' 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 24-6-1970 in favour of the Widener 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 its the petition Muhammad Shan, 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 Shad intoned the petitioner and her son till 1960. Thereafter he neglected them and she approached the then Martial Law Authorities for some redress, but without any success. An application under section 488, Cr. P. C. Was also moved but the came was dismissed on account of certain doubt about her marriage itself. She then filed a suit for a declaration against Muhammad Shah that she was his legally wedded wife. The suit was decreed in 1965. It may be noted here that an appeal filed against this decree was dismissed by another Additional District J. Go on 6-64966, Second appeal eel against this decree was dismissed as having abated in 1971 as by then Muhammad Shah had died and the appeal was not paned 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 notion 20 of the West Pakistan Family Courts Act read with section 488, Cr. P. C. Learned counsel for the petitioner after ha En pelted the file made a statement at the bar with award to the precutting& n the application. This statement was not caravanned by the learned counsel for the respondents. According to the former, the application was registered in the Adwa register of Family Court on 12th January, 1966. Later on in February, 1960 the written statement was Sled by Muhammad Shah. The order-sheet shows that he was treated as a defendant while the petitioner was treated an plaintiff. They were both summoned for 4.44966 p usably for pre-trial conciliation proceedings under section 10 of t Family Courts Act. On that day the learned Presiding Judge was on leave. The case was adjourned to 4- 54966 when pretrial conciliation proceedings were ordered to take Owe on 18.5-1966. What in this behalf was ordered to be issued. On the adjourned date Le.
18.5-1 ' the order shows that conciliation proceedings were duly held and it was noted that the effort) Wed. Thereafter there were many adjournments and then after the recording of the evidence again conciliation proceedings were held under section 12 of the Family Courts Act, but the same failed, Ultimately, the learned Judas decreed the salt as Family Court on 24-64910 directing payments of At 400 per MIMI= and its. 200 per {{BLUR PAGE}} to the petit Gaiter ant/ her pF lid E-Ct Qtivoy "from the date of the itutituti of the matt 124 <1066".
2. The lear/ed first Appellate Courty the imnpugr ed judgment set *tide the &wet foraintenance on the main ground that the teamed Family judge had no jut{ icti a tontertain the alication on 12.1 8966 beca by then the magistetial powers under section 488 ofhe Cr. P. C. Had not been co erred on It. And battens@ the applicat/ion was filed under g,Poion 448 Cr, P. C th/erefore, the /tire proedingsere itht out jurisdiction. Ele *lett held thett n/otwithetandi g the decree of the/ civil Cottrt dmittr that the petitioner was lawfully -wedded wife of manPaa01mF . She; eine end her on were not /titled to m/aintenance as as the tearuct8 judge /put it, by the ropudiati of the y &triage bt her husband, she appeared to have lost her right of aintensiace. Devito having held that the learned Fa .Fly Jud//ge had no jurisdictn, the learn Ap Nate Coot - ado *dons with regard to the merits of se includi g the question as to whether Muhammad Shaft habeen afforded nough opportunity f defending he application for maintance as also on the quantum of tea: intonance. In the operative part of the judgment he, however, o ser as follows m- {{BLUR PAGE}} "'I might have remanded the case to settle the above points but now these have lost their importance because I have already held 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 date when it way instituted. It was an inherent defect in the petition which cannot be cured under the law. I have also held 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 learned Family Judge the description of the Court was mistakenly given as 'administrative Civil Judge', the decree clearly shows that the suit was decided by the learned trial Court as 'Ind of Family Court." It has also been noticed that the entire proceedings w conducted by the learned Judge, as 'Family Court,' therefore, the misdescription of the Court in the formal heading and ending parts of t judgment is inconsequential. I agree with the learned counsel that misdescription of t e 0.1urt 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 Pin Gut v. The State (1) 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 civil Court.
4. It Is true that the learned Family Judge was not conferred Magisterial powers 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 under which the application we filed, but it is not the case of the keened counsel for the respondents that the Family (1)PLD 1960SC 30? Court bad no other capacity jurisdiction to try the application swept under section 488, Cr. P. C. What be contended before me was that even though the learned Family Judge bad an independent jurisdiction under section of the Family Courts Act reed with item 3 of Schedule thereto, to pant to the petitioner and her eon doe panel law l it was the choice of the petitioner in the application Sled by her which declaimed the tone of trial. Be argued that if she had under section 5 rend with item 3 of the Medals chosen to seek relief the matter might haw been different. In this behalf be also relied on Settle most and Moist" Israelis mother v. At sad 3 others (1) to mimed that it at the time of entertaining the application the learned trial Court had jurisdiction, then subsequent conferment thereon of magisterial powers would not make its decision with jurisdiction.
5. The proceedings before the learned trial Court have not been properly comprehended by the learned First Appellate Court. As and dimmed above, the learned trial Judge from the vary rather the very ant act of entertaining the application by him, treated it as a snit within his jurisdiction as Family Court ease section 5 mad item 3 of the Schedule. Here it seeds to be mentioned that the of jurisdiction was mimed before the learned Judge also, who observed the argument as the basis of section 488, Cr. P. C. Was erroneous as Court has jurisdiction to try the present sit. It has been provided foe in section 5 of the Family Courts Act that the Court has jurisdiction try such matters as have been provided for in the Schedule to the One of the items mentioned in Schedule to the West Pakistan Family Courts Act, 1964 is (maintenance). In this view of the mattes I hold that this Co has jurisdiction to try this suit"
' Thus the learned Family Judge, it appeals, was conscious from very sestet of entertaining the application for maintenance till its as also throughout the wowed*. That be was trying the mum as Family Court ender section 5 of the Family Courts Act treating the subject as one of snits for maintenance under general law and not section of the Cr. P. C. It cannot be denied that the learned Judge, Bank& standing the mention of a wrong provision of law in the beading of application for maintenance, Gould entertain it under correct provision law and within a jurisdiction which was available to him. Learned for the petitioner has rightly pointed out that the contents of the applies including the demand therein for past maintenance beyond the date of application deafly show that In pith and substance the application foe grant of 1D11616101111CO under general law, as according to him, section 488 of the Cr. P. C., maintenance moot be claimed beyond date of application.
6. In the light of the above discussion, I hold that the trial I entertained the application for maintenance as a suit under general is and not a Magistrate or as a civil Court. That being so and the and net under section 488 of the Cr. P. C.. In his capacity as Family Court having been properly held as if it was before a Family Court, the judgment and decree impugned before the learned First Appellate Court were passed appellate which has treated the question of jurisdiction of the with and jurisdiction. For this reason alone, the impugned trial Court in a totally differs perspective has acted without lawful authority. The impugned judgment and decree, therefore, are liable to 1973SCMR62 be set aside as illegal and without lawful authority on this ground alone.
7. The other point which appears to have been finally determined by the learned Appellate Court relates to the so-called repudiation of marriage of Muhammad Shafi and its effect on question of maintenance. Learned counsel frankly stated that except for Baines' Digest of Muhammadan Law, he is unable to cite any other authority in support of the proposition relied upon by the learned Additional District Judge that if 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 case. Be failed to notice that the act of this repudiation on the part of Muhammad Shaft preceded the decree in favour of the petitioner qua substance 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 were 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 Shafi would have divorced the petitioner on the assumption that she was his lawfully wedded wife. But this position was never taken either by Muhammad Shafi or by his successors-in-interest, the respondents in this petition.
In the written statement filed in this Court as also during the arguments, the position taken is that "persistent denial on the part of Muhammad Shaft 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 Shafi is of no avail to the respondents after the decree for declaration QUA marriage passed in favour of the petitioner. And because the maintenance has been granted after the said decree, therefore, it is all the more necessary to emphasise that no anion of denial of marriage of repudiation of that type on the part of Muhammad Shaft would deprive the petitioner and her son of maintenances approach of the learned Additional District Judge in this behalf Is un sustainable.
8. There is another aspect of this matter, The judgment (Annexure SI of the learned trial Judge in the declaratory suit shows that Muhammad Shaft had made a statement before a criminal Court admitting the fetus's of his nikah with the petitioner. The said learned Judge did not attach any importance to this admission on the basis that Muhammad Shaft disowned it before him. In the appeal filed by Muhammad Shafi this judgment, the learned Appellate Court in the judgment dated 64-1966 (Annexure SE'), however, did not follows the course adopted by the learned trial Court in this behalf and observed that. "In this context prevail admission on record in a judicial proceedings would aoudads the matter I stained the appellant." In writ jurisdiction such like observations in judgments which are listed port can be taken due note of. It will therefore, be difficult to assume that it was an absolutely clear case repudiation of marriage by Muhammad Shafi so as to affect the right mentioned granted to the petition and her son,
9. In the light of the above discussion, I 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 failing 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 liff0111601 advanced by the learned counsel for the petitioner, ninety, that end stinted proceedings during the trial took place after the conferment of Magisterial power section 448 of the Cr. P. C. On the learned Presiding 3a114 and, therefore, for that reason, the judgment and decree passed by him in 1970 would be with competence even if it were to be assumed that the poured were under section 488, Cr. P. C. It is not 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 ; whether Muhammad Shah was not afforded sufficient opportunity to cross-examine the petitioner savior to produce evidence in rebuttal or for 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 Iwo 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. These shall be no order as to costs. . Case remanded.