2003 PLP 2650 (YLR)

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. 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. In support of her claim, the respondent produced Saeed Hussain, Shabbir Ahmad and Aurangzeb as her witnesses and she also appeared in the witness-box. 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. 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. 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). In reply Sardar Suleman Khan, Advocate, the learned counsel for the respondent, has frankly conceded the position but he has submitted that maintenance allowance from the date of presentation of application to the date of decision can only be ordered and not before that. 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. 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. 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. In view of the above-stated petition, the Family Court. Rawalakot was not at all empowered to issue the order for recovery of past maintenance allowance. On this account, the impugned order has been passed in an erroneous and illegal manner which is not sustainable. However, the respondent is entitled to the maintenance allowance from the date of presentation of her application till the date of decision of the Court below. 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. Order accordingly. H.B.T./53/Sh.C(AJ&K)