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Criminal Revision No. 472 of 1972, decided on 19th April 1973.

‑‑‑‑ S. 488‑Maintenance---‑Jurisdiction‑West Pakistan Family Courts Act (XXXV of 1964)‑Bars jurisdiction of criminal Courts for passing maintenance order‑Order passed by criminal Court after enforcement of Act XXXV of 1964‑Without jurisdiction, and nullity in law‑West Pakistan Family Courts Act (XXXV of 1964), S. 5.

Muhammad Kazim Hussain v. Mst. Aziz Fatima P L D 1971 Kar. 759; Adan Afzal v. Capt. Sher Afzal P L D 1969 S C 187 and Alifdin v. Mst. Parvin Akhtar P L D 1970 S C 75 ref.

M. A. Karim Malik for Petitioner.

Ch. Munir Ahmad for Respondent.

Date of hearing : 6th December 1972.

In this reference under section 438, Cr. P. C., the learned Additional Sessions Judge, Lahore, has recommended that the order dated 17‑3‑1966, passed by Mr. Rashid Ahmad, M. I. C., Lahore, whereby he allowed a maintenance of Rs. 60 to the two children of Mst. Sharaf Sultana, respondent herein, and the order dated 7‑10‑1971, passed by Mr. M. Anwar, M. I. C., Lahore, allowing arrears of the allowance which the petitioner refused to pay after 17th of January 1970, be quashed.

2. The brief facts leading to this revision petition are that Mst. Sharaf Sultana filed an application under section 488, Cr. P. C. on 24‑2‑1966 for the maintenance of her two children. The learned Magistrate (Mr. Rashid Ahmad) granted the application and Sh. Muhammad Rashid, petitioner, was directed to pay a sum of Rs. 60 as maintenance, vide order dated 17‑3‑1966. The petitioner paid the maintenance up to 17th of January, 1970 and thereafter refused to pay the maintenance. Mst. Sharaf Sultana, respondent herein, on 2‑3‑1971, filed an application to the District Magistrate, Lahore, claiming Rs. 780 as arrears from 17‑1‑1970 to 17‑2‑1971. This application was accepted by Mr. M. Anwar, M. I. C. Lahore vide his order dated 7‑10‑1971.

3. Feeling aggrieved from the above order, the petitioner preferred a revision petition and the learned Additional Sessions Judge, Lahore, vide his order dated 7‑4‑1972 has forwarded the proceedings for revision, on the ground that the West Pakistan Family Courts Act was enacted in 1964 and according to the Gazette of Pakistan (Extraordinary), dated 2nd of November 1965, it was enforced in Lahore District, whereas the impugned order granting maintenance was passed on 17‑3‑1966. Relying on Muhammad Kazim Hussain v. Mst. Aziz Fatima (P L D 1971 Kar. 759) the learned Additional Sessions Judge has recommended for the quashment of both the impugned orders.

4. Learned counsel for the petitioner, Sh. Muhammad Rashid, contending that the impugned order dated 17‑3‑1966, granting maintenance, was ab initio void having been passed by the learned Magistrate without jurisdiction inasmuch as in view of the Supreme Court authorities, Adnan Afzal v. Capt. Sher Afzal (P L D 1969 S C 187) and Alifdin v. Mst. Parvin Akhtar (P L D 1970 S C 75) the Criminal Courts ceased to have jurisdiction in dealing with such matters, with the enforcement of the West Pakistan Family Courts Act (XXXV of 1964), which came into force in Lahore District on the 2nd of November 1965. Similarly the order dated 7‑10‑1971 passed by the learned Magistrate directing the petitioner to pay the arrears of maintenance is a nullity having been passed without jurisdiction. Learned counsel for Mst. Sharaf Sultana was not able to cite any authority of the Supreme Court in which contrary view had been taken.

5. Having considered the position in the light of the above‑referred two authorities of the Supreme Court, I am in no manner of doubt that the learned Magistrate ceased to have jurisdiction in the matter with effect from 2nd of November 1965, that is, the date of enforcement of West Pakistan Family Courts Act, 1964, in the District of Lahore. In view of the above position, the reference is allowed and the orders dated 17‑3‑1966 and 7‑10‑1971 are quashed.

Reference allowed.

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