Hajra filed an application under section 488 of the Criminal Procedure Code (hereinafter called the Code) in the Court of Mr. Makhdum Ali, Magistrate First Class, Multan, alleging that she had been turned out by her husband eleven months before the filing of the application and he had failed to maintain her and his three children. Mst. Hajra further stated in her application that she and the three children were living with her parents who were too poor to maintain them. She asked for grant of Rs. 200 per month maintenance for herself and her children.

3. It transpired during the proceedings that Mustaqeem had divorced Mst. Hajra on 16th of March, 1966. He produced a certificate of the Chairman of the Union Council concerned cowing that divorce had been effected on 16th of March 1966. The learned Magistrate held on that account that Mst. Hajra was not entitled to any maintenance as she had been divorced. During the proceedings, Mustaqeem offered to maintain the children. The learned Magistrate found that he had neglected to maintain them for about two years and the claim of Mst. Hajra that he should pay maintenance for his children was, therefore, justified.

4. The learned Magistrate found on the basis of the evidence led before him by the parties that Mustaqeem was the owner of half square of land on which a tubewell had been fixed. It was also found that he derived additional income by trade in milch animals. The learned Magistrate came to the conclusion Shat his monthly income was at least Rs. 300 per month. He ordered the payment of Rs. 30 per child for Fazal Karim and Shamshad and Rs. 20 for the youngest son Abdul Karim. In the order, the learned Magistrate has erroneously calculated this amount as Rs. 70 while it actually comes to Rs. 80.

5. A revision petition was filed in the Sessions Court :find was decided by Mr. Rasul Bakhsh Khan Leghari, Additional Sessions Judge, Multan. The learned Additional Sessions Judge upheld the order of the Magistrate. Before him, a question with regard to the jurisdiction of the learned Magistrate to award maintenance was raised. It was contended that section 5 of the West Pakistan Family Courts Act of 1964 (hereinafter called the Act) ousted the jurisdiction of the Magistrate to pass any order under section 488 of the Code. The learned Additional Sessions Judge repelled this contention and held that the jurisdiction of the Magistrate to award maintenance to the ,:hildren of Mustaqeem was not excluded by the provisions of ie Act. The learned Sessions Judge distinguished the provisions off section 488 of the Code on the ground that under these ;)rovisions maintenance could also be provided to illegitimate children.

6. In the present revision petition, the question of Jurisdiction of the learned Magistrate to grant maintenance has again been raised. It has been submitted by Mr. Farrukh Amin, the learned counsel for the petitioner that section 5 of the Act gives exclusive jurisdiction to the Family Courts for determination of the matters mentioned in the Schedule to the Act Item No. 3 of the Schedule deals with, maintenance. Reference was also made to section 20 of the Act which reads as follows :

Section 20.‑"Government may invest any Judge of a Family Court with powers of Magistrate First Class to make order for maintenance under section 488 of the Code of Criminal Procedure."

It was submitted on the basis of the reading of the above sections that the Magistrates were divested of the jurisdiction to grant maintenance under section 488 of the Code and this jurisdiction now completely vested in the Family Courts. The learned counsel, in this connection, referred to Noor Zamaa v. Mst. Saidano (P L D 1967 Pesh. 343) and Sh. Muhammad Aslam v. Javed Akhtar anti others (1968 P Cr. L J 525). These judgments support the submission made by the learned counsel.

7. The Government invested the Family Courts with powers under section 488 of the Code vide Notification No. Integ. 10‑31‑64/1, dated 5th of April 1966, under section 20 of the Act. The present application was filed on 19th of April 1966. If the conferment of above powers on the Family Courts, has the effect of divesting the Magistrates of their powers under section 488 of the Code, then it has to be held that the learned Magistrate in this case had no jurisdiction to deal with the present matter.

8. I had my own views about the matter and had actually dictated a lengthy judgment differing with the views expressed in the authorities relied upon by the learned counsel for the petitioner. While my judgment was under type, I was told that the question whether the Magistrates retained any jurisdiction under section 488 of the Code after the publication of the notification under section 20 of the Act was to come up shortly before the Supreme Court.

9. While granting leave in three connected cases in Adnan Ajzal v. Capt. (Now Major) Sher Afzal (1968 P Cr. L J 1834) their Lordships had repelled the contention that the Magistrates still continued to exercise jurisdiction under section 488 of the Code. It was. observed as follows :‑

"Learned counsel has raised two contentions. It has first been argued that the Act has not affected the jurisdiction .of Magistrates under section 488, Cr. P. C. and that appears clear from the provisions of section 20 of the Act. We do not find any force in this argument as the Schedule to the Act read with section 5, clearly gives exclusive jurisdiction to the Family Court to deal with the question of maintenance. Section 20, empowers the Provincial Government to invest any Judge of a Family Court with powers of a Magistrate of the First Class to make order for maintenance under section 488, Cr. P. C. The underlying idea appears to be to authorise a Judge to follow the procedure contemplated by section 488. This provision, however, does not indicate that the powers of Magistrate under section 488, Cr. P. C. have not been taken away by the Act."

10. The three appeals in the above cases namely, Cr. A. Nos. 49,50 and 51 of 1968, were decided by the Supreme Court on 6th of February 1969. Their Lordships have not only upheld the view expressed above, but have also held that this being a matter of procedure, even the pending cases are affected retrospectively. The dictum of their Lordships shows that after the notification published under section 20 of the Act, the Magistrates ceased to have jurisdiction even in the pending cases.

11. The result is that the revision petition is allowed and the orders of the learned Magistrate and that of the Additional Sessions Judge are set aside. The respondent shall, however, be free to move the Family Court in this regard. The original application may be returned to the respondent for representation, to the proper Family Court.

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