P L D 1961 (W (PLP)

This revision petition is directed against the order of Mr. Iqbal Nadeem, Magistrate 1st Class, Rawalpindi, dated the 4th of July 1960, whereby the petitioner has been ordered to pay Rs. 1,860 to the respondent as arrear of maintenance allowance for their children, Qamar‑uz‑Zaman, Zubaida Khanam and Kubra Khanam.

2. The facts giving rise to this revision petition are these. On the 13th of October 1955, Chaudhri Abdul Qadir, Magistrate 1st Class, Rawalpindi ordered the petitioner to pay Rs. 60 to his wife Mst. Munawar Jan respondent as monthly allowance for her maintenance and the maintenance of t heir three children named above at the rate of Rs. 15 per month each. On the 4th of May 1956, the High Court quashed the order of the Magistrate in respect of the maintenance allowance allowed to Mst. Munawar Jan respondent, but upheld his order in respect of the three children. On behalf of the children, Mst. Munawar Jan then applied to the Magis trate for realisation of the arrears of their maintenance allowance @ Rs. 45 p. m. and on the 2nd of April 1957 the petitioner paid Rs. 540 to the respondent for the period from 13‑10‑1955 to 12‑10‑1956. It appears that in the meantime, the petitioner had made an appli cation to the Guardian Judge under section 25 of the Guardians and Wards Act for the custody of the children and had obtained an ex parte order on the 28th of November 1956 to the effect that the children be delivered into his custody. Against this order the respondent filed an appeal in the High Court. While the appeal was pending in the High Court the respondent made another application to the Magistrate on the 3rd of April 1957 for realisation of the arrears of maintenance allowance from 13‑10‑1956 to 3‑4‑1957. On the 10th of June 1957, the petitioner appeared before the Magistrate and raised the objection that in view of the order of the Guardian Judge he was not liable to pay the maintenance allowance. He also produced a copy of the order of the High Court dated the 21st of March 1957 by which the miscellaneous petition of Mst. Munawar Jan for staying the ex parte order passed by the Guardian Judge on the 28th of November 1956 was dismissed. On the basis of this order, the learned Magistrate, by his order dated the 10th of June 1957, held that the maintenance order could not be executed and accordingly the application of Mst. Munawwar Jan was consigned to the record room. On the 4th of May 1959, the High Court accepted the appeal of Mst. Munawwar Jan which she had filed against the ex parte order of the Guardian Judge dated the 28th of November 1956 and remanded the case for fresh decision after affording both the parties an opportunity to lead evidence on the issues involved in the case. This litigation con tinued right up to the 11th of February 1960 when the Guardian Judge directed that the custody of Qamar‑uz‑Zaman be given to the petitioner. During this interval, the three children all along lived with the respondent and are still living with her. Both the parties have filed appeals against the order of the Guardian Judge dated the 11th of February 1960 which are pending in the High Court and meanwhile the implementation of the order of the Guardian Judge has been stayed.

3. After the appeal of Mst. Munawar Jan against the ex parte order of the Guardian Judge had been accepted by the High Court, she presented another application to the Magistrate on the 3rd of June 1959 for realisation of the arrears of the main tenance allowance from 13‑10‑1956 to 12‑5‑1959 and thereafter from month to month till the decision of the application. The Magistrate, after carefully reviewing the facts of the case, directed the petitioner to pay Rs. 600 as maintenance allowance for Qamar uz‑Zaman from 13‑10‑1956 to 11‑2‑1960. He also directed the petitioner to pay Rs. 630 to Zubaida Khanam and Kubra Khanam each for the period from 13‑10‑1956 to 13‑4‑1960. The petitioner went up in revision before the Sessions Judge who dismissed his petition. He has now come up to this Court for the revision of the order of the learned Magistrate dated the 4th of July 1960.

4. The main ground which has been urged before me by the learned counsel for the petitioner is that the respondent is not entitled to recover arrears of maintenance allowance for more than a period of twelve months prior to the date of the application which had been filed by the respondent on the 3rd of June 1959. The argument is based on the second proviso to subsection (3) of section 488 of the Code of Criminal Procedure. This proviso reads as follows "No warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due." The plain meaning of this proviso is that a person in whose favour an order for maintenance has been made must apply to the Court to recover arrears of maintenance allowance within one year from the date the arrears became due. The obvious intention of the legislature in enacting this proviso is to prevent a person in whose favour an order is made from being negligent. In U. Hpay Latt v. Ma Po Byu (I L R 13 Rang. 289), Mosely J., while dealing with a similar question, held as follows :‑ "It: was not meant that a loop hole should be given to the person against whom an order for maintenance was made to evade payment by preventing the service of process on him. In fact the proviso was evidently worded in the way it was ex pressly to preclude the possibility of such an evasion." The above‑mentioned case had to be closed as the person against whom the order had been passed could not be traced. And there after when a fresh application was made for realisation of main tenance allowance for the past fifteen months, the objection was raised on behalf of the opposite party that the arrears of maintenance allowance for more than twelve months could not be recovered. Repelling this contention, the learned Judge had made the observations quoted above and had held that the order of the Magistrate allowing enforcement of the order of maintenance for fifteen months was correct. After a careful consideration of the wording of the proviso, I am in respectful agreement with the observations made by Mosely J. In this view of the matter, there can be no doubt that the respondent is entitled to realise the arrears of maintenance allowance for the period from 13‑10‑1956 to 3‑4‑1957 when her application had been consigned to the record q room by the Magistrate. She had made the application within one year from the date, the arrears became due, and had complied with the condition laid down in the proviso referred to above. If the learned Magistrate did not proceed with the execution then, the delay is certainly attributable to the act of the Court for which the respondent cannot be made to suffer.

5. It is not disputed that the respondent is entitled to realise the arrears of maintenance allowance for a period of one year from the date on which the last application was made. As pointed out earlier, the last application was made on the 3rd of June 1959. The respondent is, therefore, entitled to realise the arrears up to the 3rd of June 1958.

6. The question which remains to be considered is whether the respondent is entitled to realise the arrears of maintenance allowance from 3‑4‑1957 to 3‑6‑1958. The learned Magistrate, while consigning the earlier application to the record room, had held that in view of the order of the High Court the maintenance order could not be enforced. Thereafter, the appeal of the res pondent against the ex parte order of the Guardian Judge was accepted by the High Court on the 4th of May 1959. If during this period the respondent had made any application for realisation of the arrears of the maintenance allowance it would have met the same fate as the one which she had made on the 3rd of April 1957. Soon after the appeal was decided by the High Court, she presented the application to the Magistrate on the 3rd of June 1959, for realisation of the arrears. It is, therefore, clear to me that it cannot be said that the respondent was in any way negligent in realising the arrears of the maintenance allowance from the respondent. There can be no doubt that it was the act of the Court which had prevented her earlier from enforcing the order against the petitioner. I do not think that legislature ever intended to deprive a person placed in such circumstance from realising the arrears of maintenance allowance for more than period of one year. It is a well settled principle that no party can b made to suffer on account of an act of the Court. This principle is embodied in the maxim Actus Curiae Neminem Gravabit, that is to say, an act of the Court shall prejudice no man. This maxis is founded upon justice and common sense. The respondent had obtained an ex parte order from the Guardian Judge for the custody of the children and then had raised the objection before the Magistrate that the maintenance order could not be enforced against him. The Magistrate had accepted this plea and had con signed the application of the respondent to the record room. And as soon as the ex parte order of the Guardian Judge was set aside by the High Court, the respondent had moved the Magistrate for realisation of the arrears of the maintenance allowance. The fact cannot be lost sight of that it was oit account of the objection raised by the petitioner himself that the maintenance order could not be enforced earlier against him. He cannot now be allowed to make a profit out of his own objection. In conformity with the doctrine that act of the Court shall prejudice no man, the Court is bound to interfere if it perceives that its own order is; about to be used for purposes which are not consistent with justice. After a careful consideration of this aspect of the matter, I am of the view that in the circumstances of this case the respondent is entitled to recover the arrears of maintenance allowance even in respect of the period from 3‑4‑1957 to 3‑6‑1958.

7. The learned counsel for the petitioner has also urged that the Magistrate could not have passed the order for the payment of the arrears which became due after the application had been filed by the respondent. In my opinion this contention is without any substance. The respondent in her application had also prayed that in addition to the arrears up to the 3rd of June 1959, the maintenance allowance which may become due till the decision of her application should also be realised from the respondent. Under the circumstances the learned Magistrate was perfectly justified in allowing the arrears of maintenance allowance which had become due till the disposal of the application.

8. Lastly, the learned counsel for the petitioner has argued that Zubaida Khanam and Kubra Khanam have now attained the age of puberty and consequently they do not fall within the category of "child" and, therefore, the petitioner is not liable to maintain them. In my opinion this contention is equally devoid of force. Firstly, there is no material on the record to establish that they have attained the age of puberty, but even if they have, they have not ceased to be the children of the petitioner. A father is) bound to maintain his children so long as they are unable to main tain themselves. This is the only condition which is laid down in section 488 of the Code of Criminal Procedure. It has not been even suggested that Zubaida Khanam and Kubra Khanam are now able to maintain themselves. The age of the child is not Io very material. If a child having attained the age of majority is unable to earn its living due to lack of physical and mental develo pment, the father is certainly liable to maintain‑him. For the purposes of section 488, a child whatever his age may be remain, a child so long as he is unable to maintain himself.

9. For the reasons given above, I see no force in this petition which is hereby dismissed. K. B. A. Petition dismissed.