' NAIMUDDIN, J.-By this Constitution Petition under Article 199 of the Constitution, the petitioner has impugned the order dated 20-5-1974, passed by Order XVII, Civil Judge and Family Court, Karachi on an Execution application sentencing the petitioner to simple imprisonment for one month, and the order, dated 14-5-1975, passed on appeal by the 11 Additional District Judge, Karachi in Family Appeal No, 49 of 1973, dismissing the appeal.
2. Briefly stated the facts giving rise to this petition are : respondent 1 was married to the petitioner in Karachi on or about 27th December 1964. On petitioner's failure to maintain her and her child she filed an application under section 488, Cr. P. C. In the Court of Order XVII, Civil Judge and Family Court, Karachi, respondent 2, for maintenance, which was registered as Family Suit No, 512 of 1970.
The petitioner also filed a Suit No, 150 of 1970 in the same Court agsinst respondent 1 for restitution of conjugal rights. However, during the pendency of the two suits the petitioner and respondent 1 compromised the dispute and filed a compromise application in Suit No, 512 of 1970, containing the following terms of compromise :- "(1) That mother would allow father to see his child two times in a month by paying a visit at her house.
(2) That the defendant agrees to pay maintenance at Rs, 60 and Rs, 30 for the mother and the child, respectively.
(3) That the plaintiff and her parents will not form late or hindrance in showing the child to the defendant.
3. Accordingly, respondent 2 decreed the suit in terms of the compromise.
4. The petitioner paid maintenance to respondent 1 for some time in terms of the decree and then stopped paying the same. Therefore, respondent 1 filed an application under section 488 (3), Cr. P.
C. Which was registered as Execution Application No, 11 of 197,:. The petitioner's objection to the application was that she was not honoring the compromise by allowing him to see his daughter.
Respondent 2 after framing issues on the objections raised by the petitioner and recording evidence on behalf of the parties overruled the same, by holding that the petitioner has failed to pay maintenance as ordered without any sufficient cause and consequently, sentenced him to simple imprisonment for one month.
5. Aggrieved by the aforesaid order the petitioner preferred an appeal, being Family Appeal No, 49 of 1974, to II Additional District Judge, Karachi respondent 3, which came to be dismissed by the order dated 14-4-1975.
6. Therefore, tee petitioner has filed the present petition under Article 199 of the Constitution impugning the aforesaid orders.
7. We have heard Mr. Iftikhar Ali, Advocate for petitioner and Mr. Mahmood Hassan, Advocate for respondent 1. Mr. Iftikhar Ali's only contention is that the application under section 488(3), Cr. P. C.
Filed by iespondent 1 was not maintainable in the absence of an order under section 488(1), Cr. P. C.
And therefore the order of respondent 2 sentencing the petitioner to one moth's imprisonment is without lawful authority. His submission is that although the petitioner initially had filed an application under section 488, Cr. P. C. But it was registered as a suit and to e procedure prescribed in the West Pakistan Family Courts Act, 1964 (hereinafter called 'the Act') and the West Pakistan Family Court Rules, 1965 (hereinafter called 'the Rules') for suits was followed and on compromise of the dispute a decree in terms of the compromise was passed which could be executed under section 13 of the Act.
8. The learned counsel for respondent 1 on the other hand submitted that the learned Family Court was also invested with the powers of a Magistrate First Class under section 20 of the Act and since respondent 1 had filed the application under section 488 of the Criminal Procedure Code the decree passed by respondent 2 should be deemed to have been passed under section 488, Cr. P.
C. The learned counsel in support of the contention referred to Safdcr Ali v. Mst. Saira Khatoon (1).
9. However, it cannot be disputed that the scope of a suit under section 7 of the Act and an application under section 488, Cr. P. C. Are A quite distinct and different in nature. While in a suit under section 7 of th Act, a decree for past maintenance can be granted and there are no limitations as to the amount that may be granted as maintenance no past maintenance except from the date of application can be granted in exercise of powers under section 488, Cr. P. C. And there are also limitations as to the quantum of maintenance that can be granted thereunder.
Further, the proceedings to enforce a right for maintenance under section 5 read with section 7 of the Act and under section 488, Cr. P. C. Are quite different and distinct in nature as the former are civil and the latter are criminal or quasi-criminal and different procedures are provided for the conduct of she two proceedings. While a suit under the Family Act has to proceed in accordance with the procedure provided in sections 7, 8, 9, 10, 11 and 13 of the Act read with the Rules, an application under section 488, Cr. P. C. Has to be decided in accordance with the procedure provided in that section and the Code of Criminal Pieces use. Moreover, consequences of failure to satisfy a decree passed under section 12(2) of the Act and non-compliance of an order passed under section 488, Cr. P. C. Are also quite different and distinct. If the decree passed under the Act is not satisfied, the decrial amount can be
(1) PLD 1964 Quetta 150 ' recovered, besides other modes of execution, as arrears of land revenue under section 13 of the Act, while non-compliance of the order of the Magistrate may result in imprisonment of a defaulter for a term which may extend to one month. There is yet another difference. In respect of an order passed under section 488, Cr. P. C. Cause can be shown for its noncompliance whereas no cause can be shown in execution of a decree passed under the Act for its non-compliance.
10. Therefore, even if a Court is invested with powers on the subject-matter of the proceedings under two different enactments, yet, it has got to be seen under which of the two enactments it has exercised jurisdiction if the nature and scope of the proceedings and the consequences of noncompliance of an order passed by it are different.
11. Therefore, it is necessary to determine whether the decree passed by respondent 2 was in exercise c f civil jurisdiction under the Act or was in the nature of an order in exercise of criminal or quasi-criminal jurisdiction under section 488, Cr. P. C.
12. There is no doubt that the proceedings were initiated by an application under section 488, Cr. P.
C. Read with section 20 of the Act as admitted by the learned counsel for the petitioner, but therein respondent 1 prayed for a decree for maintenance and it was registered as a suit and the procedure provided for trial of suits under the Act and the Rules framed thereunder was followed, as admitted by the learned counsel for respondent 1, and the suit was decreed in terms of the compromise and a decree was accordingly prepared. It is not denied by the learned counsel for respondent 1 that the procedure prescribed under section 488 of the Code of Criminal Procedure and the other provisions of the said Code was not followed. It is also apparent that the Family Judge while recording the compromise and passing the decree in terms thereof signed the order as Civil Judge and Family Court and not as a Magistrate, First Class. It is, therefore, abundantly clear that the proceedings although initiated on an application under section 488, Cr. P. C. Were throughout treated as under the Act and a decree in accordance it the provisions of section 12 of the Act was passed in exercise of Civil Jurisdiction. Therefore, in our opinion, such a decree could be executed only in the manner provided under section 13 of the Act and not under section 488, Cr.
P. C. Safdar All's case cited by the learned counsel has no bearing on the facts of the case as in that case it was held that the proceedings under section 488, Cr. P. C. Are neither an enquiry nor a trial and consequently section 350, Cr. P. C. Was not applicable to those proceedings. It was further held that the proceedings although under the Criminal Procedure Code are in the nature of quasi- civil proceedings and the father is not an accused person and he need not be examined as such. It would be seen that the questions in answer to which the above observations have been made are not involved in the present case.
13. As regards the order passed on appeal by respondent 1 the learned Advocate contended that the petitioner could not challenge that order as he himself had invoked the jurisdiction of the appellate Court by filing the appeal. In support of the contention the learned Advocate referred to Nazar Hussain v. Faqir Muhammad (1).
The contention is incorrect for an order which is without jurisdiction ordinarily has got to be challenged in appeal, if appeal is provided, al
(1) 1974 SCM R 188 ' constitutional requirement before seeking remedy in constitutional jurisdiction. Therefore, if such an order is not set aside on appeal it can still be challenged by way of a constitution petition.
14. The case cited by the learned counsel for respondent 1 is distinguishable. In that case against the order of framing additional issue the petitioner had filed a revision application with the District Judge in view of the amended provisions of section 115(2) of the Code of Civil Procedure which authorizes the District Court to exercise provisional powers in respect of cases in which the amount or value of the subject-matter does not exceed the limits of the appellate jurisdiction of that Court, but the same was dismissed on the merit. However, the petitioner in that case filed a second revision, in the High Court which was dismissed in limine on the ground that the second revision, was not competent. However, before the Supreme Court it was pointed out by the petitioner that the value of the subject-matter of the suit was Rs, 52,000 and therefore the District Court had no jurisdiction to entertain the revision but the Supreme Court refused to grant leave to appeal on the ground that the petitioner himself had invoked the jurisdiction of the District Court showing the valuation of the suit for the purposes of jurisdiction at Rs, If 0. In the present case no such question is involved.
16. We, therefore, declare that the order dated 20-5-74 passed by Order XVII, Civil Judge and Family Court under section 488(3), Cr. P. C. Has been passed without lawful authority and in consequence declare the same and the order dated 14-.t-75 passed by II Additional District Judge, Karachi in Appeal No, 49 of 1974, of no legal effect.
16. In the result we allow the petition with costs.