1989 PLP 339 (MLD)

2. A notice of this petition was sent to the respondent Muhammad Nawaz at his given address and that despite service he failed to appear before this Court to contest these constitutional proceedings. Ultimately notice for his service was published in `Daily Mashriq' dated 11‑7‑1988. Thus for all intents and purpose the service upon the respondent is complete in the eye of law. The case was fixed for arguments on 21‑9‑1988. However, the said respondent failed to appeal despite service and accordingly ex parte proceedings were initiated against him.

3. I have heard the learned counsel for the petitioner as well as the learned Additional Advocate‑General and Mian Muhammad Iqbal Advocate and have perused the record. The suit of the petitioner was decreed ex parte by the learned Judge Family Court vide his judgment dated 23‑5‑1981 Annexure B. On the basis of this ex parte order the petitioner after completing her `Iddat' period married with Ghulam Rasool son of Mian Khuda Bakhsh on 16‑10‑1981 vide Nikahaama Annexure C. The marriage was duly registered on 12‑11‑1981 and as a result of that marriage the petitioner has given birth to a child. Learned counsel for the petitioner as well as learned Additional Advocate‑General and Mian Muhammad Iqbal Advocate contend that when a suit for solution of marriage of the wife is decreed and as a consequence thereof the marriage is dissolved, no appeal against such decision shall lie under section. 14 of the West Pakistan Family Courts Act, 1964. For ready reference provisions of section 14 are reproduced:‑‑ "

14. Appeal.‑‑Notwithstanding anything provided in any other law for the time being in force a decision given or a decree passed by a Family Court shall be appealable. (a) ............................. (b) ................................... (2) No appeal shall lie from a decree passed by 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:' It has been specified under section 14(2) quoted above that no appeal shall lie from a decree passed by the learned Judge Family Court 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. All the learned counsel are unanimous on the question that after the marriage is dissolved by the learned trial Court, appeal before the learned Additional District judge is not competent at all as the decree passed shall be final. On these premises the learned counsel submits that the subsequent proceedings having been carried out by the respondent are not at all warranted in law. The learned counsel forcefully submits that the petitioner has already married with a person of her choice as back as 16‑10‑1981 and that out of the said wedlock she has given birth to a child. Learned counsel urges that it is established that respondent No. 3 despite service has failed to appear in Court to contest this petition. In other words the contention is that in the peculiar circumstances' of the case, the respondent does not appear to be keen to contest the case on merits because of the marriage of the petitioner with a third party. In my considered view the appeal of the respondent against the ex parte decree dated 23‑5‑1981 passed by the learned Judge Family Court was not at all competent before the learned Additional District Judge under section 14 of the West Pakistan Family Courts Act, 1964. The judgment of the learned Additional District Judge dated 10‑5 1983 is clearly without lawful authority and as such the same is of no legal consequence at all. Since no appeal at all was competent against the ex parte decree dated 23‑5‑1981 as such no further proceedings initiated thereafter were sustainable in law. Respondent No. 3 did not proceed in the matter according to law and as such he proceeded to adopt absolutely a wrong course which he cannot be permitted to do so. Additionally, as stated earlier, the respondent did not turn up to contest this petition despite his service, it shall, therefore, be presumed under law that the respondent is no more interested in the prosecution of the case.

4. The upshot of the above discussion is that the impugned judgment and decree of the learned Additional District due dated 10‑5‑1983 and the B subsequent proceedings are wholly without lawful authority and of no legal consequence and as such are quashed. Consequently this petition succeeds and is allowed. There shall be no order as to costs. M.Y.H./M‑1122/L Petition allowed.