P L D 2008 Lahore 398 (PLP)

ZAFAR IQBAL CHAUDHRY, J.

The instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been preferred against the judgment of the learned Additional District Judge, Lahore dated 19-3-2008 and that of the learned Civil Court, Lahore dated 23-11-2006 & 28-3-2007.

2. The brief facts giving rise to the institution of this writ petition are that Mst. Shazia and Miss Kerolence Sadiq respondents No.1 & 2, filed petition under section 36 of Christian Divorce Act, 1869 for the recovery of maintenance allowance (alimony) against Masood Sadiq petitioner before the learned Judge Family Court, Lahore. During the proceedings, the learned Judge Family Court, Lahore passed the order for maintenance allowance of Rs.1,000 each as interim relief, vide order dated 23-11-2006. Against the said order, the petitioner filed a petition for recalling the said order which was dismissed by the learned Court vide order dated 28-3-2007. Being aggrieved by the above said orders the petitioner was constrained to file revision petition before the learned Additional District Judge, Lahore, vide order dated 19-3-2008, the same was accepted to the extent of maintenance allowance which was reduced from Rs.1,000 to Rs.8,00 each. However, the same was dismissed to the extent of levy of maintenance allowance. The above-said orders have been assailed through this writ petition.

3. The learned counsel for the petitioner has laid much stress on the core issue that the Christian Divorce Act is Central Act and it provides its own procedure. It is emphasized that under section 36 of the Christian Divorce Act, 1869, the learned Courts below acting under section 36 ibid could grant interim relief to the wife only. It is further argued that section 36 of the Christian Divorce Act, 1869 only stipulates that alimony pending the suit in no case will exceed one fifth of the petitioner's average of net income for 3 years preceding the date of order whereas the grievance of the petitioner is precisely that both the Courts below have ignored this important issue and have not adverted to the relevant applicable mandatory provision of law i.e., sections 36 and 43 of the Act, ibid.

4. Conversely, the learned counsel for the respondent No.1 and 2 has defended the orders of the Courts below and argued that the order passed by the learned Additional District Judge is in conformity with the law and is on merit. The counsel for the respondents also argued that West Pakistan Act No. XXXV of 1964 (Family Courts Act, 1964) is fully applicable in all the family matters irrespective of the faith and religion of the parties.

5. I have heard the learned counsel for the parties and also gone through the documents attached with this petition.

6. It is evident on record that the learned Judge Family Court while proceedings with the petition filed by the respondents Nos.1 and 2 under section 36 of Christian Divorce. Act, 1869 passed order for interim maintenance of Rs.1,000 each for respondent No.1 (wife) and respondent No.2 (minor). The same was challenged by the petitioner in revision petition before the Additional District Judge, Lahore who after taking into account the provision of law reduced the said maintenance from Rs.1,000 to Rs.800 for each respondents and decided the revision petition. The relevant provisions of law are reproduced here for ready reference:- Section 36 of the Divorce Act, 1869 "

36. Alimony pendente lite. In any suit under this Act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection, the wife may present a petition for alimony pending the suit. Such petition shall be served on the husband; and the Court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem just: Provided that alimony pending the suit shall in no case exceed one-fifth of the husband's average net income for the three years next preceding the date of the order, and shall, continue, in case of the decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be. Section 43 of the Divorce Act, 1869 [

43. Power to make orders to custody of children in suits for dissolution or nullity. In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage, the Court may from time to time, before making its decree make such provision in the decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit; and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the Court.] The petitioner and respondents Nos.1 and 2 belong to Christian faith and the grant of maintenance (alimony) to wife is squarely covered under the Christian Divorce Act but as far as the maintenance of minor pending decision of the proceedings is concerned no specific provision covers this aspect of the matter and in the absence of any specific provision for the grant of maintenance to minor in the Christian Divorce Act, the provisions of Family Courts Act, 1964 being not in conflict with the provision of Christian Divorce Act shall be applicable as there is nothing in the West Pakistan Family Courts Act, 1964 by which it can be said to be inapplicable to Christians. Reliance is placed on PLD 1971 Karachi 887, Mrs. Daphne Joseph v. Malik Eric Roshan Khan, for ready reference relevant portion is reproduced as under:-- "It is true that in `all the three subsections of the above-quoted section there are reference to Muslim Family Laws Ordinance, 1961; but there is nothing in any of them to indicate that the Act of 1964 is applicable exclusively to such matters as fell under the Ordinance or is inapplicable to all those matters which fall outside the scope of that Act. We are, therefore, inclined to agree with Mr. Khaliq that there is nothing in the West Pakistan Family Courts Act, 1964 by which it can be said to be inapplicable to Christians."

7. Relying upon the above-said dictum and having examined all aspects, the maintenance allowance of the respondents as determined by the Additional District Judge, Lahore is found to be in conformity with the provisions of sections 36 and 43 of the Christian Divorce Act and of the Muslim Family Laws, 1961 of West Pakistan. I tend to agree with the arguments of the respondent counsel and I see no illegality or jurisdictional defect in the judgment of the learned Additional District Judge which is not open to any interference in the exercise of the constitutional jurisdiction. Moreover, main case is still pending before the learned trial Court, who can determine the income of the petitioner from the evidence on record and pass the final orders without being influenced by the findings of this Court or the appellate Court. Resultantly, the writ petition is dismissed with no order as to costs. M.H. M-131/L???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.