1. The background under which this writ petition has been filed is this. Mst. Iqbal Bibi and her daughter Wailat (minor) filed an application for the grant of maintenance as against Anwar Masih under section 488, Cr. P. C. But this matter was heard by Judge Family Court at Sialkot who vide his judgment dated 16th February, 1976 decreed that Rs, 75 per month should be paid as maintenance to Wailat (minor) A with effect from 16th October, 1975, the date of the institution of the said application till she was able to earn her own livelihood or her custody was taken by Anwar Masih.
2. This judgment was challenged by Anwar Masih in appeal which was heard by the District Judge, Sialkot who vide his order dated 5th January, 1977 accepted the appeal by stating that Family Courts Act was a branch of Muslim Family Laws which only governed the Muslims and not the Christians as the parties were. Consequently the impugned judgment and decree dated 16th February, 1976 of the Judge Family Court was set aside and the appeal was accepted. This order was subsequently reviewed by the District Judge, Sialkot, suo mow vide his order dated 15th April, 1977 in which he observed that it had been held in Gasper v. Jennifer that the Family Courts Act, 1964 was not applicable only to Muslims but also to the non-Muslims and that had there been any intention to limit the application of the said Act to the Muslims only, then the Act would have expressly said so. On this basis, according to the District Judge, Sialkot the impugned judgment and decree of the Judge Family Court were appealable and he while reviewing his earlier order proceeded to decide the appeal on merits. The appeal was heard on merits by his successor Mr. Khizar Hayat Khan, District Judge, Sialkot. A preliminary objection was raised before him that his predecessor was not competent to review his order. But be observed that he could not legally go into the objection and that if the petitioner1 appellant felt aggrieved, he could challenge the review order of his predecessor in the proper forum. Thus, he heard the appeal and dismissed the same with costs while maintaining the judgment and decree of the Judge Family Court. Anwar Masih petitioner aggrieved of the same filed the present writ petition In which he raised the contention that the District Judge had no jurisdiction to review his previous order and in this connection he placed reliance on Mst. Zainab Khatoon v. Mian Ghulam Shabbir and another to argue that the power of review was not inherent in the Court and that it had to be conferred by a Statute. The argument of learned counsel for the petitioner before me is That since there was no power of review granted by any Statute to the District Judge, his earlier judgment dated 5th January, 1977 accepting the appeal of the petitioner became final. It was then submitted that even on merits the respondent could have not moved any application for the grant of maintenance under the Family Courts Act as Family Courts Act was not applicable to the Christians. For this contention learned counsel relied on Mrs. Daphne Joseph v.
3. Malik Eric Roshan Khan in which it was laid down that in a case of dissolution of marriage between Christians the Divorce Act was applicable and the Family Courts Act was not applicable as Family Courts Act was a Provincial enactment which could not override the Central enactment, namely, the Divorce Act. On the basis of this reasoning learned counsel submits that if in the case of Christians the Divorce Act is applicable, then an application for maintenance could only be made under section 488, Cr. P. C. And not under the Family Courts Act. He, therefore, submitted that the application initially moved by the respondents which was heard and disposed of by the Judge Family Court at Sialkot was illegally made and the intial judgment and decree passed were void in the eyes of law.
4. ' The respondents had been intimated for today's date of hearing but they have neither appeared nor are represented by any counsel. I am afraid I cannot let this matter remain as it is and I must proceed in their absence as I have no other alternative except to proceed ex parte. The position in this case is that respondent No,
1. Did move an application wrongly described as under section 480, P. P. C. For maintenance which was heard and disposed of by the Judge Family Court at Sialkot.
5. Actually it should have been an application made under section 488, Cr. P. C. For maintenance and probably it was wrongly described as application under section 480, P. P. C. In any case, it could not be exclusivley heard and disposed of by a Magistrate as under the Family Courts Act the Judge Family Court has been given the powers of a Magistrate to dispose of an application for maintenance under section 488, Cr. P. C. In support of this proposition reliance may be placed on Adnan Afzal v. Capt.. Sher Afzal in which it was laid down (page 193) as under :- "With regard to a proceeding for maintenance under section 488 of the Code of Criminal Procedure, however. It has to be pointed out that the proceeding is of a summary nature and the maximum amount that a Magistrate can order thereunder is only Rs, 400 in the aggregate. No such limitation is fixed under the Family Courts Act, but the Family Court is also invested with the powers of a Magistrate for the purposes of section 488 of the Code of Criminal Procedure in addition to its powers as a Family Court. It, therefore, can exercise both the jurisdictions if so considered necessary. Again, no appeal lies from a proceeding under section 488 of the Code of Criminal Procedure. It can only be revised under section 435 and 439 of the Code of Criminal Procedure, but an order of a Family Court is appealable. This is a valuable right, for, a revision is not, like an appeal, a matter of right."
6. ' In the light of this Supreme Court authority the judgment and decree passed initially by the Judge Family Court at Sailkot were not a nullity in the eyes of law. The Judge Family Court was competent to pass an order on an application purported to be made under section 488, Cr. P. C. However, the order was appealable and the petitioner went in appeal challenging the same which was heard by the District Judge, Sialkot, who accepted the same vide his order dated 5th January, 1977, although it was illegally accepted. Since it was illegally and wrongly accepted, the District Judge proceeded2 3 4 to review his own earlier order vide order dated 15th April, 1977 which he was not competent to do.
7. Anyway, the matter was reopened by justifying the review and the appeal was decided on merits vide judgment dated 17th October, 1977 of the District Judge by which he rejected the appeal. The main argument of learned counsel is to the effect that once the appeal had been accepted and the judgment and decree of the lower Courts had been set aside by the District Judge, even if it had been wrongly done or illegally done by him, he could not have reopened the matter and to decide the appeal on merits by reviewing his earlier illegal order as he had no power (0 review.
8. There is substance in this argument for the reason that an illegal order passed by the District Judge bad attained finality as an appeal lay against the order passed by a Judge Family Court allowing maintenance under section 488, Cr. P. C. Before the District Judge and this appeal was illegally accepted by him. Had the respondent also challenged the order of the District Judge, Sialkot, dated 5th January, 1977, by way of writ petition on the ground that it had been wrongly passed or that the appeal had been illegally accepted, then the effect of that might have been the restoration of the order passed by the Judge Family Court on 16th February, 1976. However, the respondent has not challenged the said appellate order and it has attained finality in that sense of the term. On the other hand, the petitioner challenged the subsequent appellate order dated 17th October, 1977 on the ground that it had been illegally passed as there was no power of review conferred on the District Judge and he had wrongly reviewed his earlier order in the exercise of a power of review which did not exist.
2. The result of the above discussion is that the orders of the District Judge dated 15th April, 1977 and 17th October, 1977 are hereby set aside as having been passed illegally and without lawful authority This leaves in the field the order of the District Judge dated 5th January, 1977 whereby he accepted the appeal and set aside the judgment and decree of the Judge Family Court, Sialkot, dated 16th February, F 1976 and since it was not challenged by way of writ petition, it should be deemed to have attained finality, even though it was defective and illegal order. This writ petition is accordingly disposed of. 1976 P Cr. L J 307 PLD 1965 SC 55 PLD 1978 Kar. 336 PLD 1969 SC 187