2006 PLP 100 (SCMR)

KARAMAT NAZIR BHANDARI, J.

Respondent No.2-wife filed a suit for dissolution of marriage. In the plaint she asserted habitual cruelty, non-payment of maintenance for more than 3 years and Khula as the grounds. Out of the pleading the learned Judge, Family Court framed the following issue, inter alia; Whether the plaintiff is entitled to get decree of dissolution of marriage as prayed for? OPP

2. After recording evidence, Family Court passed the decree for dissolution on the basis of Khula and directed the wife-respondent to return the house constructed over 5 Marlas of land which was given to her as dower at the time of marriage. The wife-respondent filed appeal. The learned Additional Judge maintained the decree of dissolution but on the ground of cruelty. This meant that the wife-respondent was not obliged to return the house. The appellate decree was challenged by the petitioner in the Lahore High Court, Multan Bench by way of Writ Petition No.5915 of 2004. The learned Single Bench dismissed the petition in limine on 1-11-2004, against which the petitioner seeks leave to appeal.

3. It has been vehemently urged by Mr. Shamim Abbas Bokhari, learned Advocate Supreme Court that against the decree of the Family Court, appeal of the respondent was not competent. In this connection he has relied on section 14 of the Family Courts Act, 1964. He has also urged that decree for dissolution could not have been passed on the ground of habitual cruelty, as there is no evidence on record to sustain the finding.

4. The question of competency of appeal does not seem to have been urged before the learned Additional District Judge. Certainly it has not been raised in the grounds of writ petition nor it seems to have been argued at the time of hearing as it does not find mention in the impugned judgment. The petitioner cannot be permitted to raise this question in this Court for the first time. Nonetheless we have examined this point as it has been argued by the learned counsel with considerable vehemence.

5. Section 14 of the Family Courts Act, 1964 reads:-- "

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; (c) 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."

6. The reliance of the learned counsel is on subsection (2) clause (a) of this section which debars an appeal from a decree of Family Court for dissolution of marriage except in the case when the marriage is dissolved on the ground mentioned in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939. Item (viii) describes the various forms of cruelty and clause (d) states that if the husband disposes of the property of the wife or prevents her from exercising her rights over it, it is a form of cruelty. According to Mr. Shamim Abbas Bokhari, since the decree in this case is passed on the ground of Khula, as such respondent's appeal was barred under subsection (2) of section 14.

7. The argument ignores the provision contained in subsection (1) which opens with the non obstante clause and states "the decision given or decree passed by the Family Court shall be appealable". Subsection (2) is in the nature of a proviso to subsection (1) and prohibits filing of appeal in case of dissolution of marriage on any ground except the one mentioned therein. The object behind non-provision of appeal in case of dissolution of marriage is to protect women, an under privileged and generally oppressed section of our society from prolonged and costly litigation. It aims to put a clog on the right of husband. It is well-established that the provision of proviso is to A be restrictively construed. It would be improper to construe subsection (2)(a) in a way so as to deprive a wife from appealing from the decree refusing her relief on the grounds, which according to the Family Court have not been proved but nevertheless granting the decree of dissolution on some other ground. Such an interpretation would be in violation of the wholesome provision of appeal contained in subsection 14(1) and the very object of introducing the Family Courts Act.

8. In the case in hand the wife-respondent claimed dissolution on the grounds other than that of Khula also. The issue did not contain any reason on proof of which the wife was to be granted the decree of dissolution. The ground of habitual cruelty and beating had been specifically taken in paragraphs 3 and 4 of the plaint. The Family Court granted the decree of dissolution on the ground of Khula and for this purpose it directed the return of the house since in its judgment the wife had enjoyed this benefit from the marriage with the petitioner. In other words the Family Court dismissed her suit or did not decree the suit on the grounds of cruelty and non-maintenance. I fail to understand as to why such an aggrieved wife cannot file an appeal under section 14(1) of the Family Courts Act, 1964. I am fortified in this conclusion by the language used in subsection (1). Under this provision appeal lies not only from the decree passed by the Family Court but also the "decision given" and in this case the decision given was that wife-respondent is not entitled to dissolution of marriage on the grounds of cruelty and/or non-maintenance. It is held and declared that her appeal was very much competent. The objection to its maintainability is rejected.

9. Both the appellate Court as well as the High Court have evaluated the evidence to conclude that wife-respondent was entitled to dissolution on the ground of cruelty. Normally this Court does not appraise the evidence to come to its own conclusion. Nonetheless after going through the evidence we are satisfied that the ground of habitual cruelty has been established.

10. No case for grant of leave is made out. Leave is refused and this petition is dismissed. M.H./A-181/S???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.