Army Officers are not exempted from Family Courts

PLJ 2011 Lahore 834 [Rawalpindi Bench Rawalpindi] Present: Ijaz Ahmad, J. NAJEEB AHMAD ABBASI--Petitioner versus M.A.G. etc.--Respondents W.P. No. 4957 of 2010, decided on 31.1.2011. Constitution of Pakistan, 1973-- ----Art. 199--Criminal Procedure Code, (V of 1898), S. 488--Pakistan Army Act, 1952, Ss. 65 & & 171--Constitutional petition--Exemption claimed by petitioner through Pakistan Army Act, was not available to him--Maintenance of wife or child, legitimate or illegitimate may be deducted from his pay and allowances----Salary of petitioner was ordered to be deducted and to be attached for satisfaction of decree--Maintenance of wife and children--Suit for payment of maintenance allowance, recovery of dower amount and dowry articles were decreed--Challenge to--Validity--Although salary of a person serving Armed Forces had been saved from seizure or attachment, but such saving comes into play in a case where direction was issued by Civil Court, Revenue Court or revenue office in satisfaction of a decree--It did not cover a decree passed and direction issued by Family Court--Salary and allowances of an officer were not saved in a matter that related to maintenance of wife or child of such an officer--Petition was dismissed. [P. 836] A Mr. Muhammad Fazil Siddiqui, Advocate for Petitioner. Mr. Ateeq-ur-Rehman Kiani, Standing Counsel for Respondents. Date of hearing: 31.1.2011. Order The suit for payment of maintenance allowance, recovery of dower amount and dowry articles, was instituted against the petitioner. It was decreed.

2. Through this constitutional petition, the petitioner impugns the orders dated 13.10.2009 and 03.11.2010, passed by the learned Executing Court/Guardian Judge-II and Guardian Judge-Ill Lahore, respectively. Through the first order 50% basic salary of the petitioner was ordered to be deducted; while by the second order, 50% of the total salary of the petitioner was ordered to be attached for satisfaction of the decree.

3. It is contended by the learned counsel for the petitioner that under Section 171 of the Pakistan Army Act, 1952, pay and allowances or any part thereof of any person in the services of the Armed Forces may not be seized or attached by direction of any civil or revenue Court or any revenue officer, in satisfaction of any decree passed against him. He further argues that as for the petitioner's objection petition sub judice before the executing Court is concerned, the same relates to its future enhancement, so, its subject matter and the one in this writ petition are not common.

4. On the other hand, learned Standing Counsel, appearing on behalf of the respondents contends that the decree-holder has not been impleaded in the petition; that the petitioner has already submitted an objection petition before the learned Executing Court, which is yet pending and, thus, he cannot avail simultaneous remedies before this Court; that the restraint contained in Section 171 of the Pakistan Army Act, 1952, is restricted to the seizure or attachment ordered by a civil or revenue Court or revenue officer and that a family Court, especially, constituted under Family Court Act, 1964, has not been mentioned therein, therefore, the exemption claimed by the petitioner through the said law is not available to him.

5. I have heard learned counsel for the parties and have also perused the record. In order to better understand the arguments advanced by the learned counsel for the parties, it would be in the fitness of the things to reproduce Section 2(1)(b) of Family Courts Act, 1964, which reads as follows: "Family Court" means a Court constituted under this Act." Thus, the Family Court is a special Court independent of a Civil Court mentioned under Section 3 of the Civil Courts Ordinance, 1962. Besides all that, under Paragraph No. 1(h) of Section 65 of the Pakistan Army Act, 1952, any sum which a criminal Court or the (Federal Government) orders him to pay for the maintenance of his wife or his child, legitimate or illegitimate, may be deducted from his pay and allowances. Further, according to Section 488 of the Cr.P.C. if any person having sufficient means neglects or refuses to maintain his wife or his child unable to maintain itself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or child. Although the salary of a person serving the Armed Forces has been saved from seizure or attachment, but this saving comes into play in a case where the direction is issued by a Civil Court, revenue Court or revenue office in satisfaction of a decree. In my humble view, it does not cover a decree passed and a direction issued by a family Court. Moreover, the reading of the Section 488 of Cr.P.C. and Section 65 of the Pakistan Army Act, 1964, makes it clear that the salary and allowances of an officer are not saved in a matter that relates to the maintenance of wife or child of such an officer.

6. For what has been discussed above, I have come to conclusion that the exemptions to the salaries etc. of a person serving the Armed Forces of Pakistan as postulated under Section 171 of the Act ibid is not available in case of a decree passed by the Family Court. This petition has no force. It is dismissed. (R.A.) Petition dismissed.