1. This appeal has been filed against the decision of Judge Family Court, Poonch, Rawalakot dated 10th July, 2002, whereby the appellant was ordered to pay Rs.500 per month as alimony to the respondent with effect from June, 1997.
2. The brief facts forming the background of this appeal are that Mst. Makhmal Jan, respondent herein, filed a suit for her maintenance allowance from June, 1996 till decision of the case before Judge Family Court, Poonch, Rawalakot. It is averred that she was forcibly ousted from the house of the appellant in June, 1996 and thereafter she was not paid any maintenance allowance. It is further stated that appellant did not try to populate her and he has solemnized another marriage.
3. The suit, is resisted by the appellant. It is averred in his objections that appellant tried his best to populate the respondent but she did not turn up to live with him, therefore, she is not entitled to the above mentioned maintenance allowance.
4. The appellant produced Mehmood Ahmad and Muhammad Ashraaf Khan as his witnesses and Babar Hussain attorney for the appellant also appeared in the Court, as a witness.
5. After completion of the proceedings, the learned Judge Family Court arrived at the conclusion that a suit for the past maintenance allowance is competent before a Family Court. In this manner, the appellant was ordered to pay maintenance allowance to the respondent in the tune of Rs.500 per month from June, 1997 till the date of decision vide its order dated 10-7-2002. Hence, this appeal.
6. Sardar Ajaz Khan, the learned Advocate appearing on behalf of the appellant, has vigorously contended that the suit for the past maintenance allowance cannot be presented before a Family Court, therefore, the impugned order/decision is erroneous which cannot be sustained. In support of his arguments, the learned counsel has cited an unreported judgment of this Court titled Waheeda Khanum v. Muhammad Saeed Ashraaf Khan (Appeal No.16 of 2002, decided on 23-10- 2002).
7. I have given my dispassionate thought to the arguments raised by the learned counsel for the parties and perused the case-law cited by the learned counsel for the appellant. The controversy of the past maintenance allowance has already been resolved by this Court in an unreported case of this Court titled Waheeda Khanum v. Muhammad Saeed Ashraaf Khan (Appeal No.16 of 2002, decided on 23rd October, 2002) and in another case titled Mst. Jamila Akhtar v. Muhammad Sadiq 1999 YLR 1835. Both the above judgments are based on the judgment of the Apex Court of AJ&K titled as Mst. Zareena Begum v. Nisar Hussain and another 1996 SCR 82, therefore, the Court below fell in error while relying upon the authorities from Pakistan jurisdiction which are based on a different law known as West Pakistan Family Courts Act, 1964.
8. It will be useful to note here that an application under section 488, Cr.P.C. Is quite distinct and different in nature, whereas a decree for past maintenance is passed under West Pakistan Family Courts Act, 1964. There are no limitations as to the amount of alimony under West Pakistan Family Courts Act, whereby no past maintenance except from the date of application can be granted in exercise of magisterial powers available to Family Courts in Azad Jammu and Kashmir under section 488, Cr.P.C. There is also a limitation as to quantum of the maintenance which can be granted thereunder. Furthermore, the proceedings to enforce the right for maintenance under section 5 read with section 7 of West Pakistan. Family Courts Act and under section 488, Cr.P.C. Are quite distinct and different in nature as the former are civil and the latter are criminal or quasi- criminal and different procedures are provided for conduct of two proceedings.
9. It will also be relevant to point out that under section 20 of Azad Jammu and Kashmir Family Courts Act, 1993, the Government vests powers of Magistrate First Class to a Judge of Family Court to hear the case under section 488, Cr.P.C.
10. The epitome of the above discussion is that, I accept this appeal and modify the impugned order dated 10th July, 2002 to the extent that, the appellant shall pay maintenance allowance to the respondent with effect from 13th June, 2000 to 10th July, 2002 only in tune of Rs.500 per month. The appeal is disposed of in the manner indicated above.
11. H.B.T./53/Sh.C(AJ&K)