P L D 1987 Lahore 11 (PLP)

The petitioner filed a suit on 6‑2‑1983 for dissolution of marriage saying that she was 5/6 years old when her Nikah was performed with the respondent No.

2. Marriage was never consummated. She was virgin. On attaining puberty, she had exercised her right of Khair‑ul Balugh, option of puberty. The respondent is 50/60 years of age. The learned Judge, Family Court, Chiniot, seized of the case issued summons for 8‑3‑1983 which were not received back. The learned trial Court, again, issued summons and directed service through registered letter Acknowledgement Due for 27‑3‑1983. Report on summons through process agency was received that the respondent was away and the summons could not, therefore, be served. On the registered Acknowledgement Due, the report was that there was no man of the name and parentage of the address. The learned trial Court again issued process through summons and registered Acknowledgement Due for 25‑4‑1983. The summons were not received back. But the registered letter was returned with the report that the addressee had refused to receive the letter. In view of this, the learned trial Court granted an ex parte decree of dissolution of marriage to the petitioner on 25‑4‑1983. The respondent filed an application for setting aside the ex parte decree on 16‑7‑

83. After recording the evidence of the parties the learned Judge, Family Court dismissed the application vide order dated 22‑12‑1985. This was challenged through an appeal by the respondent. The learned District Judge accepted "the appeal and while allowing the application under rule 3 of the West Pakistan Family Courts Rules, set aside the ex parte decree passed in favour of the respondent (petitioners) against the appellant (respondent)" and remanded "the case to the learned trial Court for its decision in accordance with law". This is vide order dated 1‑3‑1986. This is challenged through the afore‑titled Constitutional petition by the lady.

2. Learned counsel for the petitioner has contended that the appeal before the learned District Judge was incompetent and he placed reliance on Shah Muhammad v. Additional District Judge, Sheikhupura and another (1). Secondly, the learned counsel submitted that after the ex parte decree dated 25‑4‑1983 and the rejection of the application of the respondent for setting aside the same on 22‑12‑1986, the petitioner was married and Nikahnama produced before the learned District Judge but these facts were not taken into account by the learned District Judge. It is also submitted that now the petitioner is in the family way.

3. Learned counsel appearing for the respondent No. 2 has submitted that the appeal was competent and he has placed reliance on Babu v. District Judge, Sahiwal and another (2). He further submitted that there is no proof of remarriage of the petitioner and the photostat copy of the Nikahnama produced is not reliable and there is no proof that the Nikahnama was produced before the learned District Judge. Learned counsel also submitted that even if the petitioner has remarried and is in the family way, that is not a relevant consideration for exercise of discretion in view of Mst. Kaneez Fatima v. Mumtaz Khan and others 1983SCMR56. (1) 1979 C L C 364 (2) P L D 1978 Lah. 85

4. In reply the learned counsel for the petitioner submitted that the facts of remarriage and production of Nikahnama were stated in the writ petition and no written statement has been filed to deny the said facts.

5. To appreciate the legal contention raised by the learned counsel for the parties regarding the competency of the appeal before the learned District Judge, section 14 of the West Pakistan Family Courts Act, 1964, may be quoted as below:‑ "(1) 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) to the High Court, where the Family Court is presided over by a District, an Additional District Judge, or a 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 other case. (2) No appeal shall lie from a decree passed 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 Marriages Act, 1939. (b) for dower not exceeding rupees one thousand. (c) for maintenance of rupees twenty‑five or less per month." In this behalf, rule 13 of the West Pakistan Family Courts Rules, 1965, may also be quoted as below:‑ "Ex parte decree or proceedings may, for sufficient cause shown be set aside by the Court on application made to it within thirty days of the passing of the decree or decision."

6. From the above it would be clear that under section 14(1) of the aforesaid Act, `a decision given or decree passed by a Family Court', is appealable but under subsection (2) of the said section 14 `no appeal shall lie from a decree by a Family Court for dissolution of marriage' except in the case of dissolution for the reason specified in clause (d) of item (viii) of section (2) of the Dissolution of Marriages Act, 1939,1 which provides:‑ "that the husband treats her with cruelty, that is to say

(d) disposes of her property or prevents her religious profession o practice" Leaving aside the exception which is not applicable, no appeal shall lie from a decree passed by a Family Court for dissolution of marriage. The provision is clear and explicit that no appeal shall lie from a `decree' and it makes no distinction whether the decree is ex parte or otherwise. In the case quoted by the learned counsel for the respondent No. 2, Babu v. District Judge, Sahiwal and another it was observed in para. 5 at page 86 that "No doubt decree for dissolution of marriage for any reason other than that specified in section 2(viii)(d) of the Dissolution of Muslim Marriages Act, 1939, would not be appealable because of the bar contained in clause (a) of subsection (2) of section 14 of the Act; but in the present case the appeal moved before the learned District Judge was not from any decree for dissolution of marriage. The appeal was against the order dated 16‑10‑1976 whereby the learned Family Judge had refused to set aside an ex parte decree. This order of refusal to set aside an ex parte decree is undoubtedly independent of and subsequent to the decree for dissolution of marriage. If the petitioner would have filed two appeals; (i) against the decree for dissolution of marriage dated 8‑7‑1976; and (ii) against the order dated 16‑10‑1976 refusing to set aside the ex parte decree, then the first mentioned appeal would not be competent because of the bar contained in section 14(2)(a) of the Act. The second mentioned appeal would be competent because it would not be against the decree of dissolution of marriage but against a decision by the Family Judge refusing to set aside the earlier decree." Holding the order of the Family Judge declining to set aside the earlier decree as a "decision", it was held that the appeal before the District Judge was competent. In the case quoted by the learned counsel for the petitioner Shah Muhammad v. Additional District Judge, Sheikhupura and another the learned Judge came to the conclusion that on acceptance of an application "an order reopening the case after setting aside the ex parte decree ...does not amount to a "decision" within the meaning of section 14 of the Family Courts Act and as such it was not appealable." The two judg ments delivered by the two eminent Judges sitting singly have given rise to anxiety that if an application for setting aside an ex parte decree is rejected appeal is competent but if the application is accepted, then the appeal is not competent. An order or decision whether of rejection or acceptance has to be either appealable or not, especially in the case of first appeal. Secondly, from the legislative provision regarding appeals given in section 14 of the West Pakistan Family Courts Act, 1964, quoted above it is quite clear that the Legislature intended that from a `decree' for dissolution of marriage, there should be no appeal. Decree whether ex parte or otherwise cannot be interfered with by a side‑attack on appeal. If ex parte, decree is sought to be set aside, recourse has to be had under rule 13 aforequoted which provides that an "ex parte decree or proceed ings may, for sufficient cause shown be set aside by the Court on applica tion made to it within thirty days of the passing of the decree or decision". From this it would follow that in case of an ex parte decree an application can be filed to the Court passing the ex parte decree. If the application is accepted the case would be re‑heard. If it is rejected, then the ex parte decree will remain intact. The decree whether contested or ex parte being unappealable under the aforesaid Statutes and also so held in the case quoted by the learned counsel for the respondent P L D 1978 Lab. 85, it would appear that the matter of dissolution of marriage is left exclusively in the hands of the learned Judge, Family Court and no appeal has been provided therefrom. In this view of the matter it would appear' that the impugned order passed by the learned District Judge allowing the application for setting aside the ex parte decree and setting aside the decree himself, in exercise of powers under rule 3 of the aforesaid Rules, 1965, which lays down that the "Courts of the District Judge, the Additional District Judge, the Civil Judge,‑‑‑shall be the Family Courts for the purposes of the Act", is not quite in consonance with the statutory provisions which provided that against a decree for dissolution of marriage no appeal shall be competent before any Court or authority. Reliance of the learned District Judge on rule 3 aforesaid is quite in apt. District Judge shall be Family Court if it takes cognizance of the case in the first instance. Not when cognizance ha been taken by the Civil Judge and the later has passed a decree which is unappealable under the Statute. If it were so, the learned Civil Judge may as a Judge, Family Court pass a decree which is unappealable before the District Judge but the latter may set it at naught by saying that he, too, is a Judge, Family Court. Non‑appealability of provision would thus be thrown to the winds.

7. Another consideration to be kept in view while deciding this matter is that after the decree of dissolution of marriage and rejection of the application for setting that aside, the petitioner has remarried. It was stated in para. 5(B) of the petition that "the petitioner appeared before the .learned District Judge and her counsel had a statement that the petitioner after her marriage was dissolved has re‑married and a Nikahnama was produced. The learned District Judge returned the Nikahnama. He had neither taken the Nikahnama into consideration nor said a word about it in his judgment". No written statement has been filed to controvert this submission. Learned counsel for the petitioner also stated that the petitioner is in the family way for the last two months. The contention of the learned counsel for the respondent that in view of 1983 S C M R 569 notwithstanding the second marriage and birth of a child the case was remanded by the High Court and Civil Petition for Leave to Appeal No. 148‑R of 1982 was dismissed, has to be seen in con text that in that case the ex parte decree was set aside by the learned Single Judge in the High Court on the finding that the provisions of the Soldiers (Litigation) Act, 1925, were not complied with. In this behalf the learned Supreme Court has observed that "No doubt the second marriage of the petitioner and the birth of child from that wedlock cannot be ignored, but equally important is the fact that . soldiers serving in the national cause, should be protected against infringement of their rights which are guaranteed by the law, including those relating to matrimony. Such a case which smacks of one‑sided unfair treatment to a soldier, cannot be ignored either merely because the wife pursued the litigation and treated the solemn bond of wedlock, to say the least, recklessly and the trial Court failed to observe the ordinary dictates of law. The child it is in record having died, has been saved of the ignominy, which it was exposed by the mother. The law will take care of the second marriage." Facts of the casein hand are entirely different. It was a litigation between the two ordinary citizens and the petitioner had not recklessly pursued the litigation. She had exercised her right, filed a suit which was decreed, and the application to set aside the decree was tried, evidence taken and the learned Judge, Family Court, found no merits in the application and rejected it. It was thereafter that the petitioner remarried and is in the family way. No statute like the Soldiers (Litigating) Act, 1925, was violated by the learned trial Court. In this view of the matter the fact of remarriage of the petitioner and her being in the family way E cannot be ignored altogether. For all the reasons given above it appears to be just and in accordance with law that the marriage of the petitioner at the age of 5/6 years with the respondent aged 50,160 years dissolved in exercise of right of option of puberty and the decree ‑passed by the learned Judge, Family Court, call for no interference. The order of the ‑learned District Judge impugned i n the petition was without lawful authority. It is so declared. Since question of law was involved in the petition, therefore, the parties are left to bear their own costs. A, A. Petition accepted.