Find a Lawyer

(On appeal from the judgment and order of the High Court of Sind and Baluchistan, Karachi, dated the 21st September 1970, in Criminal Revision No. 62 of 1970).

S. 488 and West Pakistan Family Courts Act (XXXV of 1964), Ss. 5 & 20‑Sections 5 & 20 of Act XXXV of 1964 vis‑a‑vis S. 488, Cr. P. C. Magistrate dealing with matter under S. 488, Cr. P. C. ceased to have jurisdiction in respect of scheduled matters from date Act XXXV of 1964 enforced.

Adnan Afzal v. Capt. Sher Afzal P L D 1969 S C 187 ref.

Riaz Hashmi, Senior Advocate Supreme Court instructed by V. A. Kidwai, Advocate ‑on‑Record for Petitioner.

Nemo for Respondents.

Dates of hearing : 11th and 12th January 19 71.

.‑The petitioner filed an application under section 488, Cr. P. C. for her maintenance and for the maintenance of her children, Mst. Najma, Mst. Saleha, Mst. Jehan Ara and Syed Abid Hussain at the rate of Rs. 250 per month from the respondent in the Court of S. D. M., Mirpur Khas. During the pendency of the application, the provisions of West Pakistan Family Courts Act, 1964, were applied to the District of Tharparkar by notification dated the 21st February 1967. In spite of this, the above application proceeded before the Magistrate concerned and no objection was taken to the jurisdiction of the Court. On the 30th October 1967, the learned S. D. M. granted maintenance to the petitioner at the rate of Rs. 150 per month. Respondent filed revision petition against this order in the Court of Sessions which was dismissed on the 31st July 1968. In this revision the respondent raised an objection about the jurisdiction of the Magistrate to grant maintenance. This order was challenged in the High Court in further revision. In the revision, no objection was taken about the jurisdiction of the Magistrate to grant maintenance. The revision was summarily dismissed on the 23rd September 1968.

After the dismissal of the revision application, the learned S. D. M. issued notice on the 19th May 1969, calling upon the respondent to deposit the sum of Rs. 3,903.98 as arrears of maintenance. The respondent again challenged this order in the Sessions Court on the revisional side and contended that the order of the S. D. M. was without jurisdiction. This application was dis missed on the 17th April 1970. The matter was again taken to the High Court on the revisional side which was admitted for regular hearing. A learned Single Judge of the High Court in Criminal Revision No. 62 of 1970, has come to the conclusion that the West Pakistan Family Courts Act, 1964, being procedural ill nature also affected the pending proceedings and the Magistrate lost jurisdiction under section 488, Cr. P. C. in respect of scheduled matters from the date the Family Courts Act was enforced. It was, therefore, held that the, S. D. M. could not issue notice calling upon the applicant to pay the arrears of maintenance. This order is being challenged in this petition for special leave to appeal.

Mr. Riaz Hashmi, learned counsel for the petitioner, has contended that the view of the High Court is based on the decision of the Supreme Court in the case of Adnan Afzal v. Capt. Sher Afzal (PLD 1969SC 187). In that decision, it was held that sections 5 and 20 of the West Pakistan Family Courts Act, 1964, vis‑a‑vis, section 488, Cr. P. C., has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. The learned counsel contended that the decision of the Supreme Court does not affect past and closed transaction even, if the impugned order is found without jurisdiction. The contention of the learned counsel has riot impressed us. It is not disputed that according to the decision of this Court in the 'above‑mentioned case, the Magistrate has lost jurisdiction under section 488, Cr. P. C. in respect of scheduled matters from the date the Family Courts Act was enforced. Thus it is quite clear that the order of the learned S. D. M., Mirpurkhas is without jurisdiction and a nullity in the eye of law. In these circumstances, the High Court was perfectly justified in setting aside the order of the S. D. M. dated the 19^th May 1969, calling upon the respondent to deposit the arrears of maintenance. This was a fresh order and could be challenged on the ground that it was passed without jurisdiction. In these circumstances, there is no force in the petition which is dismissed. The proper remedy for the petitioner is to move the Family Court for the redress of her grievance which we hope will be disposed of as quickly as possible.

Leave refused.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.