1. ' The revision petition has been directed against the order of Judge Family Court, Mirpur passed on 13-12-1997.
2. ' The facts of the case are that the petitioner filed a suit for maintenance in the Court of Judge Family Court, Mirpur on 7-5-1997 and contended that she was married with non-petitioner on 17-3- 1995, but after one month the non-petitioner ousted her from his house and she is living with her parents till now. The non-petitioner did not pay any maintenance to her. Thus, she is entitled for the maintenance of Rs,1,000 per month from 17-4-1995 to 30-4-1997. She also prayed that a decree of money for Rs,24,466 may be passed in her favour and the non-petitioner may be ordered to pay Rs,1,000 as maintenance allowance per month.
3. ' The non-petitioner presented his written statement on 12-8-1997 and submitted that after three days of the marriage the petitioner left his house and never lived with him. The non-petitioner further maintained that the petitioner is still virgin and if she lives with him, he is ready to pay her maintenance allowance. The non-petitioner submitted for the dismissal of the petitioner's suit.
4. ' In the light of the pleadings of the parties the following issues were framed:---
(i) Whether the Court has got jurisdiction? (O.P.P.).
(ii) Whether the plaintiff lived with defendant for one month and was forcibly ousted by the defendant from his house and the plaintiff is living with her parents from 17-4-1995 till now? (O.P.P.).
(iii) Whether the decree of money for Rs,24,466 can be passed in favour of plaintiff according to the condition laid down in Nikahnama and whether the defendant is responsible to pay Rs,1,000 per month as maintenance allowance? (O.P.P.).
(iv) Relief.
5. ' The trial Court after hearing the arguments of the parties held that the Court has no jurisdiction to hear the case, thus, dismissed the suit of the plaintiff-petitioner, which is the subject-matter of the revision petition before us.
6. ' Mr. Masood Khalid, the learned counsel for the petitioner contended that the Family Court is empowered to hear the maintenance cases under section 20 of the Family Courts Act, 1993 and under clause (3) of the Schedule annexed with the said Act. He argued that the petitioner has not only claimed the past maintenance allowance but she has also submitted for the future maintenance allowance. He further maintained that the Shariat Court has vast powers to examine the record of any subordinate Court to see the correctness of the order. Thus, the revision petition is maintainable before this Court. He also submitted that the delay in filing the revision petition can also be condoned because the petitioner is a Pardahnasheen lady which was misled by wrong advice. He further argued that the order of the trial Court is void, therefore, revision petition is also maintainable. In support of his contention he cited the following case-law:--- (i)1985 SCM R 983.
7. (ii)An unreported judgment of Azad Jammu and Kashmir Shariat Court titled as Mst. Tazeem Bibi v.
8. Muhammad Azam, dated 14-12-1998.
9. ' In reply, Mr. Muhammad Ayub Sabir, learned Advocate for the non-petitioner argued that no revision petition can be instituted against the order of the Family Court rather an appeal can be presented under section 14 of the said Act, within the period of one month. He also submitted that after lapse of 59 days the revision petition has been presented and in the ground of appeal/revision submission for condonation of delay has also not been made. He further maintained that under section 488 of Cr.P.C. The maintenance allowance can be granted from the date of institution of application or from the date of the decision of the Court. The past maintenance allowance and the matter of the conditions of Nikahnama are in the purview of the Civil Court and cannot be claimed in the Family Court.
10. In the light of the arguments addressed at the Bar, I have carefully examined the record of the case and the authorities cited by the learned counsel for the petitioner and reached to the conclusion that the revision petition does not lie against the impugned order. The Trial Court dismissed the suit of the petitioner on 13-12-1997. Therefore, the petitioner was obliged to lodge an appeal before this Court within the period of 30 days, but that was not done and an appeal/revision was presented in this Court on 11-2-1998, after lapse of 59 days. When this fact came to the notice of the appellant that the appeal has been instituted after the prescribed period of limitation. It was submitted by the learned counsel for the appellant that he has presented an appeal and not a revision petition.
11. Azad Jammu and Kashmir Family Courts Act, 1993 (hereinafter shall be called the Act) is a special enactment and a special procedure has been provided therein. According to section 20 of the Act, a Family Court can be invested with the powers of a Magistrate First Class to hear the case under section 488, of Cr.P.C. Therefore, the Family Court while dealing with the case of maintenance, acts as Magistrate First Class and enjoys powers of the Criminal Court, rather than a Civil Court. Section 20 of the Act, read with item 3 of the Schedule makes it clear that the cases under section 488 of Cr.P.C. Are heard and decided in exercise of the criminal powers by the Family Court. In this respect, a case reported as Mst. Zareena Begum v. Nisar Hussan and another (1996 SCR p.82) can be referred. Section 14 of the Act deals with the provision of the appeal and no revision has been provided under the Act. As it has been discussed above that the Act is a special enactment, therefore, the Court has to follow the enactment.
12. I do not agree with the contention of the learned counsel for the petitioner that under section 435 of Cr.P.C. The impugned order may be set aside. It is admitted that section 435 of Cr.P.C., empowers the Court to examine the record of an inferior Court for the, purpose of satisfying itself as to the illegality and irregularity of any proceedings or order made therein. It gives no power to set-right the error of any illegality. According to the facts of the case, the petitioner presented a suit for money which is not subject-matter of Family Court rather the petitioner should have instituted a civil suit for Rs,24,466. In this state of affairs, the Trial Court has very rightly held that the Court has no jurisdiction in this matter. Hence, this Court cannot set-right the illegality committed by the petitioner. The learned counsel for the petitioner has also argued that under the inherent powers, the Court should entertain the revision petition. In this respect, an unreported judgment of the Shariat Court Azad Jammu and Kashmir titled as Tazeem Bibi v. Muhammad Azam has been referred. The facts of this case re quite different from the instant case and it has not been held in the said authority that revision petition against the order of Family Court can be presented before Shariat Court. In this case an opportunity was granted to the petitioner to lead her evidence.
13. Therefore, inherent powers of the Court cannot be invoked to set right the patent defect and a revision petition cannot be allowed. The Court has to follow the law and procedure provided by the Legislature at any cost.
14. ' The learned counsel for the petitioner has submitted that revision petition has been presented instead of an appeal but it has never been mentioned in the grounds of the petition that delay has occurred. The petitioner neither mentioned any cause of delay nor submitted for its condonation.
15. Mere sleeping over the matter does not make her entitle for the condonation of delay. If the petitioner would have presented an appeal the question of condonation of delay could have been dealt in detail. Suffice to say, that the apex Court of Azad Jammu and Kashmir has clearly laid down in so many cases that delay of each day must be explained. In this respect, 1992 SCR p.98 and 338 can be referred. Thus, I do not feel it proper to discuss the authority cited as 1985 SCM R 983.
16. ' In the light of what has been stated above, finding no force in this revision it is hereby dismissed.