MUJAHID MUSTAQEEM AHMED, J.---By filing this writ petition, the petitioners seek increase of maintenance allowance, partly decreed by learned Judge Family Court, Multan vide judgment dated 26.04.2018 and have also assailed the legality and propriety of the judgment dated 30.05.2018, passed by learned Additional District Judge, Multan, by which their appeal was dismissed on the ground that no appeal under Section 14 of the West Pakistan Family Courts Act, 1964 (The Act) was provided.#
2. The brief facts of the family litigation are that Mst. Shehla Jabbar petitioner No.1 (petitioner) and Muhammad Ahsan-respondent No.3 (respondent) were married on 25.12.2015. Out of this wedlock Qirat Fatima-petitioner No.2 was born. Differences between the parties arose and ultimately the petitioners filed suit for past and future maintenance allowance Rs.20,000/- per head per month and delivery expenses Rs.1,00,000/- (for Mst. Shela Jabbar). The respondent appeared before the Court and submitted his contesting written statement. The interim maintenance of minor was fixed by the learned trial Court @ Rs.2000/- per month. The respondent failed to pay the same, as such the learned Judge Family Court while proceeding under Section 17-A of the Act, decreed the suit of petitioners in the following terms:- "The right of defence to the extent of maintenance allowance of the plaintiffs is hereby struck off and suit of plaintiffs is hereby decreed under section 17-A of the West Pakistan Family Courts Act, 1964 and maintenance allowance of the plaintiffs is hereby fixed at the rate of Rs.2000/- each per month with 10% annual increment.
The plaintiff No. 1 is entitled to recover the maintenance allowance from the date of institution of this suit till her legal entitlement and plaintiff No.2 is entitled to recover maintenance allowance from the date of institution of the suit till her change of custody or marriage."
3. The petitioners feeling dissatisfied and disgruntled with the quantum of maintenance allowance assailed the order of learned Judge Family Court, Multan before learned Additional District Judge in appeal but to their dismay the appeal was thrown to the dogs while observing as under:- "The maintenance awarded by the learned trial Court i.e. Rs. 2000/- per month each comes within the preview of amended law as envisaged under section 14 of the West Pakistan Family Courts Act, 1964 which clearly postulates that no appeal shall lie against the judgment decree passed for maintenance less than Rs.5000/- in the instant matter, as observed, the maintenance fall within newly amended provision of law which impede to agitate any amount of maintenance less then Rs.5000/- in appeal. Hence appeal is not maintainable and the same is hereby dismissed being meritless."
4. By filing the instant petition, the petitioners have challenged the above judgments passed by learned Courts below, being against facts, law and as such not sustainable.
5. Learned counsel for respondent has opposed this petition, defended the impugned judgment being based on merits and thus prayed for dismissal of this constitutional petition.
6. Contention heard.
7. The legal question of right of appeal by the plaintiff in a family suit in terms of Section 14 of the Act came up before Hon'ble Supreme Court of Pakistan in case 'Saif-ur-Rehman v. Additional District Judge, Toba Tek Singh and 2 others' (2018 SCMR 1885), and was conclusively and authoritatively resolved in the following terms:-- "13. Subsection (1) of section 14 of the Act of 1964, confers a right of appeal. However, by virtue of subsection
(2) of section 14 of the Act of 1964, this right of appeal has been curtailed. The obvious purpose of curtailing the right of appeal is to avoid the benefits of any decree which may have been passed being tied up in an appeal before a higher forum. It has also been noticed that in only three eventualities that even the right of first appeal has been curtailed. In all three eventualities, the decree would be for the benefit of the wife for dissolution of marriage under Clause (a), for dower or dowry under Clause (b) and for maintenance under Clause (c). The last may also be for the benefit of a minor. Thus, the only logical and reasonable interpretation, which is in accordance with the purposive of the Act and in line with the beneficial nature thereof would be that a judgment- debtor of a decree envisages in Clauses (a), (b) and (c) of subsection (2) of section 14 of the Act of 1964, would not have a right of appeal so that the disputes mentioned therein are resolved expeditiously and the benefits conferred through such decree reach the decree-holder without being frustrated. However, the said provision cannot be interpreted so as to exclude a right of appeal to a wife whose claim of dower or dowry has been partially or entirely declined. For such an interpretation, would defeat the purpose and object of the Act of 1964 and frustrate its beneficial nature.
14. This Court while interpreting section 14(2) of the Act of 1964, in its judgment reported as Tayyaba Yunus v.
Muhammad Ehsan and others (2010 SCMR 1403) held that where a suit for dower has been dismissed, the wife has a right of appeal under section 14(2) of the above-said Act of 1964.
15. In a case pertaining to dissolution of marriage, this Court in the judgment reported as Abid Hussain v.
Additional District Judge, Alipur, District Muzaffargarh and another (2006 SCMR 100) held as follows:- The object behind non provision of appeal in case of dissolution of marriage is to protect women, an under privileged and generally oppressed section 'of our society from prolonged and costly litigation. It aims to put a clog on the right of husband.'
16. Thus, the only possible purposive beneficial and rational interpretation of section 14(2) of the Act of 1964, is that the right of appeal of a husband against whom a decree has been passed is curtailed, if the amount awarded is less than the amount, which is mentioned in the said provision. However, in no event the right of the wife to file an appeal is extinguished if she is dissatisfied with any decree in a suit for dower or dowry."
On the same legal question, in case 'Ghulam Rasool v. Senior Civil Judge with the powers of Judge Family Court, Faisalabad and 4 others' (2008 CLC 775 Lahore), following dictum has been laid down:-- "6. The law has always to be interpreted in a manner so as to give a logical and reasonable meaning to it and also to advance the cause and object of the relevant legislation. The law relating to the grant of maintenance allowance is in essence aimed at the welfare of the persons entitled to get maintenance. Any interpretation which is likely to put a clog on such right would run counter to the spirit of the law and, thus, must be turned down. If a right of appeal against the insufficiency of the quantum of maintenance allowance is curbed on the strength of section 14(2) (and) it shall be inhuman, unreasonable and against all norms of logic and law. The only sense that section 14(2) makes in the true perspective of law is that the bar provided therein is against the judgment-debtor and not against the decree-holder agitating against the insufficiency of the maintenance allowance decreed by the Court. In this behalf 1 am duly fortified by the dictum laid down in Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others 2002 MLD 784 and Saeed Ali v. Syed Ghulam Mursalin Naqvi 2004 MLD 306."
It will be also relevant to examine this legal question in view of case Saeeda Ali v. Syed Ghulam Mursalin Naqvi and another (2004 MLD 306 Lahore), wherein following dictum has been laid down:- "It may further be observed that the petitioners before this Court are the plaintiffs who had filed the suit for maintenance and dowry respectively and which were not decreed in accordance with their claim. The grievance is that of the party successful plaintiffs and the bar of section 14(2) (b) (c) of the West Pakistan Family Courts Act, 1964 shall not apply to them. The abridgement of the right of appeal as contained in the. aforesaid provision of law, as per the object and spirit of the said legislation would apply to the judgment-debtor and not to decree-holder as the Legislature has thought it fit not to provide an appeal against a decree for a relatively small amount both in case of claim for maintenance as well as that of the claim for dower or dowry.
10. For the above reasons, following the dictum laid down in the case of Khawaj Muhammad supra, it is held that right of appeal in both cases was available to the petitioners before appropriate appellate forum under Family Courts Act, 1964. The writ petitions in this view of the matter are not competent and are hereby dismissed."
In case 'Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others' (2002 MLD 784 Lahore) following dictum has been laid down in this regard:- "6. It is correct that under section 14(2)(c) of the Family Courts Act, 1964, no appeal lies from a decree passed by Family Court for maintenance of Rs. 500/- per month or less. The relevant section is reproduced:- 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 contention 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 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."
8. From the survey of above case law, it is crystal clear that the proposition involved in this writ petition is well settled and the appeal of petitioners before Additional District Judge was quite competent but the appellate Court, in oblivision of the same, in quite casual, callous and careless manner dismissed the appeal. Such conduct of appellate Court cannot be approved, which has resulted in refusal of right of petitioners, weaker segment of the society, who under the Constitution of Islamic Republic of Pakistan, 1973 and law of land need special protection, whereas they have to spend huge amount and await for long time to undo injustice meted out by them.
9. As such the instant petition is allowed, the impugned judgment passed by the Additional District Judge, Multan being without lawful authority and jurisdiction, having no legal effect is set aside, consequently the appeal of the petitioners will be deemed to be pending before learned District Judge, Multan, which shall be decided afresh after affording right of audience to the parties and their learned counsel. The learned District Judge, Multan may hear the appeal himself or entrust it to some other Court of competent jurisdiction. The parties and their respective counsel are C directed to appear before the learned District Judge, Multan on 30.03.2019, for further proceedings.
10. The Registrar of this Court shall circulate copies of this judgment amongst all District Judges/Additional District Judges in the Province for future guidance and strict adherence to the provisions of Section 14 of the Act, as interpreted by the case law. Any deviation of above law will be seriously viewed.