' MUHAMMAD FARRUKH IRFAN KHAN, J.---The petitioner is aggrieved against the order dated 2.7.2014 of the learned Judge Family Court, Lahore insofar as it directed return of dower amount of Rs,200,000/- while granting her decree for dissolution of marriage on the basis of `khula'.
2. Brief facts of the case are that the petitioner filed a suit, inter alia, for dissolution of marriage on the basis of `khula' against the respondent. The respondent contested the suit and filed his written statement. The case was fixed for reconciliation proceedings but the respondent did not turn up in person despite availing a number of opportunities. The learned trial Court, vide order dated 2.7.2014, decreed the suit to the extent of dissolution of marriage on the basis of `khula subject to return of dower amount of Rs,200,000/- to the respondent. The petitioner has assailed the impugned order to the extent of return of dower amount in the instant writ petition.
3. Learned counsel for the petitioner contends that remedy of appeal is not available in view of section 14(2)(a) of the Family Courts Act, 1964; that the impugned order is against law and facts on record; that while decreeing the suit on the basis of `khula' the learned trial .Court has ignored the pleadings of the petitioner in which she had also alleged cruelty on the part of the respondent; that the petitioner has not been afforded an opportunity to prove her ground of cruelty by production of evidence, therefore, the impugned order is not sustainable in the eye of law; that though the dower was paid in cash at the time of `nikah but the same was taken back by the respondent and as such there was no occasion for the learned trial Court to order for return of the dower amount without recording evidence of both the parties in this respect; that even otherwise, in any case the amount of dower could not .Be ordered to be returned rather only a part amount was required to be returned under section 10(5) of the Family Courts Act, 1964 that the impugned order is liable to be set-aside to this extent. Reliance is placed on the cases of Abid Hussain v. Additional District Judge, Alipur, District Muzatfargarh and another (2006 SCM R 100) and Muhammad Bashir Ali Siddiqui v.
Mst. Sarwar Jahan Begum and another (2008 SCM R 186).
4. Conversely, learned counsel for the respondent submits that the petitioner has not availed the statutory remedy of appeal under section 14(2)(b) of the Family Courts Act, 1964, therefore, the instant writ petition is not maintainable; that the petitioner has sought dissolution of marriage on the basis of `khula', therefore, there was no justification for passing decree on the ground of cruelty; that payment of dower amount at the time of performance of `nikah' is not denied by the petitioner; that the impugned order has been passed in accordance with law and does not call for interference by this Court in exercise of constitutional jurisdiction; and that the instant writ petition deserves to be dismissed.
5. Arguments heard. Record perused.
6. The suit was instituted on 16.12.2013. It was decreed to the extent of dissolution of marriage on the basis of `khula' subject to return of dower amount of Rs,200,000/- on 2.7.2014. Admittedly, the petitioner has not challenged dissolution of marriage in the instapt writ .Petition. She is aggrieved only of the condition of return of the dower amount of Rs,200,000/-. No doubt according to section 14(2)(a) of the West Pakistan Family Courts Act, 1964 remedy of appeal is not available against a decree of the Family Court passed in a suit for dissolution of marriage but Clause (b) of subsection 2 of section 14 debars the aggrieved party to file appeal only where value of the dower or dowry is not exceeding rupees thirty thousand. In the present case, the petitioner has assailed return of dower of Rs,200,000/-, therefore, the remedy of appeal was available to her under section 14(1)(b) of the Act ibid. Even in the matter of dissolution of marriage, the petitioner has the remedy to file appeal as the learned Judge Family Court passed a conditional decree in her favour. Admittedly, she did not file appeal before the proper forum and has assailed the impugned order directly in this Court in exercise of its Constitutional jurisdiction. Writ jurisdiction cannot be invoked when the statutory remedy of appeal is available. Reliance in this regard is placed on the case of Imtiaz Ahmed v. Gliulam Ali and others (PLD 1963 SC 382). In this view of the matter, this Court is of the considered view that the instant writ petition is not maintainable. The dictum laid down by the august Supreme Court of Pakistan in the case of Abid Hussain v. Additional District Judge (supra) also supports the view of this Court that if the petitioner-wife/decree-holder was aggrieved of the decree of the Family Court she could avail the remedy of appeal. In the cited case the august Supreme Court of Pakistan has observed as under: "the object behind non-provision of appeal in case of dissolution of marriage was to protect women, an under privileged and generally oppressed section of the society, from prolonged and costly litigation, as such it aimed to put a clog on the right of husband. It would be improper to construe subsection (2)(a) in a way so as to deprive a wife from appealing from the decree refusing her relief on the grounds, which according to the Family Court have not been proved but nevertheless granting the decree of dissolution on some other ground. Such an interpretation would be in violation of the wholesome provision of appeal contained in subsection 14(1) and the very object of introducing the Family Courts Act."
From the above, it is evident that the law has put a clog on the right of appeal of the husband and not the wife. Learned counsel for the petitioner has misconceived the ratio decidendi in the above cited case. In support of this view reliance is also placed on the case of Sajid Mahmood v.
Additional District Judge, Bahawalpur and others (2008 CLC 1657). As this Court is not touching merits of the case, there is hardly any need to discuss the case of Muhammad Bashir Ali Siddigui v.
Mst. Sarwar Jahan Begum and another (supra) lest any of the observations of this Court may prejudice case of either of the parties.
7. For what has been discussed above, the instant writ petition is dismissed as being not maintainable.