1980 PLP 385 (SCMR)

DORAB PAIEL, J.‑The petitioner married the first respondent to whom we will refer as the respondent on 2nd October, 1964 according to Hanfi Law. The marriage was apparently not successful, because, according to the petitioner, his wife (the respondent) left him in 1965, therefore, after a delay of nearly seven years, he sent her a notice directing her to return to him. Instead of returning to him, she filed a suit for maintenance against him in the Court of the IVth Civil and Family Judge. Karachi, therefore, the petitioner filed a suit against the respondent for the restitu tion of conjugal rights in the same Court. The respondent then filed a suit in the same Court for the recovery of her prompt dower These three suits were heard together and the respondent's suit for prompt dower was dismissed, whilst the petitioner's suit for restitution of conjugal rights was decreed. On the other hand, the respondent's quit for maintenance was decreed at the rate of Rs. 30 per month (against the respondent's claim for Rs. 100 per month), but the maintenance was decreed from the month of November, 1965, although the suit had been filed in March, 1972. According to the petitioner, as he and his wife were Hanfis, the Family Court had erred in decreeing the respondent's claim for arrears for maintenance, therefore, he filed an appeal against the decree passed against him in the District Court of Karachi and in the events that happen ed, this appeal came up for hearing before an Additional District Judge on or about 15th January 1976. The learned additional District Judge pointed out in his order that the hearing of the appeal had been repeatedly adjourned, because the petitioner's learned counsel was repeatedly absent. The learned Additional District Judge, then, pointed out that the appeal merited dismissal, be cause proper Court fees had not been paid. Finally, the learned Additional District Judge observed "on merits also I see no substance in the present appeal". He then examined carefully the evidence produced by the parties and held "I, therefore, see no reason to differ with the view taken by the Court below." Accordingly, as he dismissed the petitioner's appeal, the petitioner challenged the concurrent findings of the Additional District Judge and of the trial Court in a writ petition in the Sind High Court. The writ petition appears to have been pressed on the legal objection that arrears of maintenance could not be decreed under Hanfi Law. This writ petition was dismissed with the following observations :‑ "He contended that the Family Court had no jurisdiction to grant past maintenance for which the learned counsel relied on a decision of Jammu & Kashmir High Court decision reported in (P L D 1967 A J & K 9). No doubt this decision supports the learned counsel on the view taken therein that under the Hanfi Law past maintenance cannot be granted. It would appear that in this case a regular suit was filed for recovery of past maintenance. In the present case, however, the suit was filed in a Family Court and its jurisdiction admittedly extends to granting a decree for mainte nance. The Supreme Court of Pakistan in a case where past main tenance was granted by Arbitration council under section 9 Ordinance VIII of 1961 rejected the. plea that past maintenance could not be granted on the ground that no such prohibition is 14 contained in section 9 of the said Ordinance. The Family Court Act is an act pari materia to Ordinance VIII of 1961 and since under this Act as well no such prohibition is prescribed we are of the view that the Family Court had the jurisdiction to grant a decree for past maintenance. In our view the Supreme Court ‑case referred to above is a parallel case which is applicable to the facts and the circumstances of the present case." Accordingly, the writ petition was dismissed. Hence this petition for leave. Learned counsel vehemently contended that the writ petition had been illegally dismissed on the basis of an unknown judgment of the Supreme Court of which no notice had been given to him. Similarly, he pointed out that the citation of the case of the High Court of Azad Jammu and Kashmir on which he relied was erroneous. This too is correct, but with the assistance of members of the Bar. who were present at the ' hearing of the petition, we found out that the leading case of this Court on the ques tion under consideration was the judgment of Wahiduddin Ahmad, J., in Muhammad Nawaz v. Mst. Khurshid Begum and three others (PLD1972SC302). We respectfully agree with the view taken in this judgment and as it is fatal to learned counsel's submission, it is unnecessary to examine his criticism or the mistake in the judgment under appeal. Learned counsel then submitted that the Additional District Judge had erred in not granting time to the petitioner to pay proper Court fees. The submission might have merited examination if the petitioner's appeal had been dismissed solely on the ground that proper Court fees had not been paid. But, as it was dismissed, and rightly dismissed on the ground that the petitioner had no case, it is unnecessary to examine the petitioner's grievance about the Court fees for which he was liable on his appeal in the District Court. The petition is utterly devoid of merit and is dis missed. Petition dismissed.