' This appeal against the judgment and decree of Judge Family Court RawalakotePoonch, dated 30-7-1998 has arisen out of the following facts.
2. A suit for past maintenance alongwith a request to order the maintenance allowance for Iddat period was instituted by the present appellant in the Court of Judge Family Court at Rawlakote on 1-9-1996. The defendant/respondent after appearance in the Court raised an objection that the trial Court was not seized with the jurisdiction to entertain the suit for past maintenance as the Family Courts Act did not allow the Court to proceed with such-like suits. The trial Court upheld the objection raised by the defendant respondent and consequently dismissed the suit filed by the present appellant for want of jurisdiction. It was observed by the trial Court that such-like suits were entertainable by the Civil Court. The present appellant feeling aggrieved by the order of the trial Court, dated 30-7-1998 has preferred the present appeal to reverse the aforesaid order.
3. The learned counsel for the appellant while assailing the impugned judgment and decree argued that the Family Court was vested with the jurisdiction to entertain the suit for past maintenance and, by dismissing the suit of his client, the trial Court fell in error. According to the learned counsel, the preamble of the Family Courts Act when read with sections 5 and 20 alongwith the Schedule given in the aforesaid Act clearly indicated that the suit for past maintenance was rightly brought before the Family Court and no other Court was vested with such-like jurisdiction. The learned counsel during his arguments referred a case titled Muhammad Saleem v. Additional District Judge Rahimyar Khan (1988 CLC 1134) and maintained that it was well within the jurisdiction of Family Court to adjudicate upon the suit brought by the present appellant.
4. On the contrary the learned counsel for the respondent maintained that the suit filed by the present appellant was rightly dismissed by the trial Court as it was not within the competence of the said Court to proceed with the case. The learned counsel relied upon a case titled Muhammad Nawaz v. Mst. Khurshid Begum and others (PLD 1972 SC 302) and argued that the case-law cited by the learned counsel for the appellant was not relevant as in Pakistan section 9 was there in the Family Courts Act and under the aforesaid provision of law the Family Courts in Pakistan were competent to award past maintenance through arbitration but here in Azad Kashmir there was nothing like section 9 in the aforesaid Act, therefore, the Family Courts established in Azad Jammu and Kashmir were not seized with the jurisdiction to entertain such-like cases.
5. Though there is no paramateria in "the Azad Jammu and Kashmir Family Courts Act, 1993" to section 9 of the relevant law in Pakistan but even in absence of such-like provision the close examination of relevant law on the subject shows that the Family Courts in Azad Jammu and Kashmir are competent to adjudicate upon the cases pertaining to past maintenance. Section 5 of the Azad Jammu and Kashmir Family Courts Act, 1993 gives exclusive jurisdiction to entertain, hear and adjudicate upon the matter of maintenance and word "maintenance" includes past, present and future maintenance.
6. It is well-settled principle of law that where a special tribunal is created, then by necessary implication the jurisdiction of the ordinary Courts is excluded even in the absence of the express words ousting the jurisdiction of the ordinary Courts. The words "exclusive jurisdiction" to entertain hear and adjudicate upon matters occurring in section 5 of the Act expressly oust the jurisdiction of the ordinary Courts in regard to the matters enumerated in the Schedule including the maintenance and if any doubt is left about exclusive jurisdiction in regard to order of maintenance under section 488, Cr.P.C., the same is resolved by section 20 of Family Courts Act. Therefore, it is held that after the enactment of the Family Courts Act, 1993, the matter given in the Schedule of the aforesaid Act were only triable by the Family Courts established in Azad Kashmir and the Civil Courts were not competent to hear the aforesaid matters, thus, it was wrongly observed by the trial Court that the matter regarding past maintenance was entertainable by the Civil Court.
7. The preamble of the 'Family Court Act, 1993' when read with sections 5 and 20 of the Act abundantly makes it clear that the question of past maintenance is definitely a matter connected with family affairs. Furthermore, the Family Courts in Azad Kashmir are vested with exclusive jurisdiction to entertain hear and adjudicate upon all those matters listed in the Schedule of the aforesaid Act.
8. Another question which generally agitates the mind of the legal fraternity is about the use and import of section 488, Cr.P.C., after the enforcement of the 'Family Courts Act, 1993'. Through the aforesaid Act the Family Courts are made competent to award maintenance whether past, present or future. The basic purpose and intent to this particular legislation is to decide the family matters including maintenance expeditiously. The power to execute their orders are also there.
Therefore, there appears hardly any need to keep this provision of law on the statute book.
However, as long as it is on the statute book there was a genuine apprehension of clash of jurisdiction between the Family Courts and the Magistrate Ist Class having jurisdiction under section 488, Cr.P.C. Therefore, a provision in shape of section 20 is made available to keep all the family matters at the one forum and furthermore to avoid any clash of jurisdiction. The Government has done so through a separate Notification under section 20 of the aforesaid Act and from then onwards the jurisdiction of the Magistrate 1st Class ordinarily having powersThe Family Courts when adjudicating upon a claim for maintenance are competent to award maintenance allowance keeping in view the genuine requirements of the individual. However, when an application is made under section 488, Cr.P.C., then certainly the Family Court cannot go beyond the amount specified by the legislation and that too from the date of application or from date of order.
Therefore, in the light of what has been observed as above it is well within the competence of the Family Courts to adjudicate upon, hear and entertain the suits regarding past maintenance and the Civil Courts in Azad Jammu and Kashmir are not competent to entertain the suits pertaining to the matters listed in the Schedule to "The Family Courts Act, 1993". Thus, the appeal stands accepted and the impugned judgment and decree is set aside. The suit is remanded to the trial Court to decide the same on merits.