1. ' Petitioner Shabbir Ahmed has invoked Constitutional jurisdiction of this Court in assailing the judgment and the decree given in Family Suit No,14 of 1986 by the Family Court, Mirpur Mathelo Admittedly the petitioner's marriage was solemnized with respondent No,1 Ghulam Sakina at village Muhammad Siddique Kalwar, Taluka Mirpur Mathelo, District Sukkur about 30 years before filing of.
2. Family Suit No, 14/86. They lived together and were blessed with eight children viz. 4 sons and 4 daughteRs, Later on there was separation between the husband and the wife. The petitioner filed a suit against the respondent No,1 for restitution of conjugal rights and the same was decreed on 16- 11-1987.
3. ' In her Family Suit No, 14 of 1986 the respondent No,1 claimed from the petitioner maintenance allowance for seven of her eight children, at the rate of Rs,1,250 per month for past one year as well as for the future. She alleged that one year prior to filing of said suit, the petitioner forcibly turned her out with her children after snatching her ornaments, clothes and other articles. Respondent No,1 alleged that the petitioner did not allow her to stay with him although she was willing to reside with him alongwith her children. Respondent No,1 claimed to be living with ther father and passing difficult days. Petitioner was said to be a wealthy person, being landlord besides serving as Headmaster of a Primary School.
4. ' The said case was contested by the petitioner who in his written statement challenged maintainability and form of the suit and jurisdiction of the trial Court at Mirpur Mathelo. Petitioner conceded that as husband he was bound under the Mahomedan Law to maintain the respondent No,1 provided she lived in his house as wife and performed marital rights. It was alleged that the respondent No,1 left house of the petitioner without his consent and she started living with her sons who were earning over Rs,3,000 per month. Petitioner expressed his willingness to maintain the respondent No,1 if she lived in his house. Petitioner showed his willingness to bring the respondent No,1 and his minor children in his house and maintain them. He alleged that father of the respondent No,1 was bad charactered and wanted to dispose of his daughters to other persons.
5. ' The trial Court framed the following issues:--
(1) Whather the suit is not maintainable in law?
(2) Whether the suit is not in proper form?
(3) Whether the suit is barred under the provisions of Mohammadan Law?
(4) Whether this Court has got no jurisdiction?
(5) Whether the father of the plaintiff gave 5 tolas golden ornaments and other articles worth Rs,2,000 to the plaintiff at the time of marriage?
(6) Whether the defendant is man of bad character and maltreated the plaintiff and drove her out from his house after snatching all the articles given by her father and since one year she is residing in the house of her father alongwith all the issues?
(7) Whether the plaintiff persuaded the defendant for her maintenance and that of the maintenance of her children for which the defendant is legally bound?
(8) What should the decree be?
6. ' From the side of respondent No,1 she alone was examined on 27-8-1987 when her side was closed.
7. Matter was adjourned to 30-8-1987 for evidence of the petitioner. On said date petitioner moved application for adjournment which was rejected and side of the petitioner was closed and the matter was adjourned to 1-9-1987 for post-trial proceedings but the parties failed to attend the Court. Thereafter arguments from the side of the respondent No,1 were heard on 10-9-1987 when the petitioner and his counsel were called absent. Thereafter on 17-9-1987 the suit was decreed.
8. ' Said judgment and decree dated 17-9-1987 were challenged by the petitioner in Family Appeal No,21 of 1987. Under a judgment and the decree dated 7-1-1988 the District Judge, Sukkur set aside the impugned judgment and the decree dated 17-9-1987 and remanded the suit to the trial Court for disposal according to law.
9. ' After remand of the suit the trial Court directed Court notices to be issued to the parties and their counsel. Counsel for the respondent No,1 readily appeared but neither the petitioner nor his counsel responded to the process which was repeated for the petitioner time and again. Ultimately on 8-1- 1989 the trial Court ordered service of the petitioner by publication. The publication in question took place but neither the petitioner attended the trial Court nor his counsel. On 19-3-1989 service of the petitioner was held good and the matter was fixed on 2-4-1989 for cross-examination of the respondent No,1. On 2-4-1989 neither the petitioner nor his counsel appeared to cross-examine the respondent No,1, who was present. Hence side of the petitioner to cross-examine respondent No,1 was closed. Matter was then fixed on 16-4-1989 for evidence of the petitioner. On 16-4-1989, the petitioner was not present and so also his counsel and his side was closed. A date was fixed for post-trial proceedings and thereafter on 30-4-1989 suit of the respondent No,1 was again decreed.
10. ' On 6-11-1989 an application under section 9 (6) of the West Pakistan Family Courts Act (hereinafter to be mentioned as the Act) was moved for setting aside of the decree. Said application was dismissed on 25-1-1990 by the trial Court, which thought that the petitioner wanted to give mental torture to the respondent No,1, by protracting proceedings of the case. It was after this that the petitioner filed Family Appeal No,2/1990 on 30-1-1990 challenging the judgment dated 30-4-1989 and the decree dated 4-5-1989. Said appeal was however dismissed in limine on 4-3- 1990 on the sole ground that it was hopelessly time-barred. Hence this Constitution petition.
11. ' Mr. A.M. Mobeen Khan, learned counsel for the petitioner argued that Suit No, 27/86 filed by the petitioner against the respondent No,1 in a Family Court at Kandhkot for restitution of conjugal rights was decreed on 16-11-1987, and in presence of such decree the respondent No,1 had no legal right to stay away from the petitioner in defiance of the decree and claim maintenance. It was next argued that children of the petitioner living with the respondent No,1 cannot claim maintenance under the Muslim Family Laws Ordinance (hereinafter to be mentioned as the Ordinance) which had recognized right of wife only to claim maintenance as per section 8 of said Ordinance. It was also argued that a number of children of the petitioner from the respondent No,1 were major and maintenance could not be claimed for them. Learned counsel termed the suit to be bad for non- joinder of those children for whom maintenance was claimed. The Family Court which granted the decree, was alleged to have violated section 8 (6) of the Act, which deals with issuance of summons to the defendant to appear on a date specified therein. In respect of the dismissal of Family Appeal No,2/1990 learned counsel for the pettitioner argued that when trial Court has been empowered to set aside a decree under section 9 (6) of the Act why such powers cannot be exercised by the Appellate Court. He also argued that Family Appeal No,2/90 was field after dismissal of the application under section 9 (6) of the Act on 25-1-1990, and hence said appeal filed on 30-1-1990 was not time-barred. Referring to section 488 of Cr.P.C., learned counsel argued that said section was deleted by Law Reforms Ordinance, 1972 and hence children of the deceased had no right to seek maintenance as they were not covered by section 9 of the Ordinance. In support learned counsel for the petitioner cited the cases of:
(1) Khurshid Ahmed v. Attiya Nigar and others (1990 CLC 297).
(ii) Saleem Ahmed v. Mst. Khadija Begum and others (PLD 1977 Kar. 469).
(iii) Jamal Shah v. Azad Government of State of Jammu and Kashmir and others (1991 MLD 1243).
(iv) Mst. Shamim Akhtar v. Additional District Judge, Sialkot and another (1991 CLC 1142).
(v) Mst. Bibi Musarrat v. Sarfraz (1990 CLC 1908).
(vi) M/s. Landhi Industrial Trading Estates Ltd., Karachi v. Government of West Pakistan (1970 SCMR 251).
12. ' Mr. Parya Ram, learned counsel for the respondent No,1 argued that Appeal No,2/90 filed on 30-1- 1990 was directed against the judgment dated 30-4-1989 and the decree dated 4-5-1989 and it should have been filed in terms of Rule 22 of West Pakistan Family Courts Rules (hereinafter to be mentioned as the Rules) by 30-5-1989 and as such the appeal was time-barred. It was next argued on behalf of the respondent No,1 that main decree cannot be challenged in appeal when it was challenged unsuccessfully under section 9 (6) of the Act. It was also argued that a Family Court can order maintenance for the children in view of section 20 of the said Act. Learned counsel for the respondent No,1 next argued that maintenance can be claimed by a major child as well as by a wife despite decree for restitution of conjugal rights against her. In respect of compliance with section 8 of the Act by the Family Court, it was contended that such compliance was already made before remand of the case when the petitioner contested the suit and filed written statement and that after remand the trial Court was concerned with service of the petitioner by any of the modes recognized by law and not necessarily in terms of section 8 of the Act. The decree passed against the petitioner was defended to be legal and proper. In support learned counsel for the respondent No,1 cited the cases of:
(i) Shah Muhammad v. Ghulam and another (PLD 1970 SC 1%).
(ii) Noor Zaman v. Mst. Saidano (PLD 1967 Pesh., 343).
(iii) Muhammad Afsar v. Mst. Munawar Jan (PLD 1961 Lah. 199).
(iv) Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187).
(v) Muhammad Usman v. Mst. Amna and others (1972 SCMR 131).
(vi) Mst. Ismat Khanum Toor v. Rao Riaz Ali Khan and others (1978 SCMR 335).
13. ' When the suit for maintenance was decreed for the second time on 30-4-1989 the petitioner had right to file appeal under section 14 of the Act, but he had no right to move application under section 9 (6) of the Act because the decree passed against the petitioner was not ex parte. A Family Court can proceed ex parte if a defendant fails to appear on the date fixed by the Family Court for his appearance after his service, as per section 9 (5) of the Act. In the present case the petitioner after being served filed the written statement and no occasion arose for the Family Court to pass ex parte order against the petitioner in terms of subsection (5) of section 9 of the Act. A Family Court has been empowered to give a decree after announcing its judgment, as per subsection (2) of section 12 of the Act. But there is no provision for passing of ex parte decree except after proceeding ex parte under clause (a) of subsection (5) of section 9 of the Act.
14. Consequently when the petitioner filed Family Appeal No,2/90 on 1-3-1990 it was directed against the judgment dated 30-4-1989 and the decree dated 4-5-1989 and not against the order dated 25-1-1990 dismissing the application moved under section 9 (6) of the Act. Rule 22 (1) of the Rules provides a period of 30 days for filing appeal under section 14 of the Act against passing of a decree. Proviso to sub-rule (1) of Rule 22 empowers Appellate Court to extend the period of 30 days.
15. In the present case, the petitioner never moved any application for extension of the period of limitation in terms of the proviso to sub-rule (1) of Rule 22 of the Rules. In the circumstances District Judge, Sukkur was justified in dismissing Appeal No,2/90 on 4-3-1990.
16. ' The argument that maintenance allowance cannot be claimed by children of a male person, is replied by section 370 of the Principles of Mahomedan Law by Mulla according to which a father is bound to maintain his sons until they have attained the age of puberty and he is bound to maintain his daughters until they are married. Under said section a father is not bound to maintain his adult sons unless they are disabled by infirmity or disease. It has been mentioned under said section that the fact that the children are in the custody of their mother during their infancy, does not relieve the father from the obligation of maintaining them. However, if father is poor, and incapable of earning by his own labour, the mother is bound to maintain her children if she is in easy circumstances, as per section 370 of Mulla's Mahomedan Law. In the case of Muhammad Afsar (PLD 1961 (W.P.) Lahore 199) the view taken was that a father is bound to maintain his children so long as they are unable to maintain themselves and that the age of the child is not very material because if a child having attained the age of majority is unable to earn its living due to lack of physical and mental development, the father is liable to maintain him. This observation shatters the contention that the maintenance cannot be claimed for a major son. All this shows that a minor male son, an unmarried daughter, and a major male son unable to earn his living due to lack of physical or mental development, have as much right to claim maintenance from their father, as the right possessed by a wife to claim maintenace from her husband.
17. ' The point raised by learned counsel for the petitioner that after remand of the case the petitioner should have been sent process in terms of section 8 of the Act, is without any substance. The defendant/petitioner was to be served strictly in terms of section 8 of the Act on filing of the Family Suit against him. Even if he was not served in terms of section 8 of the Act, he appeared through his counsel and filed written statement. The petitioner had no right to be served in terms of section 8 of the Act after remand of the case, when he had full knowledge about pendency of the Family Suit against him. Moreover, it was not that stage of the suit which comes after a plaint is presented to a Family Court under subsection (1) of section 8 of the Act. In the case of Mst. Ismat Khanum Toor (1978 SCMR 335) it was held that where the defendant can be said to have been aware that the plaintiff had instituted against him a suit and he had deliberately avoided to be served, nonobservance of full requirement of section 8 of the Act was of not much consequence. In the instant case, the formality of issuing summons to the petitioner to appear on a specified date as provided by clause (b) of subsection (1) of section 8 of the Act read with subsection (6) of section 8 of the Act, was already over and in response to being served with summons the petitioner filed his written statement. Petitioner was not entitled to be issued summons in accordance with subsection
(6) of section 8 of the Act, after receipt of the Family Suit by remand. The only duty of the Family Court at that stage was to inform the petitioner that the Family Suit pending against him was fixed for hearing on a a particular date, and towards that end the Family Court could follow any procedure recognized by law for service of the petitioner. For said reasons the non-observance of the requirement of section 8 of the Act, was not of any consequence.
18. ' Next question relates to deletion of section 488, Cr.P.C. By the Law Reforms Ordinance. W.P. Family Courts Act 1964, including its section 20 providing for investment of any Judge of a Family Court with powers of Magistrate to make order for maintenance under section 488 of Cr.P.C. Came in force on 2-11-1965. It is worthy to note that with the deletion of Section 488 of Cr.P.C. No corresponding amendment was made in section 20 of the Act. This shows that the legislature while doing away with powers of the ordinary First Class Magistrates to order maintenance under section 488 of Cr.P.C. Desired such powers, being exercised by the Judges of Family Courts (who were invested with powers of Magistrate Ist Class to make orders for maintenance under section 488 of Cr.P.C. Under a notification No, Integ. 1031-1964 dated 5-4-1966 issued by the then Provincial Government of West Pakistan) to remain intact. Hence irrespective of deletion of section 488 of Cr.P.C. a Judge Family Court can make order for maintenance under Section 20 of the Act in like manner a Magistrate Ist Class could make order under section 488 of Criminal Procedure Code. In the case of Noor Zaman (PLD 1967 Peshawar 343) the view taken was that the Family Courts having been notified as Magistrates for the purpose of section 488, Cr.P.C. Were conferred exclusive jurisdiction to hear, try and adjudicate on the matters listed in the schedule below the Act. One of the seven matters listed in the schedule is `maintenance' which term includes orders for maintenance under section 488 of Cr.P.C., after the Magisterial First Class powers are conferred on the Family Courts for the said purposes. In the same case it was observed that where Special Tribunal is created, then by necessary implication the jurisdiction of the ordinary Courts is excluded even in the absence of the express words to that effect. Section 5 of the Act gives exclusive jurisdiction to the Family Courts to entertain, hear and adjudicate upon the matters specified in the 'schedule', which include maintenance matteRs, Hence even if section 488, Cr.P.C. Had not been deleted, section 5 of the Act took away jurisdiction of the First Class Magistrates (other than Judges Family Courts) to make orders for maintenance under section 488, Cr.P.C. However jurisdiction of the Judges Family Courts to make orders for maintenance under section 488, Cr.P.C. Given to them on 5-4-1966, remained intact even efter deletion of section 488 of Cr.P.C. It may be relevant to mention here the case of Adnan Afzal (PLD 1969 SC 187) cited on behalf of the respondent No,1 where it was held that the provisions of the Act are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal. It was also held that combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without in any way diminishing or curtailing the rights already possessed by a litigant with regard to the matters in 'schedule' below the Act.
19. ' Admittedly petitioner's suit for restitution of conjugal rights against the respondent No,1, (Family Suit No,27 of 1986) was decreed by the Judge Family Court, Kandhkot on 16-11-1987. The question arises as to whether in presence of such a decree, the respondent No,1 is entitled to live apart and be maintained. In Chapter XII of Islamic Law by Aziz Ahmed it is mentioned under para. 344 on the authority of Hedaya as follows: "If a woman is refractory and leaves her husband's house without his consent, she is not entitled to maintenance until she returns and makes her submission. But if a woman refuses to surrender herself to her husband, on account of her prompt dower not having paid to her or for any other valid reasons, her maintenance does not drop, but is incumbent upon the husband, although she be not yet within his custody, since her refusal is in pursuance of her right and consequently the objection to the matrimonal custody originates with husband."
20. ' In the- case of Muhammad Usman (1972 SCMR 131) cited on behalf of the respondent No,1, the decree for maintenance passed by a Court at Karachi against the husband who had obtained decree for restitution of conjugal rights at Lahore against the wife, was set aside by the appellate Court on the ground that existence of the decree for maintenance would encourage the wife to disobey order of the Guardian Judge at Lahore ordering custody of the children to be given to the husband. The decree for maintenance in favour of the wife was restored to her by the High Court exercising Constitutional jurisdiction and such order by the High Court was maintained by the Supreme Court of Pakistan. In the case of Khurshid Ahmed (1990 CLC 297) cited on behalf of the petitioner, the view taken by a learned Single Judge of Peshawar High Court was, that a wife is entitled to receive maintenance allowance from her husband if she had not refused to live with her husband without "sufficient reasons". The question as to what are "sufficient reasons" is a matter for evidence. Obviously in a Constitution Petition there cannot be factual examination of a disputed question of fact. It was observed in the cases of State Life Insurance Corporation of Pakistan v. M/s. Pakistan Tobaccco Company Limited PLD 1983 SC 280 and Fawwad & Fareen Enterprises Ltd. v.
21. Director of Industries, Government of Sindh, Karachi and others, PLD 1983 SC 268 that controversial questions of fact cannot be adjudicated in a writ petition. More over mere obtaining of the decree for restitution of conjugal rights against the respondent No,1 by itself does not make out that she is refractory and she has no sufficient reasons to live apart. Obtaining of such a decree has nothing to do with non-providing of maintenance for the children. Existence of such a decree cannot be pleaded as a defence against claim of the children for maintenance. For these reasons it is held that the decree for maintenance allowance obtained by the respondent No,1 for herself and for her children would not be affected by the decree for restitution of conjugal rights obtained by the petitioner from a Court at Kandhkot.
22. ' Remaining cases cited on behalf of the petitioner do not further his case. In the case of Khurshid Ahmed (1990 CLC 297) it was further held that where orders of the two Courts below do not suffer from any jurisdictional defect, interference in exercise of extraordinary powers of judicial review under Article 199 of the Constitution is not called for. In the case of Saleem Ahmed (PLD 1977 Karachi 469) the view taken was that pleadings filed before the Family Judge without specifying whether the same were under section 7 of the Act or under section 488 of Cr.P.C., cannot be held to be proceedings both under section 20 of the Act as well as under section 488 of Cr.P.C. In the case of Jamal Shah (1991 MLD 1243) the view taken was that doctrine of `audi alteram partem' was presumed to be embodied in every statute unless its application was specifically excluded. In the case of Mst. Shamim Akhtar (1991 CLC 1142), the husband in his written statement in a suit for maintenance by wife, did not state that despite demand made by him, the wife had refused to perform her marital obligations or to live with him and the view taken was that the Court below was in error in setting aside the decree for maintenance. In the case of Mst. Bibi Musarrat (1990 CLC 1908) the view taken was that in Islam a husband is bound to maintain his wife throughout the period she remains in matrimonial bonds with him except when the wife abandons the conjugal domicile of husband without any valid reason or when she disobeys her husband without a good cause. In the case of M/s. Landhi Industrial Trading Estates Ltd., Karachi, (1970 SCMR 251), a Civil fsuit was decreed ex parte due to non-appearance of the defendant and at the time of passing of such decree, the counsel for the defendant appeared and prayed to be heard but his prayer was refused. Subsequently said decree was set aside under Order 9, Rule 13 of C.P.C. And it was held that such order was not illegal and ex parte decree could be set aside without setting aside ex parte proceedings.
23. ' In the instant case the impugned order dated 4-3-1990 by the District Judge does not suffer from jurisdictional defect. So also the judgment and the decree by the trial Court decreeing suit of the respondent No,1 on 30-4-1989. Hence no interference under Article 199 is called for, as per the view taken in the case of Khurshid Ahmed. It was not argued on behalf of the petitioner if the respondent No,1 moved the Family Court under section 7 of the Act as well as under section 488, Cr.P.C. And hence case of Saleem Ahmed has no application to this case. The petitioner was given chance to contest the suit for maintenance where he filed his written statement and hence it cannot be said that the doctrine of "audi alteram partem" has been violated in this case. Case of Mst. Shamim Akhtar supports case of the respondent No,1. Case of Mst. Bibi Musarrat is distinguishable because in the present case there is no evidence from the side of the petitioner to show that the respondent No,1 abandoned the conjugal domicile of the petitioner "without any valid reason" or that she disobeyed her husband" without a good cause". In the case of Landhi Industrial Trading Estates Ltd.
24. There was ex parte decree. In the present case there was no ex parte decree to be set aside.
25. ' The various points raised by the learned counsel for the petitioner have been dealt with and none of them has made out a case for interference with the impugned order under Article 199 of the Constitution of Pakistan. The appeal filed by the petitioner was clearly time-barred and the District Judge was justified in dismissing it. Evidence adduced by the respondent No,1 has been appraised by the Family Court. It was not rebutted, due to absence of any evidence from the side of the petitioner. Hence it cannot be held that the respondent No,1 was not entitled to live apart and be maintained by the petitioner. The petitioner had no remedy under section 9 (6) of the Act, because the decree passed against him cannot be termed to be 'ex parte' as he had contested the suit by filing written statement. The Family Court cannot grant maintenance allowance to major sons and married daughters of the petitioner but there is nothing on record to show as to which of the children come in that category and it was duty of the petitioner to bring evidence on this point.
26. Since the petitioner has led no evidence, he is to suffer adverse findixg on this point. There is no force in the centention that service of the petitioner after remand of the suit was not proper. The trial Court was not bound to follow section 8 of the Act or to hold an enquiry if the default was intentional.
27. ' For the aforegoing reasons this Constitution petition stands dismissed with no order as to costs.