1989 PLP 466 (CLC)

(3) Whether the defendant has failed to perform marital obligations without any just excuse for the last 4 years? OPP. (4) Whether the defendant has misappropriated ornaments and clothes belonging to the plaintiff? OPP. (5) Whether the plaintiff is entitled to a decree for dissolution of marriage on the ground of Khula? If so, on what terms and conditions? OPP (6) Whether any benefit was derived by the plaintiff from the defendant under marriage? If so, whether the plaintiff is entitled to return the same? OPP (7) Relief. By this judgment dated 6‑6‑1985, the learned Judge Family Court, Khushab decided issues Nos. 1, 2 and 3 in favour of the respondent and recorded findings in favour of the appellant as regards issues Nos. 4, 5 and

6. The appellant preferred an appeal before the learned District Judge against the aforementioned judgment of the Family Court. The learned District Judge by his judgment dated 8‑12‑1985 dismissed the appeal as incompetent. Feeling aggrieved of the aforementioned judgments dated 6‑6‑1985 and 8‑12‑1985 respectively passed by the learned Judge Family Court and the learned District Judge, Khushab the appellant invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan. The learned Single Judge of this Court by his order, dated 25‑2‑1987 dismissed the said Constitution Petition (Writ Petition No. 4440 of 1986). Hence the present Intra‑Court Appeal. The only contention by the learned counsel for the appellant before us is that the learned Single Judge erred in law in upholding the judgment of the learned District Judge in that appeal against the Family Court's judgment lay before the District Judge by virtue of section 14(2)(a) of the West Pakistan Family Courts Act, 1964. He in this regard referred to the head note (a) of the case reproted as Mst. Aziz Fatima v. District Judge, Jhang and another P

1. D 1987 Lah.ll. The headnote reads as under: "(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑S.14.‑‑ Dossolution of Muslim Marriages Act (VIII of 1939),S.2(viii)(d)‑ Dissolution of marriage‑‑Decree by Family Court‑‑Competency of appeal‑‑No appeal, held, would lie from decree by a Family Court for dissolution of marriage except in case of dissolution of marriage where husband treats his wife with cruelty or disposes of her property or prevents her from observance of religious profession or practice No appeal would be competent whether decree was ex parte or otherwise in all other cases." We are of the view that the contention raised on behalf of the appellant has no force. On a conjunctive reading of section 14(2)(a) of Muslim Family Courts Act, 1964 and section 2(viii)(d) of the Dissolution of Muslim Marriages Act, 1939 it clearly emerges that appeal against a decree of a Family Court would be competent only in the case where dissolution of marriage is effected on the ground that the husband had treated the wife with cruelty referred to in clause (d), viz. disposed of her property or prevented her from exercising her legal rights A over the same. Now the dissolution of marriage effected by the learned Judge Family Court, Khushab in the case in hand was on the following three basis:‑ (a) that the defendant failed to pay maintenance to the plaintiff; (b) that the defendant had failed to perform marital obligations without any just excuse; and (c) that the defendant had treated the plaintiff with habitual cruelty by beating her. The aforementioned grounds for dissolution of marriage on a plain reading of section 14(2) of the West Pakistan Family Courts Act, 1964 and section 2(viii)(d) of Dissolution of Muslim Marriages Act, 1939 fall outside the purview of an appeal envisaged by section 14(2) ibid. The ground on the basis of which a decree for dissolution of marriage could be appealed against in the instant case is covered by issue No.4 framed in the matter which issue has been found in favour of the appellant and, therefore, the question of incompetence of the appeal had been rightly decided by the learned District Judge and so has it been correctly affirmed by the learned Single Judge of this Court. It may pertinently be observed here that the judgment cited by the learned counsel for the appellant in support of his plea in no manner advances the case of the appellant. In fact, the word "or" occurring in the head-note after the word "cruelty" and before "disposes" appears to be a printing error or it has been used by the person who drafted the head-note in that in the body of the judgment, this word does not occur as is apparent from the relevant para of the cited judgment, viz. para 6 appearing at page 14 of the report. In view of the foregoing discussion we find no merit in this appeal which is accordingly dismissed in limine. Before parting with the subject, we would, like to observe that the framing of headnotes of the reported cases has been found at times to be incorrect and not in accord with the judgment/principle laid therein. An example of this negligence is manifest in the report referred to above. The Journal shall be well‑advised to be careful in this regard as this can lead to catastrophic increase in litigation. M.BA./N‑190/L Appeal dismissed.