' GHULAM RABBANI, J.---This petition for leave to appeal is directed against the judgment dated 19- 11-2009 passed by Peshawar High Court, Abbottabad Bench, whereby the writ petition filed by respondent was partly allowed, the appellate judgment and decree in favour of petitioner for recovery of dower amount of Rs,1,50,000 was set aside; however, the other part of the decree granted by the trial as well as appellate Courts as regards maintenance was maintained.
2. Precisely stated, facts of the case are that the petitioner instituted in the month of September, 2007, a suit against respondent No,1 seeking dissolution of marriage, recovery of dower amounting to Rs,1,50,000, dowry articles equivalent to Rs,2,50,000 and for maintenance. In her plaint she stated, inter alia, that she was treated with cruelty inasmuch as she was forced to do extra work in the house; her in-laws did not behave well with her; and when she attempted to make complaint to the respondent No,1 she was beaten by him with threats to pronounce divorce by way of talaq.
Further that the respondent No,1 did not provide raiment to her and, therefore, she had to ask her parents for that; yet, in the month of June, 2007 she was driven out from his house by the respondent No,1 after badly giving her thrashing forcing her to institute the suit as above. The respondent No,1, too, instituted a separate suit for restitution of conjugal rights and recovery of valuables including cash and gold ornaments. After considering the evidence adduced by both parties, the suit of the petitioner was decreed by dissolving her marriage by way of khulla, granting dowry articles as per list with plaint or in the alternate market value i,e, Rs,2,50,000 and the maintenance allowance during the period of Iddat while her request to grant Haq Mahar was declined vide judgment dated 20-6-2008 passed by the Judge Family Court Abbottabad. The respondent challenged before the District Court that judgment by way of appeal which was accepted, granting dower amount of Rs,1,50,000 and maintenance of Rs,2,000 per month from June, 2007 to September, 2007 vide judgment dated 27-11-2008 passed by Additional District Judge (V), Abbottabad. Being aggrieved, the respondent No,1 filed before the Peshawar High Court a writ petition which was partly allowed in the above noted terms vide judgment impugned herein.
3. We have heard and given due attention to the arguments of learned counsel for the parties and with their assistance we have examined the material made available before us. The petitioner was granted dower by the Appellate Court, however, the High Court reversed the decision with following observations:--
(6) "A perusal of record would show that the judgment and decree for dissolution of marriage on the basis of khula' was not appealable. The learned appellate Court conveniently ignored this important aspect through the ground of competency of appeal was agitated by petitioner in his arguments as mentioned in the impugned judgment but the same was dealt with in a slipshod manner. The learned appellate Court failed to appreciate that in the instant case the relief of dower amount could not be considered in isolation but the same had nexus with the dissolution of marriage based on khula' and, therefore, the findings of trial Court for not granting dower could not be reserved without disturbing the ground of khula' which essentially would tantamount to an appeal against dissolution.No appeal lies against dissolution whether it is on the ground of cruelty or khula'. The learned appellate Court exercises appellate jurisdiction and has wrongly presumed himself as Qazi which is not only against Islamic Jurisprudence but also Family Laws prevalent and governing family disputes. Paro 4 of the impugned judgment is also disapproved with the result that the grant of dower by the Appellate Court is without jurisdiction. As far as maintenance allowance is concerned that has been proved on record and findings of appellate as well as trial C hurts are maintained." (Emphasis by us)
3.(sic) Learned counsel for the petitioner in his arguments took a plea that the suit of the petitioner was instituted, ameag others, for the recovery of dower amounting to Rs,1,50,000 and since the same was not allowed by the learned trial Court, the petitioner could competently prefer an appeal and in that the bar appearing in subsection (2)(b) of section 14 of Family Courts Act, 1964 would not come,in her way. He stressed that the Appellate Court rightly maintained the appeal of the petitioner and granted to her the dower, as claimed; and that the learned High Court, under misconception of law, reversed the decree of the Appellate Court. On the other hand learned counsel for respondent No,1 supported the judgment. He stated that the High Court passed the judgment on correct legal and sound basis which warranted no interference.
4. Admitted fact is that the petitioner had instituted her suit, among others, for recovery of dower amounting to Rs,1,50,000 which was declined by trial Court, patently, forcing her to prefer an appeal therefor. The question which, now, needs to be resolved is whether the petitioner could or could not challenge the decree of the trial Court by way of appeal. To resolve the point it will be useful to reproduce the relevant provision of law i,e, section 14 of the Act ibid as follows:--
(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 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 or dowry not exceeding rupees thirty thousand;
(c) for maintenance of rupees one thousand or less per month."
' Reading of the above provision of subsection (1) supra reveals that 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 in High Court when 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 Additional District Judge and in other case the appeal shall be competent before District Judge mentioned in clause (a) thereof, meaning /hereby, that decision given or decree passed by a Family Court shall be appealable. Nevertheless, there is an embargo put on an appeal when the decree is passed by Family Court for the relief covered by clauses (a) to (c) of subsection (2) reproduced hereinabove. Subsection (2) of section 14, reproduced above, however, speaks about the bar coming in the way B only when a decree is passed by a Family Court for a dower (or dowry) not exceeding Rs,30,000. In the instant case no decree was passed by learned trial Court granting any amount of dower in favour of the petitioner; therefore, in our view the petitioner was not precluded from preferring an appeal before District Judge for appropriate relief of dower. Having said so, the question needing resolution will be whether the petitioner is entitled to be paid the amount of dower depending on the material available before the Court. Admittedly the appeal is a continuity of the original proceedings of a suit, therefore, in our estimation, there could not be any restraint on the petitioner to prefer an appeal claiming the amount of dower, when the trial Court on misreading, non-reading or lack of proper appraisal of the facts and circumstances of the case makes a wrong decision, therefore, it would be wrong to perceive that subsection (2) of section 14 puts a restraint to a woman or her legal heirs demanding the dower which is a condition sine qua non for a valid Muslim Marriage. From narration of the observation of a learned Division Bench of Peshawar High Court noted in para 3 hereinabove, it appears that the petitioner was non- suited on the ground that no appeal lies against dissolution whether it is on the ground of cruelty or In our estimation this observation of learned Division Bench of the High Court is not based on correct interpretation of law. As a result we find enough force in the arguments of learned counsel for the petitioner that since the dower, as claimed by petitioner was not allowed by the trial Court, the petitioner could competently prefer an appeal and the bar appearing in subsection (2) of section 14 ibid would not come in her way. This petition is, therefore, converted into appeal and disposed of in the terms that the impugned judgment is set aside and the matter is remanded to the learned High Court for fresh decision on merits after hearing parties to the litigation.