Contends that under Section 14(2)(b) of the Muslim Family Courts Act, 1964, appeal was not maintainable since the amount decreed was less than Rs, 30,000/-. The order, therefore, is illegal and without jurisdiction. In view of the said illegality this writ petition is maintainable and should accordingly be allowed with consequent relief.
2. Before proceeding further the relevant provision of section is. reproduced:--
14. Appeal:--(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 Judge, 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.
(b) To the District Court in any other case. (2) No appeal shall lie from a decree by a Family Court--
(a) for decision 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 sub-section (1) shall dispose of the appeal within a period of four months.
3. The language of law is very particular. While providing for an appeal under Section 14 its says that a `decision' given or a 'decree' passed by a Family Court shall be appeal able. While, however, in Section 14 (2) while abridging the right the language is that no appeal lie from a `decree' by a Family Court. Here the word `decision' has not been added while abridging the right of appeal under Section 14 (2) (a), (b) and (c). In the present case Section 14 (2) is applicable. However, it does not give any reason to a just mind that this abridgment can apply even on the decree holder.
There obviously cannot be any doubt about the judgment debtor that all the three sub-sections of Section 14 (2) as are obtaining in law today are applicable on him with full strength. However, its application in the case of the decree holder does not sound correct to this Court. For example if a poor lady has taken with her the dowry articles or her dower amount both are less than Rs, 30,000/- and the Family Court for the reasons before it decides not to provide even the said amount or something less than its claim it will be total injustice for the said woman not to provide a right of appeal against the said order. This would mean that her right of appeal culminates and the first forum i,e, Judge Family Court is the last hope for her. Fortunately, this Court has been able to lay its hand on a judgment reported as (2002 M.L.D 784) in the case of 'Mst. Neelam Nosheen and others Vs. Raja Muhammad Khaqaan and others", wherein, this matter has already been decided .with reference to provision of Section 14 (2) (c). The same speaks as follows:-- '14(2)-- No appeal shall lie from a decree passed by Family Court--(c) for maintenance of rupees five hundred or less per month. The contentions 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 meager amount. If the contentions 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 be 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 west 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 the very purpose of the Act for which it was enacted will be defeated."
4. The above para is very clear in its application. The culmination of the proceedings is in respect of the judgment debtor only and this Court does not have any doubt in its mind that the same can be applied on the decree holder as well.
5. The right of appeal is a vested right which accrues to the litigants and exist as on and from date liz commences and such right can be taken away only by a subsequent enactment with an express language or by necessary interments. By abridgment as per Section 14 (2) (b) the right of appeal has been withdrawn against the judgment debtor. The respondent Ex-husband if he wants to challenge the decree of dowry articles for Rs, 30,000/- or less, have been debarred from filing the appeal. There is no reason for this Court to agree that the legislature can be imputed with an intention that the wife who has already been granted a meager amount as maintenance would also be deprived of the right of appeal as well. The intention of the legislature in such circumstances has already been considered as relevant for interpretation of statutes. Even otherwise, the abridgment has been provided against the decree only and not the judgment. The appeal against the judgment remains intact. In this regard one can place reliance on (2003 Y.L.R 870) re: "Mst. Atia Wahab and another Vs. Munir Ahmed and 2 others". The judgment now referred by this Court inter alia has discussed two issues. One is in respect of the specific mentioning of the right of appeal against the judgment and decree and the subsequent is abridgment of said right in respect of decree only. The finding of the Court with respect thereto is as follows:-- "The contention of the learned counsel for the petitioner has no merit. The abridgment 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 meager 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 be 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."
6. This Court would readily agree with the aforementioned judgment as use of the term 'decree' in Section 14 (2) through which abridgment has been provided, cannot be considered as superfluous.
The legislature has used the same advisedly and intentionally, hence should not be ignored as already been held by the Hon'ble Court in the aforementioned judgment.
7. The primary rule of construction which is strictly applicable here is to determine the intent of the legislature and which in fact should be given the supreme importance. The cardinal rule of the construction of Acts of Parliament is that it should be construed in accordance with the language expressed, in the law itself. Bennion on "Statute Law" 3rd Edition pages 97 and 98 says that an enactment has the legal meaning taken to be intended by the legislative. Similarly, Lord Red cliff in "AG of Canada V. Hallet & Carey Ltd" (1952 A.0 427) has held that there are many so-called rules of construction that Courts of law have resorted to in their interpretation of statute but the paramount rule remains that every statute is to be expounded according to its manifest and expressed intention. Lord Halsbury has summed up the historical principle regarding legislative intent as follows:-- "that the judges have collected that intention sometimes by considering the cause of necessity of making the Act... sometimes by foreign circumstances (thereby meaning extraneous circumstances), so that they have been guided by the intent of legislature, which they have always taken according to the necessity of the matter and according to that which is consonant to reason and good discussion." 7-A. This Court is also conscious that the family matters are not decided strictly on the yard stick of procedural laws nor any other principle aimed at the observance of the technicalities. Reference (P.L.D 2005 Lahore 97) in case of "Hassan and others Vs. Chaudhary Tahir Saeed and others".
8. Upshot of the above discussion, therefore, is that since the right of appeal is a vested right and in the case of decree holder who has already been given a small amount i,e, up to maximum of Rs, 30,000/- or less, the right of appeal from the said poor lady cannot be relinquished.
9. In view thereof, this writ petition is considered without any useful purpose, hence, the same is dismissed.