Mst. AZIZ FATIMA vs Syed MOHAMMAD KAZIM HUSSAIN AND ANOTHER
This matter arises from a petition for special leave to appeal challenging an order of the High Court which set aside a magistrate's notice for the recovery of arrears of maintenance. The core legal question is whether the enforcement of the West Pakistan Family Courts Act, 1964, deprived magistrates of jurisdiction over pending maintenance applications under section 488 of the Code of Criminal Procedure, rendering subsequent orders null and void. The Supreme Court held that the Family Courts Act, being procedural in nature, altered the forum and stripped the magistrate of jurisdiction in scheduled matters upon its enforcement, making any subsequent orders passed without jurisdiction a nullity in the eye of the law. The key principle laid down is that procedural changes affecting forums apply to pending proceedings, and orders passed by a court lacking jurisdiction are nullities that cannot be executed, leaving the aggrieved party to seek remedies before the proper Family Court.
- Does the West Pakistan Family Courts Act, 1964, affect pending proceedings under section 488 of the Code of Criminal Procedure, 1898?
- Does a magistrate lose jurisdiction to entertain or execute maintenance applications under section 488 of the Code of Criminal Procedure, 1898, once the Family Courts Act becomes applicable to an area?
- Can an order for arrears of maintenance passed by a magistrate without jurisdiction be challenged as a nullity?
- Section 488, Code of Criminal Procedure 1898
- Section 5, West Pakistan Family Courts Act 1964
- Section 20, West Pakistan Family Courts Act 1964
ORDER
1. WAHIDUDDIN AHMAD, J.-The petitioner filed an application under section 488, Cr. P. C. For her maintenance and for the maintenance of her children, Mst. Najma, Mst. Saleha, Mst. Jehan Ara and Syed Abid Hussain at the rate of Rs. 250 per month from the respondent in the Court of S. D. M., Mirpur Khas. During the pendency of the application, the provisions of West Pakistan Family Courts Act, 1964, were applied to the District of Tharparkar by notification dated the 21st February 1967. In spite of this, the above application proceeded before the Magistrate concerned and no objection was taken to the jurisdiction of the Court. On the 30th October 1967, the learned S. D. M. Granted maintenance to the petitioner at the rate of Rs. 150 per month. Respondent filed revision petition against this order in the Court of Sessions which was dismissed on the 31st July 1968. In this revision the respondent raised an objection about the jurisdiction of the Magistrate to grant maintenance.
2. This order was challenged in the High Court in further revision. In the revision, no objection was taken about the jurisdiction of the Magistrate to grant maintenance. The revision was summarily dismissed on the 23rd September 1968.
3. After the dismissal of the revision application, the learned S. D. M. Issued notice on the 19th May 1969, calling upon the respondent to deposit the sum of Rs. 3,903.98 as arrears of maintenance. The respondent again challenged this order in the Sessions Court on the revisional side and contended that the order of the S. D. M. Was without jurisdiction. This application was dis--missed on the 17th April 1970. The matter was again taken to the High Court on the revisional side which was admitted for regular hearing. A learned Single Judge of the High Court in Criminal Revision No. 62 of 1970, has come to the conclusion that the West Pakistan Family Courts Act, 1964, being procedural ill nature also affected the pending proceedings and the Magistrate lost jurisdiction under section 488, Cr. P.
4. C. In respect of scheduled matters from the date the Family Courts Act was enforced. It was, therefore, held that the, S. D. M. Could not issue notice calling upon the applicant to pay the arrears of maintenance. This order is being challenged in this petition for special leave to appeal.
5. Mr. Riaz Hashmi, learned counsel for the petitioner, has contended that the view of the High Court is based on the decision of the Supreme Court in the case of Adnan Afzal v. Capt. Sher Afzal (PLD 1969SC 187). In that decision, it was held that sections 5 and 20 of the West Pakistan Family Courts Act, 1964, vis-a-vis, section 488, Cr. P. C., has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. The learned counsel contended that the decision of the Supreme Court does not affect past and closed transaction even, if the impugned order is found without jurisdiction. The contention of the learned counsel has riot impressed us. It is not disputed that according to the decision of this Court in the 'above-mentioned case, the Magistrate has lost jurisdiction under section 488, Cr. P. C. In respect of scheduled matters from the date the Family Courts Act was enforced. Thus it is quite clear that the order of the learned S. D. M., Mirpurkhas is without jurisdiction and a nullity in the eye of law. In these circumstances, the High Court was perfectly justified in setting aside the order of the S. D. M. Dated the 19 May 1969, calling upon the respondent to deposit the arrears of maintenance. This was a fresh order and could be challenged on the ground that it was passed without jurisdiction. In these circumstances, there is no force in the petition which is dismissed. The proper remedy for the petitioner is to move the Family Court for the redress of her grievance which we hope will be disposed of as quickly as possible.