1976 P Cr (PLP)

Date of hearing : 7th May 1976. Application of the respondent under section 488, Cr. P. C. for main tenance allowance was accepted by Miss Suraya Azeem, a local Magistrate Ist Class vide his order dated 5th June, 1965 fixing the above allowance at Its. 20 per mensum the fact of this case are as follows:‑ Allah Rakha married Mst. Aimna Bibi at Lahore on 23rd August, 1958. Mst. Kausar Perveen who was about five years at the time of the institution et the proceedings under section 488, Cr. P. C. before the learned Magistrate was borne, of this covertures. The spouses are living separate. They are pitched in severe litigation. Kausar Perveen respondent is living with her mother at Lahore. Rs. 50 were demanded as monthly maintenance allowance fair the child Allah Rakha resisted the proceedings. He alas, offered to maintain the child as well as her mother at his house. The learned Magistrate accepted the application fixing the monthly maintenance allowance for the child at Rs. 20 per mensum. The learned Magistrate omitted to take notice of the offer of Allah Rakha to maintain the child at his house. Allah Rakha has moved for revision of the above order. The proceedings are forwarded for revision on the following ground. The impugned order is not open to question on merit. The omission on the part of the learned Magistrate to consider the above offer of the Petitioner also does not detrect from legality of the order. The child is very young. It is in her interest that she should remain with the mother. The said offer cannot relieve the petitioner of his liability to maintain the child who was living with the mother. The petitioner can enforce his claim for restoration of the child to his custody if he feels so advised. The quantum of maintenance allowance fixed by the learned Magistrate also cannot be groused on any valid ground.

2. From the materiel on the record competency of Criminal Courts, at Lahore for the proceedings appear to be somewhat doubtful. There is nothing on the record to suggest that the petitioner had ever lived at Lahore. He is permanently residing at Lyallper. The mere fact that be married the mother of the child at Lahore cannot invest the Criminal Courts at Lahore with jurisdiction for the proceedings leading to the revision petition. Further evidence is required so determine competency of the Criminal Courts at Lahore for these proceedings. The case is recommended to the Hon'bla High Court for a direction‑ to the learned Magistrate to hold an enquiry whether the Courts at Lahore were competent for these proceedings. The impugned order shall remain in tact if the learned Magistrate holds that the application moved on behalf of the petitioner was cognizable by the criminal Courts at Lahore or tile order will have to be re‑called for want of jurisdiction in the learned Magistrate for the proceedings. Necessary order respectfully solicited. ORDER OF THE HIGH COURT ABDUL JABBAR KHAN, J.‑Reference under section 438, Cr. P. C. eras submitted by the learned Additional Sessions Judge, Lahore, on Ist February, 1966, to this Court to quash the order of the learned Magistrate under section :188, Cr. P. C. for want of jurisdiction.

2. I have gone through the forwarding note submitted by the learned Additional Sessions Judge to this Court and find that it is based on valid grounds. The record of the case clearly shows that the petitioner never lived at Lahore and in fact was a perenancat resident of Lyallpur. The mere fact that the mother of the child was married to him at Lahore cannot bestow jurisdiction on the criminal Courts at shore to attend to the Proceedings under this section. Moreover, the petitioner has appeared be fore me and has submitted that since long he has compromised with his wife and is living peacefully since then. The reference is accepted and the order of the learned Magistrate is set aside. Petition allowed.