1995 PLP 1945 (CLC)

SARDAR SAID MUHAMMAD KHAN, C.J: =‑This appeal has been directed against the judgment and decree of the Shariat Court dated 11‑4‑1995, whereby accepting the appeal filed by respondent No.1, the judgment and decree for dissolution of marriage passed in her favour by the Family Court were amended. The brief facts giving rise to the present appeal are that respondent No.1 filed a suit for dissolution of marriage whereas appellant, herein, filed a suit for the restitution of conjugal rights. Both the suits were consolidated. The suit filed by the respondent was decreed by the trial Court on the basis of `Khula' on payment of Rs.26,000, the price of the ornaments which were allegedly given to the respondent in dower. Mst. Zareena Begum filed an appeal to the Shariat Court on the ground that issue regarding cruelty was decided in her favour and, as such, she was entitled to the decree for dissolution of marriage on the basis of cruelty and not only on the basis of alternate plea of `Khula'. The learned Judge in the Shariat Court accepted the appeal and dissolved the marriage on the basis of, cruelty instead of on payment of `Khula' as was done by the trial Court. The present appeal, by leave, has been preferred against the decree of the Shariat Court on the ground that under section 14 of the Azad Jammu and Kashmir Family Courts Act, 1993, no appeal was competent before the Shariat Court and, as such, the judgment of the Shariat Court is without jurisdiction. We have heard the arguments and persued the file. Ch. Muhammad Riaz Alam, Advocate, the learned counsel for the appellant, has argued that under subsection (2)(a) of section 14 of the Family Courts Act, 1993, no appeal lies from a decree passed by a Family Court for dissolution of marriage, except that the case falls under clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939. The learned counsel has vehemently argued that expression "for the dissolution of marriage" would apply both to the husband and wife and as a decree for dissolution of marriage was passed in favour of the respondent on the basis of `Khula', she was not competent to prefer an appeal to the Shariat Court. In reply, Ch. Muhammad Riaz Inqalabi, Advocate, the learned counsel for the respondents, has argued that subsection (2)(a) of section 14 of the Family Courts Act, 1993 only bars appeal by husband if the dissolution of marriage has been ordered by the Family Court. In other words, the learned counsel maintained that even if a decree for dissolution was passed in favour of respondent on the basis of `Khula', she is not debarred from appealing against it on the ground that her suit should have been decreed on the basis of `cruelty' because she only prayed for a decree on the basis of `Khula' in alternative. The learned counsel further maintained that the object behind the aforesaid provision is to curtail the duration of litigation by debarring the husband from appealing where a decree for dissolution is passed and not to debar wife seeking a modification in the decree for dissolution of marriage passed in her favour. We have given our due consideration to the arguments raised at Bar. Vor the sake of convenience, clause (a), subsection (2) of section 14 of the Family Courts Act is reproduced as under: "14. (1). ....................................... (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 (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939; (b) .................................................. (c) ....................................... (3) .................................................. (4) .................................................. (5) .................................................. It is evident that the primary object of subsection (2)(a) of section 14 is to debar the husband from challenging a decree for the dissolution of marriage except in case of eventuality envisaged therein. In the instant case, the decree for dissolution of marriage has been passed in favour of respondent on the basis of `Khula'. The respondent did not challenge the decree for dissolution, rather her grievance is that the decree for the dissolution of her marriage should have been passed in her favour on the basis of `cruelty' because the relevant issue was decided by the Family Court in her favour. Thus, we are of the view that the Shariat Court, in the instant case, was not debarred from hearing the appeal which was filed by the respondent seeking the dissolution of her marriage on the ground of `cruelty'. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with no order as to the costs. AA./85/SC (AJ&K) Appeal dismissed.