19797 PLP 1787 (CLC)

On 12th of November, 1996 the appellant filed a writ petition in the High Court in which he prayed that the provision of law which barred appeal against decree for dissolution of marriage may be declared as void on the basis of being inconsistent with Fundamental Right No.15 (Equality of State Subjects) and as a consequence thereof the judgment delivered by the Shariat Court may also be quashed. It was consequently prayed that a direction may be issued to the Shariat Court to re‑hear the appeal. It was stated in the writ petition that under the Family Courts Act a wife is entitled to file appeal if her suit for dissolution of marriage is dismissed, but a husband is prohibited from filing an appeal if marriage is dissolved. It was claimed in the writ petition that this provision is ex facie discriminatory. The High Court has dismissed the writ petition in limine: The view taken by the High Court may be reproduced: "

3. Under section 46(3) of the Interim Constitution a Court shall have such jurisdiction as is conferred upon it by law and no Court shall have any jurisdiction which is not conferred upon it by this Act or by or under any other law. 4 The Courts are created by the Statute of the Assembly and have to exercise such jurisdiction as is conferred upon them. In view of section 46(3) of the Interim Constitution, the jurisdiction not conferred upon the Courts cannot be considered to be violative of the Constitution or any fundamental right. " Section 14 of the Azad Jammu and Kashmir Family Courts Act deals with filing of the appeals. Subsection (1) lays down that a decision or decree passed by a Family Court shall be appealable to the Azad Jammu and Kashmir Shariat Court but subsection (2) contains the following overriding provision to the contrary: "(2) No appeal shall lie from a decree passed by a Family Court‑‑ (a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (b) (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939; As argued by the learned counsel of the appellant, Sardar Rafique Mahmood Khan, a combined reading of subsections (1) and (2) shows that if the judgment of the Family Court is against a wife she has been given the right to file appeal before the Shariat Court, but a husband cannot file appeal to the Shariat Court if the judgment ~ is against him. It is argued by Sardar Rafique Mahmood Khan that the relevant part of subsection (2) is violative of Fundamental Right No.15, which lays down that all State Subjects are equal before law and are entitled to equal protection of law. The learned counsel submitted that it was a law point of public importance and the writ petition; filed by the appellant should have been admitted to regular hearing so that an authoritative judgment could be delivered. He also vehemently contended that the reasons recorded by the High Court while dismissing the writ petition in limine are not legally sustainable, and in fact do not have nexus to the points agitated before the High Court. The appeal is opposed by Mr. Muhammad Arif Khan, the learned counsel for respondent No.4 Mst. Shahina Begum, on the ground that reasonable classification has been accepted to be permissible by this Court as well as the Supreme Court of Pakistan. He contended that women form a class by themselves and the impugned provision of law does not offend Fundamental Right No.15. Mr. Muhammad Arif Khan also raised the point that, after deducting time consumed in the disposal of the appeal before the Shariat Court, which was not maintainable, the writ petition was hit by the doctrine of laches. In our view the point raised by the appellant is a question of law of public importance which has not so far been decided by this Court or the Azad Jammu and Kashmir High Court. In fact no judgment from Pakistan jurisdiction has been brought to our notice in which this point has been decided one way or the other. Therefore, the writ petition should have been admitted for regular hearing. Consequently we accept the appeal and set aside the order under appeal. We were inclined to decide the law point involved in the case but are unable to do so because of the fact that the writ petition was dismissed in limine which means that the stand point of the respondents is not on the record. Therefore, the writ petition is admitted for regular hearing and the case is remanded for disposal in accordance with law. In order to expedite the matter the parties are directed to appear before the Registrar, High Court at Muzaffarabad on 5th of April. On that date respondents will file their written statements as well as affidavits etc. C.M.S./191/SC(AJ&K) Appeal accepted