' MALIK MANZOOR HUSSAIN, J.---Chanzeb and another petitioners seek the constitutional jurisdiction of this Court praying that:-- "It is humbly requested that on acceptance of this constitutional petition, the judgment and decree dated 7-10-2009 passed by respondent No,3 in Family Appeal No,23/FC may please be set aside and the judgment and decree of trial Court to the extent of relief Jeem and Daal may also be modified by accepting Appeal No,23/FC filed as Chanzeb v. Yasmin Bibi or any other relief which Court deems fit and proper may also be granted."
2. The brief facts, as per contents of petition, are that the respondent filed a family suite for dissolution of marriage, recovery of maintenance allowance, possession of the dowered property through partition and dowry articles besides appointment of respondent No,1 as guardian of minor/respondent No,2 and she also moved petition for custody of the minor. The respondents appeared and contested the suits by filing written statement and petitioner No,1 also raised plea of restitution of conjugal rights. The learned trial Court consolidated both the suits, framed the issues' and after recording pro and contra evidence and hearing the parties partially decreed suit No,78/FC on 23-6-2009 and relief to the extent of dissolution on the basis of "Khula' was granted.
Feeling aggrieved, both the parties filed separate appeals and learned Appellate Court vide consolidated judgment dated 7-10-2009 accepted the appeal of respondents, whereby beside decree for dissolution of marriage, decree for dower and dowry articles was also granted and dismissed the appeal of petitioners, hence, the instant writ petition.
3. Learned counsel for the petitioners with vehemence contended that the learned Appellate Court had wrongly assumed jurisdiction while entertaining appeal against decree granted on the basis of 'Khula', as the same was not appealable under Section 14 of Family Courts Act, 1964. Further contended that in case of dissolution on basis of 'Khula' wife was not entitled to the relief of dower house, which was rightly rejected by learned trial Court.
4. Conversely learned counsel for respondents argued that plea of cruelty was not only alleged in plaint but proved through cogent evidence, thus, the marriage was wrongly dissolved oh basis of 'Khula' instead of cruelty which wrong was cured by the learned Appellate Court. It was further contended that in case husband was held at default, the wife was entitled to the dower or property given in lieu of dower.
5. Arguments heard and with the valuable assistance of learned counsel record thoroughly examined:
6. The questions of law raised for determination are as under:--
(i) Whether in case of dissolution of marriage on the basis of 'Khula', an appeal is entertainable by wife, in spite of bar contained under section 14 of Family Courts Act, 1964?
(ii) Whether in eventuality of a decree on basis of 'Khula', wife is bound, in all circumstances, to return the dower amount or the property received in lieu of dower?
It will be useful to reproduce section 14 of the Act ibid which reads:-- "14. Appeals.---(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 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; and
(b) to the District Court, in any 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 Muslim Marriages Act, 1939;
(b) for dower of 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."
' A bare reading of section 14(1) reveals that decision given or decree passed by a Family Court shall be appealable. So far subsection (2), which put embargo coming in the way of appeal in circumstances (a) to (c) that is in the nature of proviso to subsection (1). It is settled law that the provision of proviso is to be restrictively construed. The logic behind non-provision of appeal in the dissolution case is to protect under privileged and generally oppressed section of our society i,e, wife from costly and prolonged litigation. Rather in clear words, the law makers put a clog on the right of husband to file appeal in case of dissolution of marriage, keeping in view the peculiar circumstances prevailing in our society.
' The question raised about competency of appeal by wife is against the provision of appeal contained in section 14(1) of Act ibid. Wife can file an appeal against judgment or decision of trial Court where her suit was not decreed on the basis of cruelty or other grounds recognized under Family Laws, even if the marriage is dissolved on the basis of 'Khula'. Under the circumstances, the appeal filed by wife was very much competent. Looking it from another angle, it is not the decree for dissolution of marriage which is being challenged through appeal, it is the condition, which is being assailed through appeal, therefore, the case would not fall under subsection (2)(a) of section 14 of the Family Courts Act, 1964. Thus, if the claim for dower is refused that is appealable under section 14(1).
7. So far question (ii) formulated above is concerned, it depends upon case to case. In the case in hand wife claimed dissolution on the basis of cruelty, second marriage etc. These pleas were specifically taken in the plaint and specific issue was also framed. Serious allegations were leveled against the husband in the statement recorded by the wife, but despite the fact that the husband was available during trial, he failed to record his statement and controvert the serious allegations rather his attorney appeared for deposing on his behalf. It is well settled that in family cases it is the spouse who can depose about the marital relations and no one also can be a better substitute.
The wife was Post Graduate lady while the husband was educated upto class three. Though they were blessed by a son from the wedlock, but in spite of that husband contracted second marriage, which by itself was sufficient ground, despite others, to dissolve marriage. The learned trial Court committed wrong while dissolving marriage on the ground of 'Khula ' despite of availability of grounds alleged by wife. The right of dowered house was admitted by the trial Court but refused on wrong footing. Thus, appeal filed by the wife was very much competent under section 14 of Act ibid as the bar contained in 14(2)(b) contained only to the decree passed about dower not exceeding Rs,30,000. Where the decree for dissolution is passed on basis of cruelty and the Court comes to the conclusion that due to husband's machismonian attitude and displaying his masculine aggressiveness has compelled the wife to ask for dissolution of marriage even on the ground of 'Khula' , then the Court shall refuse the return of dower amount or dowered property to husband or relieve him from payment of outstanding dower. The learned Appellate Court had rightly held entitled the wife to the dowered house, while dissolving the marriage on basis of cruelty.
8. In view of what has been observed above, we find no merits in the instant petition which is dismissed.
9. Before parting with the judgment, it would be appropriate to notice that on the cause list it has inadvertently been noted, this petition as allowed, which as per original files been dismissed. As this was brought to our notice, so we deem it appropriate to mention the same in separate. Para.