P L D 1969 Peshawar 62 (PLP)

This judgment will dispose of Criminal Reference No. 280 of 1967 and Criminal Revision No. 289 of 1967, which relate to the same matter.

2. Alif Din petitioner divorced his wife Mst. Diljan same time back. An application was made on behalf of three children of Alif Din, namely, Shaukat Ali, Akhtar Ali and Mst. Nasim Akhtar, on 6th January 1966, under section 488, Cr. P. C., for grant of maintenance to them at the rate of Rs. 50.00 each per mensem.

3. It is stated at the bar that an application for the same purpose was made earlier before an Arbitration Council which was transferred to the Court of a Magistrate, where it was dismissed because of lack of jurisdiction. The proceedings relating to that application are not before this Court; nor any argument has been advanced on the basis of that application. Therefore, nothing determinative can be held in this order about those proceedings.

4. On the application filed on behalf of the children of Alif Din on 6th January 1966, evidence wag recorded by a learned Magistrate, Campbellpur, from both the sides. After that, by an order, dated 8th June 1967, of the learned Magistrate held that all the three children were entitled to maintenance. He directed Alif Din to pay a sum of Rs. 50 for inch child, making a total of Rs. 150 to the children, 43 maintenance from the date of the order. He also ordered Alif Din to pay the arrears of the maintenance for the three children at the above‑mentioned rate from 22nd September 1961, which is alleged to be the date on which the children were stated to have been turned out of the house by Alif Din. Alif Din moved the learned Sessions Judge, Campbellpur who, by his order, dated 26th September 1967, made a reference to this Court, recommending the setting aside the above order passed by the learned Magistrate in respect of the arrears of maintenance and also in respect of the maintenance awarded to Shaukat Ali. According to the learned Sessions Judge, Shaukat Ali was a grown up person and an employee of a mill and thus was able to maintain himself; therefore he was not entitled to any maintenance from his father. Alif Din has filed a separate revision petition challenging the order of the learned Magistrate on the grounds stated in the reference by the learned Sessions Judge as well as on various other grounds.

5. Mian Muhammad Yunus Shah, the learned counsel for Alif Din, has raised the following contentions :‑ (i) that by virtue of section 5 of the West Pakistan Family Courts Act, 1964 (hereinafter called the Act), the jurisdiction to grant maintenance, claimed by the children in this case, was exclusively conferred on the Family Courts constituted under the Act, therefore, the learned Magistrate had no jurisdiction to pass the impugned order. The learned counsel has also contended that the Provincial Government has invested all the Judges of the Family Courts with powers under section 488, Cr. P. C., available to Magistrate 1st Class under the said Code, on 5th April 1966. The learned counsel has further contended that the Act has now been made applicable to entire West Pakistan, by a notification, dated 21st February 1967. On the basis of these submissions, the learned counsel argued that the impugned order having been passed on 8th June 1967, was without jurisdiction; (ii) that Akhtar Ali, minor child, was about 11 or 12 years of age; about whom Alif Din having made an offer that he was ready to maintain him if the child lived with him, the order of maintenance in his favour could not be passed. The learned counsel also submitted that Alif Din had instituted pro ceedings for the custody of children before the institution of the present application, though it was after the institution of the earlier application mentioned in paragraph No. 3 above. He has relied in this connection on Mst. Hamida Begum v. Syed Mashaf Hussain Shah P L D 1958 S C 284; (iii) that according to the admission made in the written arguments, submitted on behalf of the children before the learned Magistrate, the claim for maintenance of Mst. Nasim Akhtar was placed at Rs. 40 per mensem, therefore, the learned Magistrate should not have granted Rs. 50 for her; (iv) that by virtue of section 488 (2), Cr. P. C,, the learned Magistrate was debarred from granting the arrears of main tenance to the children prior to the date of application for maintenance i; and (v) that Shaukat Ali, according to the statement of his mother made on 10th March 1966, was 17 years of age at that time. By the time that the impugned order was passed on 8th June 1967, he had attained the age of 18 years. Therefore, having become major he could not be granted maintenance. In this connection, the learned counsel relied on the fact that Shaukat Ali was an able bodied adult and was employed in a mill and was earning his livelihood; therefore in view of attaining the age of majority, no maintenance could be granted to him under section 488, Cr. P. C.

6. There is force in each one of the contentions raised by the learned counsel for Alif Din. In so far as the ouster of jurisdiction of a Magistrate 1st Class, under, the Criminal Procedure Code about an application for maintenance, is concerned, the relevant provision is section 5 of the Act, which is reproduced below for reference sake :‑ "Section

5. Jurisdiction.‑Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule." In this case the application for maintenance which matter is specified in the Schedule, was made on 6th January 1966. The Judges of the Family Courts were empowered to grant main tenance under section 488, Cr. P. C. on 5th April 1966, and the Act was made applicable to entire West Pakistan on 22nd February 1967. On the last mentioned date, the application in the present case was pending before a Magistrate under the Criminal Procedure Code. It has been held in Noor Zaman v. Mst. Saidano (P‑L D 1967 Pesh. 343) that section 5 read with section 20 of the Act has ousted the jurisdiction of the Magistrates to deal with applications A under section 488, Cr. P. C. I respectfully adopt the reasons given in that authority and do not feel compelled to restate all those reasons. But the question involved in this case is whether the ouster of jurisdiction of Magistrates is also complete in respect of the proceedings pending before them under section 488, Cr. P. C., when the Act was made applicable to a particular area. For resolving that question, it will have to be seen whether section 5 of the Act is retrospective in its application or not. It is true that though express words have not been used so as to indicate that the said provision is retrospective, i.e., it will apply to all the pending proceedings; however, it is not always necessary that retrospective application is found in express words. In the absence of express words, whenever there is clear intendment to the effect that some provision will be retrospective in its application, effect can be given to that intendment. Sub section (4) added to section 1 of the Act provides that nothing in the Act shall apply to any suit, or any application under the Guardians and Wards Act, 1890, pending in any Court immediately before the coming into force of the Act, and that all such suits and applications shall be heard and disposed of as if this Act were not in force. Subsection (5) of section 1 is a corollary of subsection (4). It is clear from the reading of these provisions that the Legislature Intended that only suits and applications under Guardians and Wards Act were to be disposed of by the Courts in which they were pending at the time of to coming into force of the Act. In other words, the necessary Implication and intendment derivable from these two provision is that all other matters padding at the time of the coming Into force of the Act will be taken up and disposed of by the new forums created by the Act. This Intendment is further supported by the use of strong language in section 5 of the Act, wherein the words used are : "the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule." Apart from the stress on the exclusiveness of the jurisdiction the three stages of the proceedings are dealt with separately, i.e. :‑ (i) entertaining a matter; (ii) hearing a matter; and (ill) adjudicating a matter. This provides sufficient scope for the proposition that if a matte has been entertained in another forum; on the coming in force of the Act if that matter has gone to the exclusive jurisdiction of a forum created by the Act, it shall be heard and adjudicated by the new forum. In addition to this I find that the language used in section 20 is also in line with the proposition that the Legislature intended the application of section 5 to be retrospective, except to the extent indicated in subsections (4) and (5) of section 1 of the Act. Therefore, I hold that section 5 o the Act has retrospective application. As soon as the Act was made applicable to the district concerned, i.e. on 21st February 1967, the Magistrate ceased to have any jurisdiction in the matter and, therefore, the impugned order passed by him on 8th June 1967, is without jurisdiction. It may be mentioned here that the learned counsel for Alif Din has cited Pakistan etc. v. Devachand Muljimal and others (P L D 1968 Kar. 107), Government of West Pakistan v. Ghulam Sarwar Khan (P L D 1962 Pesh. 115) and Ghazi and others v. The State (P L D 1962 Lah. 662) and some other old Indian cases, in support of the proposition that the change of forum by a law is always retrospective because it is a matter of procedure. I have no dispute with the proposition that a procedural change brought about by a new law is to be treated as retrospective, unless by clear words or necessary Intendment it is shown to be prospective. But the question whether or not the change of forum is always a matter or procedure is not free from difficulty. In my view, whenever the change of forum is in addition to dealing with purely procedure; and it also affects the existing rights of the parties; as to the continuance or culmination of certain proceedings in the existing forums, the change of forum may not be retrospective unless it is made retrospective by clear words used or clear intendment shown in the Amending Act. For example, where the remedies, available in the earlier forum or, against the decisions of the earlier forum, are more substantial or are more in number than the remedies provided in or against the decisions of, the new forum, in my view the change of forum would affect the rights of the parties. Therefore, the change of forum in such a situation, will not only be mere procedural matter but something more than that; and thus will not be retrospective. The cases cited by the learned counsel in support of his contention do support him, in so far as they go. But in none of those cases, it has been held that when the change of forum affects the rights of the parties, the change remains procedural and applies retrospectively. In each one of those cases, the circumstances of the relevant change were taken note of and then a decision was given. In the present case I have already held that we need not fall on any general principles of retrospectively, because there is a necessary intendment contained in the provisions of the Act showing that the change, of forum provided in section 5 thereof, is retrospective. Therefore, in this view of the matter, I hold that the Magistrate had no jurisdiction to decide the application on 8th June 1967.

7. In view of my decision on contention Na. I raised by the learned counsel for Alif Din, it is not necessary to deal with the other contentions. However, as they have been argued by both the learned counsel at length; therefore, I deem it proper to deal with them, though not in detail.

8. In respect of contention No. 2 of the learned counsel for Alif Din, it will suffice to say that the Supreme Court authority cited by the learned counsel P L D 1958 S C 284 fully supports him. There is evidence in this case that Alif Din not only offered to maintain the minor children but also filed an application in the Guardian Court for their custody. The only answer given by the mother of the children in refusing to send the children to Alif Din's house was that she had been turned out by him along with the children. This by itself is hardly a ground to be conclusive while deciding the question of refusal or neglect by the father to maintain his children. There should be stronger reasons shown by the mother for refusing the insistent offer by the father. Tae learned counsel for the respondents has vehemently stressed that the offer was only a counterblast. I do not agree with him. Alif Din has repeated the offer in this Court and I have noticed that he is pursuing the application for the custody of the children in the Guardian Court. Had it been only a counterblast, he would have withdrawn that application after the earlier application for maintenance was dismissed by another learned Magistrate because of lack of jurisdiction. Therefore I hold that, at least, in respect of Akhtar Ali who, admittedly, has attained the age of 11 or 12 years and also in respect of Shaukat Ali who also, admittedly, has attained the age of about 18 years, the order passed by the learned Magistrate cannot be maintained.

9. In respect of contention No. 3, i.e., maintenance of Rs. 50 allowed to Mst. Nasim Akhtar, it is to be noticed that in the written argument for the children it was stated that) Rs. 40 be granted as maintenance to Mst. Nasim Akhtar. In) view of this clear admission, the learned Magistrate should not have granted Rs. 50 in her favour. The learned counsel for the respondents, however, replied that the mention of Rs. 40 is only a typing mistake. I do not agree with him because there has been no attempt for correcting that figure. Moreover, it does not appear to be a typing mistake; because of Rs. 50 each was being claimed for the sons, the party might well have considered Rs. 40 per mensem sufficient for the youngest daughter.

10. On the question of the grant of arrears of maintenance under section 488, Cr. P. C., the learned counsel for Alif Din relied only on subsection (2) of section 488, Cr. P. C., which I clearly empowers the Magistrate to grant maintenance only from the date of the application and not for any period prior to the application. In view of this clear provision of law, the learned counsel for the respondents could not advance any argument in rebuttal. However, he relied on a portion of the commentary by Mitra on section 488, Cr. P. C., wherein it has been mentioned that if there is a decree of Civil Court or an agreement between the parties, the Magistrate may grant maintenance for a period to the application. When asked whether these comments by the learned author will apply to the present case, the learned counsel for the respondents frankly conceded that the comments will not apply because the prerequisites do not exist in this case. Therefore, I find that the order for payment of the arrears of maintenance for a period before the application is clearly without jurisdiction. The above observation by me may not be considered to have accepted the comments and views of the learned author in the commentary on section 488, Cr. P. C., referred above. It is not necessary to deal with the question of decree of a Civil Court or an agreement between the parties in detail in this order, because it is not called for.

11. The last contention raised by the learned counsel for Alif Din has also sufficient force. It is admitted that on the day the impugned order was passed, Shaukat Ali had attained the age of 18 years, i.e. he had become major. It is also an admitted fact that he is an able‑bodied person and he can earn his liveli hood. It is further admitted that before the impugned order was passed, the said Shaukat Ali was earning his livelihood by serving in a mill. Both the learned counsel argued the question whether or not when a child attains the age of 18 years, he is entitled to maintenance under section 488, Cr. P. C. There are some decided cases in support of both the views; but it is not necessary to deal with that question of law in this case; because on facts found, it has been proved that Shaukat Ali is abled‑bodied person, can earn his livelihood, and has, in fact, been earning his livelihood independently. In view of these circumstances, it is not possible to hold that he is a child who is unable to maintain itself. Therefore, the provisions of section 488, Cr. P. C. are not attracted in this case anti the order passed in his favour is not maintainable,

12. In view of my decision on the question of the jurisdic tion of the learned Magistrate to pass the impugned order, I hold that the said order was passed without jurisdiction and is hereby set aside. The reference as well as the revision petition stand accepted. S. A. H. Reference and revision petition accepted.