2003 PLP 870 (YLR)

3. On the other hand, learned counsel for respondents contends that the petitioners had earlier filed a suit for maintenance, which was decreed in their favour vide judgment and decree dated 7‑7‑1992 @ of Rs.200 pet child per month, therefore, the second suit on the same cause of action was barred under section 11 of C.P.C. as contemplated by section 17 of the Family Courts Act, 1964. His contention is that petitioners could have filed a miscellaneous application in their earlier suit for the enhancement of their maintenance allowance. Relies on a judgment passed by this Court in Writ Petition No. 1483 of 2000.

4. I have considered the arguments of learned counsel for the parties.

5. The objection of the learned counsel for the respondents that the second suit was not maintainable, is not tenable; firstly, this objection was never raised before the Courts below, secondly decree passed by the trial Court in this case on 28‑5‑1998, was never challenged by respondent No.3 either through an appeal or a Constitutional petition, whatever remedy was available to him and lastly, even if second suit was barred, the same could be treated as miscellaneous application and processed in accordance with law. This being merely a technical objection, I am not persuaded to non‑suit the petitioners on this ground.

6. It would be advantageous to re produce section 14 of the Family Courts Act, 1964, which deals with the right of appeal in the family cases:‑‑ "Appeal.‑‑‑(1) Notwithstanding any thing 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 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 the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslims Marriages Act. 1939; (b) for dower not exceeding Rupees one thousand; (c) for maintenance of Rupees 500 or less per month. Under subsection (1), two things are appealable; first is "a decision given" and the second is "decree passed by a Family Court". Under subsection (2) (c), a decree for an amount of maintenance less than Rs.500 is not appealable. In the instant case, the petitioners have not challenged the decree of maintenance, they had only challenged the decision given by the Family Court regarding amount of maintenance, therefore, the case would fall under subsection (1) of section 14 and the decision of the Family Court with respect to the amount fixed by the Family Court can be examined by the Appellate Court under subsection (1) of section 14 of the Family Courts Act, 1964.

7. The bar of availability of appeal is only available against the father/husband, who wants to challenge the very decree itself in which the amount of maintenance is less than Rs.500 i.e. if he questions the very passing of a decree of maintenance against him. There is another angle to look at this provision, the words, "Rupees 500 or less" is very significant in clause (c) of subsection (2) of section

14. The intention of the Legislature appears that a clog has been placed on the right of the father/husband to file an appeal in a meagre amount of maintenance, which is even less than Rs.500. The Legislature cannot be imputed with an intention that the minors/wife, who have already been granted a meagre amount of maintenance would also be deprived of a right of appeal as well.

8. There is another important angle in the instant case i.e. a decree for maintenance was already passed against respondent on 7‑7‑1992, at a rate of Rs.200 per month per child, which was maintained up to the level of this Court and the respondent had been paying the maintenance under the said decree. In the present round of litigation, only a decision has been given by the Family Court, whereby the amount of maintenance was varied, therefore, it cannot be said that the petitioners were challenging the decree under subsection (2) rather it was only a decision given by the Family Court varying the quantum of maintenance which is appealable under subsection (1) of section 14.

9. In arriving at the above decision, 1 have the support from the judgment of this Court reported as 2002 MLD 784 (Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others) in the following words:‑‑ "The contention of the learned counsel for the petitioner has no merit. The abridgement applies to the judgment debtor and not to the decree‑holder. The language of the section can have only one interpretation. The impediment against filing the appeal applies to the judgment‑debtor as the Legislature thought it fit not to provide an appeal against a decree for a meagre amount. If the contention of the learned counsel for the petitioner is accepted that will lead to injustice and anomaly. If the Family Court awards maintenance allowance for Rs.500 per month or less, the wife or the minor children are entitled to file an appeal before the higher Court. By no stretch of imagination can it by inferred that the Legislature intended to deprive the minors or the wife from their vested right of appeal. The West Pakistan Family Courts Act, 1964, indicates that the provisions of the Act are of a beneficial nature which enlarge the scope and also vest the Court with power of giving great relief with a right of appeal. It is well‑established that construction leading to absurdity is to be avoided. It is more in accordance with reason and justice. If the construction as alleged by the learned counsel for the petitioner is adopted, this will lead to hardship and injustice to the minors. Such‑like interpretation cannot be imputed to the Legislature and very purpose of the Act for which it was enacted will be defeated. "

10. For what has been stated above, I accept this writ petition, set aside the order passed by the learned Additional District Judge dated 8‑9‑1999, declaring the same to be illegal and without lawful authority. Result would be that the appeal filed by the present petitioners before the learned Additional District Judge shall be deemed to be pending and shall be disposed of in accordance with law as expeditiously as possible. H.B.T./A‑704/L Petition accepted.