PLJ 2012 Peshawar 118 (DB)
Present: Shah Jehan Khan and Syed Sajjad Hassan Shah, JJ.
MISKEEN AHAMD--Petitioner
versus
Mst. SAJIDA and 2 others--Respondents
W.P. No. 1974 of 2010, decided on 12.9.2011.
West Pakistan Family Court Act, 1964 (XXXV of 1964)--
----S. 13--Constitution of Pakistan, 1973, Art. 199--Decree holder filed a suit for recovery of past maintenance allowance--Suit was decreed--Order was re-called on ground that maintenance awarded to wife could not be attached in order to compel to obey decree of conjugal rights--Family Court while executing decree was not bound by any procedure but could direct recovery of decretal amount--Validity--Family Court vested with exclusive jurisdiction to execute money decree for which procedure was provided which regulated family matters and possibilities of amicable settlement and made easier access to justice and course of justice--Re-calling of the order, Court can exercise such power in interest of justice in cases where order passed was patently illegal and unlawful--Executing Court had ample power to vary, modify and rescind the order by means of the order--Even, executing Court had no jurisdiction to attach decree for recovery of maintenance allowance to compel wife to obey term of decree of conjugal rights--Petition was dismissed. [Pp. 121, 122 & 123] A, E, F & G
West Pakistan Family Court Act, 1964 (XXXV of 1964)--
-----S. 17--Civil Procedure Code, (V of 1908), Ss. 10 & 11--Evidence Act, Scope--Intention of law--Power of executing Court--Validity--Family matters were to be decided without having resorted provisions in Evidence Act and CPC except Ss. 10 & 11 of CPC, because S. 17 of Family Courts Act, 1964 excluded the application of laws in proceedings of Family Court that Family Courts were given exclusive jurisdiction under Act--During course of execution, Family Court being executing Court can summon judgment debtor to pay maintenance allowance and on his refusal to pay Court can proceed and adopt coercive measure. [P. 121] B
Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R. 33--Executing decree while executing the decree of conjugal rights--Duty of husband to maintain his wife--Recovery of maintenance allowance--Validity--Executing Court while executing decree of conjugal rights could not attach decree passed for recovery of maintenance allowance in favor of wife--It aws legal duty of husband to maintain his wife as per provision of law--Refusal of wife to reside with her husband cannot availed if it is justified reasonable cause--Decree for past maintenance had been passed by Family Court as wife was found to have entitled for recovery of same because of reason that husband had contracted second marriage--Wife was legally justified to live separately and husband was bound to pay maintenance allowance to his first wife. [P. 121] C & D
General Clauses Act, 1897--
----S. 20--Modification of order--Power of executing Court--Executing Court had power to vary, modify and rescind order by means of the impugned order--Executing Court had no jurisdiction to attach decree for recovery of maintenance allowance to compel wife to obey terms of decree of conjugal rights. [P. 122] F
Mr. Naqibullah Khan Khattak, Advocate for Petitioner.
Mr. Rehmanullah Khan, Advocate for Respondent No. 1.
Date of hearing: 12.9.2011.
Judgment
Syed Sajjad Hassan Shah, J.--This petition calls in question the judgment and order dated 12.4.2010 passed by learned Additional District Judge-IV, Swabi, whereby the revision petition filed by the petitioner against the judgment and order dated 6.1.2010 of the Executing Court in a Case No. 127/10, was dismissed.
2. The brief facts of the case are that Mst. Sajida, the respondent-decree holder filed a suit for recovery of past maintenance allowance at the rate of Rs.2000/- per month for the period of 10-1/2 months and onward. The suit was decreed in favour of respondent-plaintiff/decree-holder. However, the petitioner/judgment debtor-husband has also agitated the ground for the restitution of conjugal rights in his written statement, which was also decreed by the same judgment dated 14.11.2007 in his favour.
3. Both the parties have filed their respective execution petitions to execute the said decree. The learned Executing Court on 7.12.2009 attached the amount decreed in favour of respondent-wife as her maintenance allowance against the petitioner-husband provided she satisfies the decree passed for restitution of conjugal rights. However, the order was re-called on 6.2.2010 on the ground that the maintenance awarded to the wife-respondent cannot be attached in order to compel her to obey the decree of conjugal rights passed in favour of her husband, therefore, the petitioner-husband was directed to first pay the decretal amount i.e. Rs.72000/-. The petitioner being aggrieved of the said order assailed the same by filing an appeal which was dismissed by learned Appellate Court, hence the instant petition.
4. Learned counsel for the petitioner contended that once the learned trial Court has attached the decretal amount during the course of execution of decree. It has no jurisdiction to detach / recall the order for payment of maintenance allowance to the decree holder by the judgment-debtor, unless the execution of decree for restitution of conjugal rights is not satisfied. He further contended that the respondent-decree holder has no legal right to file the execution for the enforcement of the execution of decree for maintenance allowance, as she has failed to obey the decree passed for restitution of conjugal rights.
5. Arguments heard and record perused.
6. As envisaged in Section 13 of the West Pakistan Family Court Act, that how to enforce the decrees passed by the Family Court, the provision is quoted as under:--
"Section-13...(1) .......................
(2) ....................................
(3) Where a decree relates to the payment of money and the decretal amount is not paid within time specified by the Court, the same shall, if the Court so directs be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder.
(4) The decree shall be executed by the Court passing it or by such other Civil Court as the District Judge may, by special or general order, direct.
7. The above noted provision of Section 13 of Act ibid, shows that the learned Judge Family Court while executing the decree is not bound by any particular procedure, but can direct the recovery of the decretal amount as laid down in sub-section (3) of Section 13 ibid. Obviously that the Family Court vested with the exclusive jurisdiction to execute the money decree for which procedure is provided therein, which regulates the Family matters and possibilities of amicable settlement and also make easier the access to justice and the course of justice. The intention of law makers can easily be perceived that the family matters are to be decided without having resorted the provisions contained in the Evidence Act and CPC except Section-10 & 11 CPC, because Section-17 of the Family Courts Act, 1964 excluded the application of above mentioned laws in the proceedings of Family Court and the reason is that the Family Courts are given exclusive jurisdiction under the Act. Thus, during the course of execution, the Family Court being Executing Court can summon the judgment-debtor to pay maintenance allowance and on his refusal to pay, the Court can proceed and adopt coercive measure.
8. The necessary corollary would be that under the provision of Order-XXI, Rule-33 CPC, the learned Executing Court while executing the decree of conjugal rights can not attach the decree passed for recovery of maintenance allowance in favour of respondent-wife. As it is the legal duty of the petitioner-husband to maintain his wife as per the provision of law. Refusal of wife to reside with her husband cannot be availed if it is justified by the reasonable cause. Here the decree for past maintenance has been passed by the Family Court as the wife was found to have entitled for the recovery of the same because of the reason that the husband has contracted the second marriage. Thus, she is legally justified to live separately and the husband is bound to pay the maintenance allowance to his first wife. Reliance placed on a case "Mian Arif Mehmood vs. Mst.Tanvir Fatima and another" PLD 2004 Lahore-316. The relevant para is reproduced hereunder for ready reference:
"The next submission of the learned counsel for the petitioner that Respondent No. 1 having herself chosen to stay away from the petitioner was not entitled to maintenance has not impressed me. It has come on record that the petitioner was already having a wife and children from her. The respondent was left in the lurch, she knew nothing with regard to his married status as well as about his exact age. The petitioner must have come to his own conclusion in not insisting upon incompatible parties... two ladies jealous of each other ...to live together and thereby making life a hell not only for them but for him as well. They were kept apart, not allowing them to know each other or even their abode. Therefore, the petitioner should have no grouse against the respondent as no one could blame her because the petitioner's first wife was probably a virago and for that reason he himself had to stay away from her. Therefore, in the peculiar facts and circumstances of the instant case, it cannot be held that the respondent was altogether at fault and had disentitled herself by living apart from the husband. Times have changed. Hardships which wives were prepared to endure in the past, they are not prepared to tolerate now."
9. Similar rule has been reiterated in 1990 CLC 297.
10. As far as the recalling/modification of impugned order is concerned, the Court can exercise such power in the interest of justice in cases where order passed is patently illegal and unlawful. In this regard, the provision of Section-20 of the General Clauses Act, 1897 can be pressed into service. For convenience sake the provision of Section 20 is quoted as under:
"Section-20. Where, by any West Pakistan Act, a power to issue notification, orders, rules, scheme, form or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind, any notifications, orders, rules, scheme, form, bye-laws so issued."
11. Thus, the learned Executing Court has ample power to vary, modify and rescind the order dated 7.12.2009 by means of the impugned order. Even otherwise, the learned Executing Court has no jurisdiction to attach the decree for recovery of maintenance allowance to compel the wife to obey the terms of decree of conjugal rights.
12. Both the learned Courts below have lawfully and justly reached to the conclusion that the plea of the petitioner/judgment-debtor having no force, as such, it was not prevailed and the same was rejected. This Court has sparingly to interfere in the concurrent findings of the learned Courts below rendered after evaluating the entire material on record.
13. In view of the above discussion, judgment and decree passed by both the Courts below are hereby maintained as not suffering from any legal or jurisdictional error. This petition being devoid of force is hereby dismissed.
(R.A.) Petition dismissed
Present: Shah Jehan Khan and Syed Sajjad Hassan Shah, JJ.
MISKEEN AHAMD--Petitioner
versus
Mst. SAJIDA and 2 others--Respondents
W.P. No. 1974 of 2010, decided on 12.9.2011.
West Pakistan Family Court Act, 1964 (XXXV of 1964)--
----S. 13--Constitution of Pakistan, 1973, Art. 199--Decree holder filed a suit for recovery of past maintenance allowance--Suit was decreed--Order was re-called on ground that maintenance awarded to wife could not be attached in order to compel to obey decree of conjugal rights--Family Court while executing decree was not bound by any procedure but could direct recovery of decretal amount--Validity--Family Court vested with exclusive jurisdiction to execute money decree for which procedure was provided which regulated family matters and possibilities of amicable settlement and made easier access to justice and course of justice--Re-calling of the order, Court can exercise such power in interest of justice in cases where order passed was patently illegal and unlawful--Executing Court had ample power to vary, modify and rescind the order by means of the order--Even, executing Court had no jurisdiction to attach decree for recovery of maintenance allowance to compel wife to obey term of decree of conjugal rights--Petition was dismissed. [Pp. 121, 122 & 123] A, E, F & G
West Pakistan Family Court Act, 1964 (XXXV of 1964)--
-----S. 17--Civil Procedure Code, (V of 1908), Ss. 10 & 11--Evidence Act, Scope--Intention of law--Power of executing Court--Validity--Family matters were to be decided without having resorted provisions in Evidence Act and CPC except Ss. 10 & 11 of CPC, because S. 17 of Family Courts Act, 1964 excluded the application of laws in proceedings of Family Court that Family Courts were given exclusive jurisdiction under Act--During course of execution, Family Court being executing Court can summon judgment debtor to pay maintenance allowance and on his refusal to pay Court can proceed and adopt coercive measure. [P. 121] B
Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R. 33--Executing decree while executing the decree of conjugal rights--Duty of husband to maintain his wife--Recovery of maintenance allowance--Validity--Executing Court while executing decree of conjugal rights could not attach decree passed for recovery of maintenance allowance in favor of wife--It aws legal duty of husband to maintain his wife as per provision of law--Refusal of wife to reside with her husband cannot availed if it is justified reasonable cause--Decree for past maintenance had been passed by Family Court as wife was found to have entitled for recovery of same because of reason that husband had contracted second marriage--Wife was legally justified to live separately and husband was bound to pay maintenance allowance to his first wife. [P. 121] C & D
General Clauses Act, 1897--
----S. 20--Modification of order--Power of executing Court--Executing Court had power to vary, modify and rescind order by means of the impugned order--Executing Court had no jurisdiction to attach decree for recovery of maintenance allowance to compel wife to obey terms of decree of conjugal rights. [P. 122] F
Mr. Naqibullah Khan Khattak, Advocate for Petitioner.
Mr. Rehmanullah Khan, Advocate for Respondent No. 1.
Date of hearing: 12.9.2011.
Judgment
Syed Sajjad Hassan Shah, J.--This petition calls in question the judgment and order dated 12.4.2010 passed by learned Additional District Judge-IV, Swabi, whereby the revision petition filed by the petitioner against the judgment and order dated 6.1.2010 of the Executing Court in a Case No. 127/10, was dismissed.
2. The brief facts of the case are that Mst. Sajida, the respondent-decree holder filed a suit for recovery of past maintenance allowance at the rate of Rs.2000/- per month for the period of 10-1/2 months and onward. The suit was decreed in favour of respondent-plaintiff/decree-holder. However, the petitioner/judgment debtor-husband has also agitated the ground for the restitution of conjugal rights in his written statement, which was also decreed by the same judgment dated 14.11.2007 in his favour.
3. Both the parties have filed their respective execution petitions to execute the said decree. The learned Executing Court on 7.12.2009 attached the amount decreed in favour of respondent-wife as her maintenance allowance against the petitioner-husband provided she satisfies the decree passed for restitution of conjugal rights. However, the order was re-called on 6.2.2010 on the ground that the maintenance awarded to the wife-respondent cannot be attached in order to compel her to obey the decree of conjugal rights passed in favour of her husband, therefore, the petitioner-husband was directed to first pay the decretal amount i.e. Rs.72000/-. The petitioner being aggrieved of the said order assailed the same by filing an appeal which was dismissed by learned Appellate Court, hence the instant petition.
4. Learned counsel for the petitioner contended that once the learned trial Court has attached the decretal amount during the course of execution of decree. It has no jurisdiction to detach / recall the order for payment of maintenance allowance to the decree holder by the judgment-debtor, unless the execution of decree for restitution of conjugal rights is not satisfied. He further contended that the respondent-decree holder has no legal right to file the execution for the enforcement of the execution of decree for maintenance allowance, as she has failed to obey the decree passed for restitution of conjugal rights.
5. Arguments heard and record perused.
6. As envisaged in Section 13 of the West Pakistan Family Court Act, that how to enforce the decrees passed by the Family Court, the provision is quoted as under:--
"Section-13...(1) .......................
(2) ....................................
(3) Where a decree relates to the payment of money and the decretal amount is not paid within time specified by the Court, the same shall, if the Court so directs be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder.
(4) The decree shall be executed by the Court passing it or by such other Civil Court as the District Judge may, by special or general order, direct.
7. The above noted provision of Section 13 of Act ibid, shows that the learned Judge Family Court while executing the decree is not bound by any particular procedure, but can direct the recovery of the decretal amount as laid down in sub-section (3) of Section 13 ibid. Obviously that the Family Court vested with the exclusive jurisdiction to execute the money decree for which procedure is provided therein, which regulates the Family matters and possibilities of amicable settlement and also make easier the access to justice and the course of justice. The intention of law makers can easily be perceived that the family matters are to be decided without having resorted the provisions contained in the Evidence Act and CPC except Section-10 & 11 CPC, because Section-17 of the Family Courts Act, 1964 excluded the application of above mentioned laws in the proceedings of Family Court and the reason is that the Family Courts are given exclusive jurisdiction under the Act. Thus, during the course of execution, the Family Court being Executing Court can summon the judgment-debtor to pay maintenance allowance and on his refusal to pay, the Court can proceed and adopt coercive measure.
8. The necessary corollary would be that under the provision of Order-XXI, Rule-33 CPC, the learned Executing Court while executing the decree of conjugal rights can not attach the decree passed for recovery of maintenance allowance in favour of respondent-wife. As it is the legal duty of the petitioner-husband to maintain his wife as per the provision of law. Refusal of wife to reside with her husband cannot be availed if it is justified by the reasonable cause. Here the decree for past maintenance has been passed by the Family Court as the wife was found to have entitled for the recovery of the same because of the reason that the husband has contracted the second marriage. Thus, she is legally justified to live separately and the husband is bound to pay the maintenance allowance to his first wife. Reliance placed on a case "Mian Arif Mehmood vs. Mst.Tanvir Fatima and another" PLD 2004 Lahore-316. The relevant para is reproduced hereunder for ready reference:
"The next submission of the learned counsel for the petitioner that Respondent No. 1 having herself chosen to stay away from the petitioner was not entitled to maintenance has not impressed me. It has come on record that the petitioner was already having a wife and children from her. The respondent was left in the lurch, she knew nothing with regard to his married status as well as about his exact age. The petitioner must have come to his own conclusion in not insisting upon incompatible parties... two ladies jealous of each other ...to live together and thereby making life a hell not only for them but for him as well. They were kept apart, not allowing them to know each other or even their abode. Therefore, the petitioner should have no grouse against the respondent as no one could blame her because the petitioner's first wife was probably a virago and for that reason he himself had to stay away from her. Therefore, in the peculiar facts and circumstances of the instant case, it cannot be held that the respondent was altogether at fault and had disentitled herself by living apart from the husband. Times have changed. Hardships which wives were prepared to endure in the past, they are not prepared to tolerate now."
9. Similar rule has been reiterated in 1990 CLC 297.
10. As far as the recalling/modification of impugned order is concerned, the Court can exercise such power in the interest of justice in cases where order passed is patently illegal and unlawful. In this regard, the provision of Section-20 of the General Clauses Act, 1897 can be pressed into service. For convenience sake the provision of Section 20 is quoted as under:
"Section-20. Where, by any West Pakistan Act, a power to issue notification, orders, rules, scheme, form or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind, any notifications, orders, rules, scheme, form, bye-laws so issued."
11. Thus, the learned Executing Court has ample power to vary, modify and rescind the order dated 7.12.2009 by means of the impugned order. Even otherwise, the learned Executing Court has no jurisdiction to attach the decree for recovery of maintenance allowance to compel the wife to obey the terms of decree of conjugal rights.
12. Both the learned Courts below have lawfully and justly reached to the conclusion that the plea of the petitioner/judgment-debtor having no force, as such, it was not prevailed and the same was rejected. This Court has sparingly to interfere in the concurrent findings of the learned Courts below rendered after evaluating the entire material on record.
13. In view of the above discussion, judgment and decree passed by both the Courts below are hereby maintained as not suffering from any legal or jurisdictional error. This petition being devoid of force is hereby dismissed.
(R.A.) Petition dismissed
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