1986 PLP 464 (MLD)

KHALIL‑UR‑REHMAN KHAN, J. ‑.This Intra‑Court appeal under section 3 of the Law Reforms Ordinance, 1972, was directed against the judgment, dated 6‑7‑1981 of a learned Single Judge of this Court whereby the constitutional petition filed by the appellant to assail the decree of dissolution of marriage, dated 3‑11‑1979 passed by the learned Judge Family Court was dismissed. The learned Judge Family Court had dissolved the marriage on the basis of Khula' and the question of "return of benefits" was decided in the terms that the appellant husband was found entitled to receive from the respondent the following sums:‑

(i) Rs.12,000 i.e. the price of a Diamond ring, and (ii) Rs. 20,000 for retaining her half share in House No. 907‑N, Sammanabad, Lahore. The decree of dissolution of marriage alongwith the aforenoted decision as to return of benefits passed by learned Judge Family Court was upheld by the learned Single Judge in the constitutional jurisdiction.

2. This appeal, as regards the judgment of the learned Single Judge upholding the decree of dissolution of marriage by way of Khula' was dismissed but as regards return of benefits derived by the respondents, the appeal was admitted to hearing. This was, vide order, dated 17‑11‑1981 of a Division Bench of this Court. The appellant challenged this order of the Division Bench by filing Civil Petition for Leave to Appeal No. 114 of 1982 but leave was refused by the Supreme Court, vide judgment, dated 8‑2‑1982 See P L D 1983 S C

169. The relevant observation made by the learned Judges of the Supreme Court may be quoted:‑-- "As regards the third submission of the learned counsel for the petitioner that dissolution of marriage by Khula' cannot stand whilst an enquiry on facts with regard to the terms on which it is to be granted is yet to take place, it appears plausible but is not quite sound. It was held in the case of Moonshee Buzul‑ul- Rehman v. Luteefutoon Nisa (8 Moore's Indian Appeals 379) than non‑payment of stipulated, consideration for Khula' does not invalidate the dissolution of marriage by Khula'. Once the Family Court came to the conclusion that the parties cannot remain within the limits of God and the dissolution of marriage by Khula' must take place, the inquiry into the terms on which such dissolution shall take place does not affect the conclusion but only creates civil liabilities with regard to the benefits to be returned by the wife to the husband and not affect tae dissolution itself." . In view of the matter above, learned counsel for the respondent raised objection to the maintainability of the Intra‑Court Appeal. He argued that as the decision qua the benefits derived is appealable under section 14 of the Family Courts Act, Intra‑Court Appeal does not lie and the same is liable to be dismissed on this score alone.

3. We have heard the learned counsel for the parties. Mr. D.M. Awan, learned counsel for the appellant argued that the decree of dissolution of marriage by Khula' cannot stand when the inquiry with regard to terms on which it is to be granted is incomplete and when the determination of the benefits derived is yet to be gone into. According to him Decree of Dissolution of Marriage by way of Khula' is a decree of composite nature and the matter of return of benefits cannot be separated from the matter of dissolution of marriage and as decree for dissolution of marriage is not appealable under section 14(2) of the Family Courts Act, 1965, Intra‑Court Appeal under section 3 of the Law Reforms Ordinance, 1972, is maintainable. Learned counsel for the respondent, on the other hand, in support of his objection relied on Mst. Rushda Zareen v. Muhammad Saleh P L D 1976 Lah. 1327; Bashira Bibi v. Muhammad Rafiq 1982 C L C 1200; Muhammad Shafi v. District Judge 1982 C L C 2057 and on the observations of the Supreme Court made in the leave petition filed by the appellant. These observations have been quoted in one of the paras. above.

4. We have considered the respective submissions of the parties. In view of the observations of the Supreme Court noted above, that once the Family Court comes to the conclusion that the parties cannot remain within the limits of God, dissolution of marriage by Khula' must take place and the inquiry into the terms at which such dissolution shall take place does not affect the conclusion but only creates civil liabilities with regard to the benefits to be determined by the wife to the husband and not affect the dissolution itself, it is apparent that the decree of dissolution of marriage and the decision as to the terms on which dissolution is to take place or the determination of the question of benefits is to be treated separately. The judgment of the Judge Family Court so far as it decrees the dissolution of marriage is not appealable in view of the provisions contained in subsection (2) of section 14 of the Family Courts Act, but the judgment containing the decision as regards the terms on which the dissolution is granted or the determination of the benefits shall be appealable as there is no such prohibition in subsection (2) of section

14. Section 14 of the Family Courts Act provides for appeals against decisions as also against decrees unless a decree falls within the prohibition contained in subsection (2) thereof. It follows, therefore, that appeal against such a decision would be competent under section 14(1) and we were told that such an appeal was in fact filed by the respondent against the decision as regards return of benefits made by the learned Family Judge and. the said appeal is still pending. We have, therefore, no hesitation in holding that the present appeal is not maintainable in view of the provisions contained in section 3 of the Law Reforms Ordinance, 1972. As the appeal is bound to fail on the question of preliminary objection, we have, therefore, not gone into the respective submissions of the parties on merits lest it may affect pre-judicely the disposal of the appeal pending before the District Court. The appeal, therefore, fails and is dismissed with costs. A.A. Appeal dismissed.