1985 PLP 1229 (CLC)

This application under Article 9 of the Provisional Constitution Order, 1981 is against order dated 24-9-1984 of learned Additional District Judge, Toba Tek Singh, dismissing an appeal directed agains order dated 24-1-1984, arising out of a suit for jactitation of marriage, instituted by Mst. Zainab Bibi against Riaz, writ petitioner.

2. The facts giving rise to the present controversy briefly stated are that Mst . Zainab Bibi instituted a suit for jactitation of marriage against Riaz in the Court of Judge Family Court, Toba Tek Singh. Defendant, when appeared, filed written statement. In the written statement, averments made in the plaint were controverted. Learned Judge Family Court, framed, following issues:- ISSUES: (1) Whether the suit in the present form cannot be proceeded. If so, what is the correct form and what it its effect? (2) Whether the plaintiff is entitled to the decree prayed for? (3) Relief. After the issues were settled, parties, were allowed opportunity to lead evidence in support of the aforenoted two issues. Accordingly, both the parties, adduced evidence in support of their varying versions. Learned Judge Family Court vide his judgment dated 24-1-1984, found in favour of the plaintiff and decreed the suit. Against decree, an appeal under section 14 of the Family Courts Act, 1964, was filed in the Court of District Judge. Learned Additional District Judge, Toba Tek Singh to whose file the appeal had been transferred, vide order dated 24-9-1984, found that the appeal was not entertainable under section 14(2) of the aforesaid Act. In the result of view taken by him, he dismissed the appeal. Dismissal order, is under challenge, at the instance of the unsuccessful appellant.

3. Respondent, Zainab Bibi, despite service, has not entered appearance and is proceeded against ex parte. Mr.Rashid-ud-Din Qureshi, Advocate, learned counsel for the writ petitioner has addressed arguments in support of the constitution petition. It has been forcefully contended by him that jactitation of marriage, was different from dissolu tion of marriage. Appeal against decree passed in a suit for jactitation of marriage was competent under section 14 of the Family Courts Act, 1964. Learned Additional District Judge, has misconstrued the provisions of the Act and, on erroneous assumption, failed to exercise jurisdiction which clearly vested in his Court. Had it been a case of dissolution of marriage, view taken by Additional District Judge would have been unexceptionable. Since the whole question turns on the construction to be placed on section 14 of the Family Courts Act, 1964, it will be of some advantage to reproduce it. It reads:- "14. (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 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 not exceeding rupees one thousand; (c) for maintenance of rupees twenty-five or less per month.

4. Family Courts, were established for expeditious settlement and disposal of certain family disputes. Exclusive jurisdiction was conferred on the Court to entertain, hear and adjudicate upon matters specified in the schedule of the Family Courts Act. These matters, in the first instance, were, dissolution of marriage, dower, maintenance, Restitution of conjugal rights, custody of children and guardianship. Item 7 was subsequently added and jactitation of marriage inserted in the schedule vide West Pakistan Family Courts (Amendment) Act, 1969. Corresponding amendment was not made in section 14 of the Family Courts Act, 1964. Section 14 allowed to remain as it was when the Family Courts Act was enforced. Undubitably, the suit out of which the appeal had arisen was a suit for jactitation of marriage and not a suit for dissolution of marriage. In terms of section 14, a decision given or a decree passed by a Family Court was made appealable. Then came the barring provisions of subsection (2) of section

14. Decree granting dissolution of marriage except when it proceeded in terms of clause 'd' item VIII of section 2 of the Dissolution of Muslim Marriages Act, 1939, could not be appealed against. Right of appeal, equally, was not available, in case of a decree for dower not exceeding Rs.1,000 or for maintenance at the rate of Rs.25 or less, per month. As regards jactitation, there was no such bar. Section 14 of the Family Courts Act as regards right of appeal is a complete Code in itself. Subsection (1), in express words, confers a right of appeal against a decision or a decree. passed by a Family Court. Obviously, decision given in a suit for jactitation was A covered by the term 'decision' or a 'decree' passed by the Family Court in its exclusive jurisdiction conferred on it by provisions of Family Courts Act, 1964. Right to test the soundness of a decision in appeal, undisputedly is a very valuable right conferred on a litigant party by the Statute. It is a substantive right conferred by an enactment and cannot be held to have been taken away by subsection (2) on section 14 of Act in the absence of the express/clear words to that effect. Distinction between a suit for jactitation and the one for dissolution is to obvious to be stated. Aftab Hussain, J. as his Lordship then was, in Mst. Amina Begum v. Ghulam Nabi and 2 others P L D 1974 Lah. 78, after an exhaustive survey of the precedent case law, has brought out the real connotation of term "Jactitation of Marriage". Jactitation of marriage is an unwarrantable assertion, that marriage exists. In fact, it is a false pretence of being married. Viewed in this light, it cannot be said to be a suit for dissolution under Act No. VIII of 1939. Had it been the intention of the Legislature to bar a right on appeal in case of jactitation also it could have easily expressed itself. as it did in case of dissolution of marriage when it provided a clear' bar in case of a decree granting dissolution of marriage. Right of appeal under section 14(1) of the Act, cannot be made to disappear, in the absence of a clear indication to that effect in the aforesaid Act, I am of the firm view that Court of appeal, was in error when it found the appeal to be incompetent. The error is so apparent that to allow it to stand, would be causing manifest injustice. Additional District Judge, misconstrued the provisions of section 11 of the Act, and refused to exercise jurisdiction which clearly vested in his Court. Having arrived at the conclusion that appeal was competent, I have no hesitation in striking down the impugned order as illegal declaring it to have been made without lawful authority.

5. Writ petition, is allowed, result is, that the appeal filed by Riaz against decree dated 24-1-1984, shall be deemed to be pending requiring re-decision on merits in accordance with law. Copy of the decision be despatched to Additional District Judge, for proceeding with the appeal. Petitioner is directed to appear before learned Additional District Judge on 19-3-1985. Since respondent, Mst. Zainab, was ex parte, I make no order as to costs. Learned Additional District Judge, will endeavour to decide the appeal within a period of two months from the date of the receipt of the copy of order. M.A.K. Petition allowed.