2011 PLP 386 (MLD)

SYED AKHLAQ AHMAD, J.

Through this writ Muhammad Sohail Majeed/petitioner/defendant has directly challenged the impugned judgment and decree dated 15-6-2010 passed by the learned Judge Family Court Bhakkar with the prayer to set aside the same being illegal and without lawful authority.

2. Contents of the petition show that on 28-2-2009 the petitioner/ Muhammad Sohail Majeed/defendant and Mst. Bushra Rehman/ respondent No.1/plaintiff entered into marriage. Two months prior to the institution of the suit, he turned her out from his house after snatching everything from her. On 15-7-2009 she filed suit for dissolution of marriage on the basis of Khula, suit for recovery of dowry articles, suit for recovery of maintenance, suit for recovery of gold ornaments weighing 5-tola 7-masha and suit for recovery of dower amounting to Rs.50,000 against him. Petitioner contested the suit vide his written statement in which he controverted the averments made by respondent No. 1 in her plaint. Pre-trial reconciliation proceedings were held and resulted in failure. Out of the pleadings of the parties, the following issues were framed by the learned Judge Family Court vide order dated 3-3-2010. ISSUES: (i) Whether the plaintiff is entitled to the decree for dissolution of marriage as prayed for? OPP (ii) Whether the plaintiff is entitled to recover dowry articles or in alternate its value of Rs.29,900 and the same are in possession of the defendant? OPP (iii) Whether the plaintiff is entitled to recover maintenance allowance from the defendant. If so, at what rate and for what period? OPP (iv) Whether the plaintiff is entitled to recover gold ornaments weighing 5-tola 7-mashas or in the alternate its value of Rs.1,84,250/? OPP (v) Whether the plaintiff is entitled to recover dower amount of Rs.50,000? OPP (vi) Whether the plaintiff has no cause of action to file the instant suit? OPD (vii) Whether defendant is entitled to the decree for restitution of conjugal rights? OPD (viii) Relief.

3. Both the parties led their respective evidence. After hearing both the learned counsel for the parties, learned Judge Family Court vide impugned order dated 15-6-2010 decided issues Nos. 1 and 7 in favour of respondent No.1/plaintiff and against the petitioner/defendant by dissolving the marriage on the ground of Khula and directed respondent No. 1/plaintiff to pay Rs.500 as consideration to the petitioner/defendant. Issue No.2 of dowry was partially decided in favour of respondent No.1/plaintiff to the extent of recovery of Rs.25,000 in lieu of dowry articles mentioned in the list Ex.P-1. Issue No.3 regarding maintenance was decided in favour of respondent No.1/plaintiff holding her to be entitled to get maintenance from the petitioner/defendant from the date of institution of suit i.e. 15-7-2009 till the expiry of her Iddat @ Rs.1200 per month. Issue No. 4 of recovery of gold ornaments weighing 5-tola. 7-mashas was decided against the respondent No.1/plaintiff. Issue No.5 retarding recovery of dower was decided against respondent No.1/plaintiff. Issue No.6 about cause of action was decided against the petitioner/ defendant.

4. Learned counsel for the petitioner/defendant contends that the learned Judge Family Court committed illegalities and irregularities. His judgment is result of non-reading and mis-reading of evidence of the parties and non-appreciation of law and are liable to be set-aside. The petitioner/defendant is entitled for the return of dower amount of Rs.50,000 as well as restoration of other benefits by the respondent No.1/plaintiff in lieu of decree for dissolution of marriage on the basis of Khula. On the other hand, learned counsel for respondent No.1/plaintiff opposed this writ petition and strongly defended the impugned judgment and decree passed by the Judge Family Court.

5. I have heard the arguments of both the learned counsel for the parties and have also gone through the documents available on the file.

6. Section 14 of the West Pakistan Family Courts Act, 1964 reads as under:-- "

14. Appeal.

(1) 'Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable: (a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status as of a District Judge or an Additional District Judge; and (b) [to the District Court, in any other case.]

2. No appeal shall lie from a decree 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) for dower [or dowry] not exceeding rupees [thirty thousand];for maintenance of rupees [one thousand] or less per month. [(3) No appeal or revision shall lie against an interim order passed by a Family Court. (4) The appellate Court referred to in subsection (1) shall dispose of the appeal within a period of four months.]"

7. Without going into the merits of the case it is evident from above provisions of law that the petitioner/defendant had the remedy under the law to file appeal against the impugned judgment and decree, dated 15-6-2010 passed by the learned Judge Family Court Bhakkar before the District Judge Bhakkar but instead of availing his remedy, before the proper forum, he has directly challenged the same before this Court through writ. As the petitioner/defendant has not resorted to the legal course, so the writ petition being not maintainable is dismissed. (Muhammad Sharif v. Judge Family Court Bahawalpur and 3 others 2002 CLC 270 (Lahore) relied upon). H. B. T. /M-607/L Petition dismissed.