Judgment dated 3-10-1972 passed by a learned Additional Distt Judge, In appeal under section 14 of the West Pakistan Family Courts Act whereby decree for maintenance passed by a learned Family Judge on 24-8-1970 in favour of the petitioner and her son was set aside, Is under challenge in this writ petition. Briefly stated the relevant facts leading up to this petition are that according to the petition Muhammad Shafi, deceased predecessor in interest of the respondents (who are another widow and children from her wedlock with the deceased) married her (the petitioner) in 1939. She gave birth to a son from this wedlock. Muhammad Shall maintained the petitioner and hot son till 1960. Thereafter he neglected them and she approached the then Martial Law Authorities for some fold". But without any success. An application under section 488, Co. P. C. Was also moved but the came in dismissed on account of certain doubt about bar marriage itself. She then filed a suit for a declaration against Muhammad Shah that she was his legally wedded rife.
The suit seas decreed in 1963. He may be noted here that an appeal filed against this doom was dismissed b' another Additional District Judge on 6-6-1966. Second appeal filed against this decree was dismissed as having abated in 1971 as by then Muhammad Shafi had died and the appeal was not persued any further. After getting the support of a declaration from civil Court qua her marriage, the petitioner filed a maintenance application before a Family Court under section 20 of the West Pakistan Family Courts Act read with section 488. Cc. P. C. Learned counsel for the petitioner after having inspected the ale made a statement at the bar with regard to the proceedings on the application. This statement was not controverted by the Warned counsel for the respondents According to the former. The application was registered In the Dawa register of Family Court on 12th January. 1966. Later on in February, 1960 the written statement was filed by Muhammad Shall. The order-sheet shows that be was treated u a defendant while the petitioner was treated as plaintiff. They were both summoned for 4-4-1966 presumably for pre-trial conciliation proceedings under section 10 of the Family Courts Act. On that day the rued Presiding Judge was on leave. The case wall adjourned to 4-5-1966 when pretrial consiliation proceedings were ordered to tote place on 18-5-1966 Notice In this behalf was ordered to be issued. On the adjourned date i. e. 18-5-1966 the order shows that conciliation proceedings were duly held and it was noted that the efforts failed. Thereafter there were many adjournments and then after the recording of the evidence again coition proceedings were held under section 12 of the Family Court Act but the same failed, Ultimately the learned Judge decreed the suit as Family Court on 24-6- 1970 directing payments of Rs 400 per mensem and Rs. 200 per mensem its the petitioner and her child respectively "from the date of the institution of the suit i.e. 12-1-1966.
2. The Warned fist Appellate Court by the impugned judgment set aside the decree for maintenance on the main ground that the learned Family Judge had no jurisdiction to entertain the application on 12.1-1966 become by then the material powers under section 488 of the Cr. P. C had not been conferred on it. And because the application was filed under section 448, Cr. P. C., therefore the entire proceedings were without jurisdiction. He also held that notwithstanding the decree of the civil Court declaring that the petitioner was lawfully wedded wife of Muhammad Shah, she and her son were not entitled to maintenance became as the learned Judge put it. By the repudiation of the marriage by her husband, she appeared to have lost her right of maintenance. Despite having held that the learned Family Judge had no jurisdiction, the learned Appellate Court made observations with regard to the merits of the case including the question as to whether Muhammad Shah had been afforded enough opportunity of defending the application for maintenance as also on the quantum of maintenance. In the operative part of the judgment he, howeverobserved as follows.
"I might have remanded the case to settle the above points but now these have lost their importance because I have already bold that the petition for maintenance allowance before the learned trial Court was not competent as the said Court was not invested with Magisterial powers under section 488, Cr. P. C. On the dads when it was instituted. It was an inherent defect In the petition which cannot be cured under the law. I have also bald that the respondent was not entitled to maintenance on account of the plea of repudiation. Under such circumstances the appeal must succeed. It is accordingly accepted and the judgment and decree of the learned trial Court is set aside being without jurisdiction and the suit is dismissed."
3. Learned counsel for the petitioner has pointed out that even though in the judgment of the Warned Family Judge the description of the Court was mistakenly given as 'administrative Civil Judge'. The decree clearly shows that the suit war decided by the learned trial Court as ---Judge of Family Court." It has also been noticed that the entire proceedings were conducted by the learned Judge, as 'Family Court.' therefore, the mere misdescription of the Court in the formal heading and ending parts of judgment is inconsequential. I agree with the learned counsel that the misdescription of the Court is on account of an inadvertent mistake committed by the staff of the Family Judge. Looked at in this light. Reliance of the learned counsel in Pico Gut v. The State (PLD1960SC307) is fully justified. I accordingly hold that the trial of the suit for maintenance was held by the learned trial Court as Judge--- Family Court and not as an ordinary evil court.
4. It is tune that the learned Family Judge was not conferred Magisterial potters under section 488, Cr. P. C. Till 5th of April 1966. It is also true that in the application for maintenance as initially filed, section 20 of the Family Courts Act read with section 488, CR. P. C. Was mentioned as the provision of law trader which the application was filed, but his not the case of the learned counsel for the respondent than the Family Court had no other capacity/ jurisdiction to try the application except under section 488, Cr. P. C What he contended before me was the even though the learned Family Judge had an independent jurisdiction under section 5,of the Family Courts Act read with item 3 of Schedule thereto, to grant maintenance to the petitioner and her son under general law 114 was the choice of the petitioner in the application filed by her which determined the forum of trial. He argued that it she had under section 5 read with item 3 of the Schedule chosen to welt relief the matter might have been different. In this behalf he also relied on Settlement and Rehabilitation Commissioner Hyderabad Division, Karachi and another v. Mannu Khan and 3 others (1973SCMR62) to contend that if at the tine of entertaining the application the learned trial Court had jurisdiction.
Then subsequent enforcement thereon of magisterial powers would not mate its decision with jurisdiction.
5. The proceedings before the learned trial Court have not been properly comprehended by the learned First Appellate Court. As noted and discussed above, the learned trial Judge from the very beginning rather the very first act of entertaining the application by him. Treated it as a suit within his jurisdiction as Family Court under section 5 read with item 3 of the Schedule. Here it needs to be mentioned that the question of jurisdiction was raised before the Warned Judge also, who observed that the argument on the basis of section 488. Cr. P. C. Was erroneous as "Family Court has jurisdiction to try the present suit. It has been provided for In section 5 of the Family Courts Act that the Court has jurisdiction to try such matters as have been provided for in the Schedule to the Act. One of the items mentioned in Schedule to the West Pakistan Family Courts Act. 1964 is (maintenance). In this view of the matter I hold that this Court has jurisdiction to try this suit."
Thus the learned Family Judge, it appears, was conscious from the very first act of entertaining the application for maintenance till its decision as also throughout the proceedings that be was trying the same as Family Court under section 5 of the Family Courts Act treating the subject-matter as one of suits for maintenance under general law and not under section 488 of the Cr. P. C. It cannot be denied that the learned Judge, notwithstanding the mention of a wrong provision of law in the heading of the application for maintenance could entertain it under correct provision of law and within a jurisdiction which was available to him. Learned counsel for the petitioner has rightly pointed out that the contents of the application including the demand therein for past maintenance beyond the date of application clearly show that In pith and substance the application was for grant of maintenance under general law, as according to him, under section 488 of the Cr. P. C., maintenance cannot be claimed beyond the date of application.
6. In the light of the above discussion, I hold that the trial Judge entertained the application for maintenance as a suit under general law and not under section 488 of the Cr. P. C., in bit capacity as Family Court and not as a Magistrate or rut a civil Court that being so and the trial having been properly held as if it was bore a Family Court the judgment and decree impugned before the learned First Appellate Court were passed with competence and jurisdiction. For this reason alone, the impugned appellate judgment which has treated the question of jurisdiction of the trial Court in a totally different perspective has acted without lawful authority. The impugned judgment and decree, therefore, are liable to be set aside as illegal and without lawful authority on this ground.
7. The other point which appears to have been finally determined b' the learned appellate Court relater to the so-called repudiation of marriage of Muhammad Shaft and its effect on question of maintenance. Learned counsel frankly stated that except for Bailies' Digest of Muhammadan Low, he is unable to cite any other authority in support of the proposition relied upon by the learned Additional District Judge that ll a wife is 'repudiate by her husband, any arrears of maintenance that may have accumulated after a decree of the Judge, become irrecoverable. To me it appears that the learned Judge has not properly appreciated the question of so-called repudiation of marriage in the circumstances of this ogee. Be failed to notice that the act of this repudiation on the part of Muhammad Shah preceded the decree in favour of the petitioner qua substances of marriage. If there was any repudiation', its effect qua rights of the wife and the son Including those of maintenance became totally neutralised by the decree for declaration of subsistence of marriage passed by a competent Court in her favour. The maintenance was granted to her by a competent Court after the so-called repudiation and its annulment by the decree of civil Court. It would not be available to the husband to rely upon repudiation again when the same as above- noted had earlier been nullified. The principle applied by the learned Appellate Court, would have had some relevance if after the grant of maintenance Muhammad Shah would haw divorced the petitioner on the assumption that she was his lawfully weed wife. But this position was never taken either by Muhammad Shall or by his successors-in-interest, the respondents In this petition, In the written statement filed in this Court a also during the arguments, the position taken is that "persistent denial on the part of Muhammad Shafi was sufficient to show that there was no marriage at all and it was in this context that the phrase repudiation was used by the learned Additional District Judge in his judgment. This denial of marriage by Muhammad Shaft is of no avail to the respondents after the decree for declaration qua marriage passed in favour of the petitioner. And bemuse the maintenance has been granted after the said decree, therefore, it is all the more necessary to emphasise that no amount of denial of marriage of repudiation of that type on the part of Muhammad Shafi would deprive the petitioner and bet son of maintenances. The approach of the loomed Additional District Judge in this behalf is un sustainable.
8. There is another raped of this mattes. The judgment (Annesare ''H.') of the learned trial Judge in the declaratory suit shows that Muhammad Shafi had made a statement before a criminal Court admitting the factum of his nikah with the petitioner. The said (earned Judge did not attach any importance to this admission on the basis that Muhammad Shafi disowned it before him. In the appeal filed by Muhammad Shaft against the judgment, the Waned Appellate court in the judgment teed 6-6-1966 (Annexure ---E---) however did not follow the course adopted by that learned trial court in behalf and observed the that.. "In this context previous admission on record in a judicial proceedings would conclude the matter against the appellant." In writ jurisdiction such like observations in judgments which are inter partes can be taken due note of. It will, therefore be difficult to assume that it was an absolutely clear case of repudiation of marriage by Muhammad Shafi so as to affect the right of maintenance granted to the petitioners and her son.
9. In the light of the above discussion, l have come to the conclusion that the learned First Appellate Court did not approach the question of repudiation in its true perspective. He failed to notice the essential background of relationship between the parties and thus acted without lawful authority in this behalf as well.
10. I have already held that the learned trial Judge had acted as Family Court and had also conducted the proceedings treating the application for maintenance as suit under general law and thus falling under section 5 of the Family Courts Act and not under section 488 of the Cr. P. C.
Therefore. I do not consider it necessary to examine the alternative argot advanced by the learned counsel for the petitioner, namely. That substantial proceedings during the trial took place after the conferment of Magisterial power section 448 of the Cr. P. C. On the learned Presiding Judge and, therefore, for that reason, the judgment and decree passed by him to 1970 would be with competence even it were to be assumed that the proceedings were under section 488, Cr. P. C. It is cot necessary to go into the details of this argument.
11. It is also to be observed that in view of the findings on the two main questions which were made the basis of the operative part of the impugned appellate judgment, I do not consider it necessary to decide the other questions of merits namely a whether Muhammad Shah was not afforded sufficient opportunity to cross-examine the petitioner and/or to produce evidence in rebuttal or foe that matter whether he suffered any prejudice in so far as the question of rate of maintenance is concerned. The impugned appellate judgment is liable to be set aside on two main grounds already discussed, as being without lawful authority and the case needs to be remanded to the learned District Judge for decision afresh of the appeal. I, therefore, accept this petition and order accordingly. The case is remanded to the learned District Judge who shall decide the appeal himself in accordance with law: There shall be no order as to costs.