WIQAR AHMAD, J. Preliminary questions for determination in all these cases were found requiring answers and therefore these cases were clubbed together . The question framed for determination of this Court was relating to the scope and object of section 14 of the West Pakistan Family Courts Act, 1964 (hereinafter referred to as "the Family Act").
The specific questions earlier framed for determination in these proceedings are restated herein for ready reference;
(a) Whether appeal shall lie against dissolution of marriage made under clause (a) of item viii of section 2 of the Dissolution of Muslim Marriages Act, 1939 (hereinafter referred to as "the Dissolution Act") only, to the exclusion of any other order of dissolution of marria ge from the purview of an appellate Cour t (hereinafter referred to as "the appellate Court") established under section 3 of the Act?
(b) Whether writ petitions bearing Nos. 641-M and 1263-M of 2020 arising out of dissolution of marriage on the basis of cruelty , had been maintainable before this Court or an appeal lied before the Family Court established under the Act?
(c) Whether the learned appellate Court has competently changed the mode of dissolution of marriage through their judgments impugned in writ petition s Nos. 609-M/2015, 26-C/2019 and 947-M/2020 and whether the Court had been possessing such jurisdiction?
2. Mr. Abdul Halim Khan, Advocate had earlier been appointed as amicus curiae for assisting this Court on the questions mentioned above. He stated during the course of his arguments that a decree or order for dissolution of marriage has only been excluded from the purview of appeal but when a Court attaches any condition regarding payment or return of dower then the appellate Court may entertain an appeal, as such an order would be appealable under sub-section (1) of section 14 of the Family Act. The learned counsel representing various parties in these proceedings were also heard who have also been arguing on same line except learned counsel appearing on behalf of petitioners of writ petitions Nos. 641-M and 1263-M of 2020 who have stated that an appellate Court cannot entertain any appeal against disso lution of marriage except a dissolution made under clause (d) of item viii of section 2 of the Dissolution Act and therefore their writ petitions filed against judgments of Family Courts before this Court have been maintainable. Learned counsel appearing on behalf of petitioners of 'writ petitions Nos. 609- M/2015, 29-C/2019 and 947-M of 2020 have also stated during the course of their arguments that an appellate Court cannot change the mode of dissolution of marriage, nor can entertain any appeal in such a case and therefore the orders impugned in their writ petitions have been passed without jurisdiction.
3. We have heard arguments of learned amicus curiae, learned counsel for the parties and perused the record.
4. Sub-section (1) of section 14 of the Family Act has provided for the remedy of appeal in the following words; 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; and
(b) to the District Court, in any other case.
The section starts with non-obstante clause and provides that "a decision given or a decree passed by Family Court" shall be appealable to the next higher Court in the hierarchy as provided in clauses (a) and (b) of the sub- section. Sub-section (2) of section 14 of the Family Act has created certain exceptions to the remedy of appeal in the following words;
(2) No appeal shall lie from a decree passed by Family Court-
(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (a) 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.
Sub-section (1) of section 14 has provided a remedy for filing of appeals against the decisions and decrees passed by Family Court. The general rule provided therein has been to the effect that orders and decisions of the learned Family Court would be appealable. Exceptions to said rule has been provided in sub-section (2) and sub-section
(3) of section 14 of the Family Act. Maxwell on the Interpretation of Statutes (Twelfth Edition), by P.St. J.
Langan has given a para in Chapter (v) restrictive construction which had also been part of the, earlier editions of Maxwell. Same para may also be reproduced hereunder with benefit; "Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary , therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to, depart, not only from their primary and literal meaning,' but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature. It is regarded as more reasonable to hold that the legislature expressed its intention in a slovenly manner , than that a meaning should be given to them which could not have been intended."
Giving wordings of sub-section (2) of section 14 of the Family Act a liberal mean ing would present the result of ousting jurisdiction of an appellate Court empowered under the Family Act, while giving it a restrictive construction would entitle most of the parties aggrieved of judgment of learned Judge Family Court to have a right of appeal and a remedy by way of lodging an appeal under section 14 of the Family Act. Consequences of an interpretation should be considered and when so considered we come to the conclusion that a restrictive construction of sub- section (2) of section 14 of the Family Act would be beneficial for the system besides affording an important right of first appeal to a person feeling aggrieved of order of learned Judge Family Court where dissolution of marriage is also coupled with ancillary orders issued for payment or non-payment of dower etc. Even the presumption required to be taken while interpreting those laws which have the effect of ousting established jurisdiction would also require a restrictive construction of sub-section (2) of section 14 of the Family Act. Maxwell on the Interpretation of Statutes ibid have also made a mention of interpretation of section 12 (3) of the Matrimon ial Causes Act, 1950 in the case of "Dove v. Dove [1963] P. 321, per Ormerod L.J at P. 326" that if the spouse obtaining a decree nisi of divorced did not make an application for it to be made absolute, six months after the trial then the other spouse could make application within a further period of three months and, if the circumstances warranted, obtain a decree absolute. The Court of appeal held that this clause had not been ousting the jurisdiction of the Court to substitute a decree of judicial separation for a decree nisi. It was also held in said case that had it been the intention of the legislature to revoke this jurisdiction, it would have done it in a clearer way than by reference from this sub-section.
Further ahead in said treaties it was conc luded that where jurisdiction is conferred by an act then it must be given its full ef fect. Relevant part of the discussion is also reproduced hereunder; Where, however , the words of the Act clearly and unambiguously confer jurisdiction, they must be given their full effect. Proviso (2) to section 5 of the Debtors Act 1869 enacts that "for the purposes of this section any Court may direct any debt due from any person in pursuance of any order or judgment of that or any other competent Court to be paid by installments, and may from time to time rescind or vary such order ." It was held that although this did not authorize a country court judge to revoke an order of committal for debt (he then being functus officio), there was ample jurisdiction under the words of the section to enable the judge to increase or reduce the amount of the installments payable according to the circumstances existing from time to time.
In our jurisdiction also the taking of presumption against ousting established jurisdiction has also been accepted as an important canon of interpretation of statues. Hon'ble Islamabad High Court while giving its judgment in the case of "Oil and Gas Development Co. Ltd. v/s The sacked employers Review Board and others" reported as 2016 PLC (C.S.) 1318 has given a brief resume of the law existing on the subject in the following words; "29. The above principles and law regarding construing statutory provision couched in language ousting the jurisdiction of the Courts may be summarized as follows;-
(i) The legislature is competent to oust or exclude the jurisdiction of courts.
(ii) There is a presumption against the ouster of jurisdiction. Any law or statutory provision which denies access to the courts is to be construed very strictly and narrowly .
(iii) Ouster or exclusion of jurisdiction must be expressly and clearly implied and not readily inferred. The language used by the legislature ought to show express and unequivocal manifestation of the legislative intent to exclude the jurisdiction of the courts.
(iv) If the language is so clear and unmistakable that leaves no room for doubt as to the intention of the legislature ousting jurisdiction in all circumstances then that will be given effect to even in cases of mala fides and without jurisdiction would not be open to judicial review and the courts would not be concerned with the consequences.
(v) Ordinarily , unless the intention of the legislature is so clear that no other meanings can be given to the language used, the jurisdiction of the courts will not be ousted in three categories of decisions/orders i.e.
(a) without jurisdiction, (b) coram non judice and (c) tainted with mala fide.
(vi) Ordinarily , when the legislature declares an order or decision to be final, it has reference to such orders/decisions which is within the powers of the authority making it, the authority should have constituted in accordance with the statute, the person proceeded against should be subject to jurisdiction, the order passed or action taken should be such as could have been made under a statute and if these conditions are fulfilled then an omission or irregularity committed in following the statutory procedure will not be a suf ficient ground to avoid giving ef fect to the exclusion of jurisdiction."
We can therefore interpret sub-section (2) of section 14 of the Family Act narrowly . Placing of such narrow interpretation on clause (a) of sub-secti on (2) of section 14 would also be required because by giving it an extended meaning we would be depriving a party from the right of appeal which has repeatedly been held to be a substantive right. In case of depriving a party from right of an appellate forum, he or she may get prejudiced in their rights in the matter of acquisition or defence of their rights in subject matter of a suit before the Family Court. As held in an earlier judgment of this Court rendered in the case of "Mian Sharif Shah v/s Nawab Khan & 5 others" reported as PLD 2011 Peshawar 86. The remedy available under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 may not-be as open-ended and as beneficial as the remedy of appeal before an appellate Court, where the parties can re-agitate factual issues and an appellate court may reappraise the evidence on factual side.
Right of appeal is a substantive as well as vested right and same can only be taken away through express words and necessary intendment to said effect. An interpretation which advances such a right should therefore be preferred instead of the one which extinguishes it.
5. We may therefore interpret the exclusion provided in sub-section (2) narrowly . By such narrow interpretation the words shall be confined to its express meaning and nothing more can be read in part of the provision provided by said sub-section. When so read we find that any decision or decree of a Family Court shall be appealable except a decree for dissolution of marriage. In other words, it would mean that judgment or order of the learned Family Court shall be appealable except to the extent of dissolution of marriage. The question whether the parties should remain within the marriage tie or the tie should be dissolved would fall in the exclusive domain of learned Family Court.' If the Family Court dissolves a marriage such an order to the extent of its reversal by re-netting the marriage tie would be out of the purview of the appellate Court except in case of dissolution of marriage made under clause (a) of item viii of section 2 of the Dissolution Act, which has specifically been provided therein. The other two conditions provided there in clauses (b) and (c) are quite clear and have not been the subject of dispute in the instant petitions, and therefore requires no discussion. Same is the case with exclusion of jurisdiction of the appellate Court in the matters of interim orders passed by Family . Court which hardly requires any discussion. We would therefore confine ourselves to the exclusi on of right of filing appeal against the order of dissolution of marriage as provided in clause (a) of sub-section (2) of section 14 of the Family Act.
6. A similar approach has always been adopted by the Courts when they got confronted with a situation of maintainability of appeal before the appellate Court under section 14 of the Family Act. In the case of "Mst.
Rushda Zareen v/s Muhammad Saleh" reported as PLD 1976 Lahore 1327 Hon'ble Lahore High Court had made a split in decision of dissolution of marriage on the ground of Khula with an order for return of dower for the purpose of identifying the segregated part of decision and declaring it appealable under section 14 of the Family Act. Para 4 of said judgment contained relevant findings of the Court in this regard, which are reproduced hereunder for ready reference; "4. In this case the learned trial judge decided issue No. 7 on question of Khula in favour of the petitioner .
In a suit for dissolution of marriage on ground of khul'a it is not unusual to spit up the controversy in the issues; (i) As to whether the wife is entitled to dissolution on ground of khul'a? and (ii) if she is so entitled, whether the husband is not entitled to return of the dower if paid and other benefits received by the wife. In case the suit is decreed on ground of khula the learned trial Judge then proceeds to consider the next issue, of return of benefits/dower and gives a separate decision thereon. If Family Judges proceed in this manner , in every suit for dissolution of marriage on ground of khula, there could be a decree for dissolution of marriage and a separat e decision on question of return of benefits either in favour of the decree-holder or against her. Looked at in this light and with the above analysis, the impugned judgment consists of a decree for dissolution of marriage on ground of khul'a; and a decision against the petitioner and in favour of the respondent, debarring her from recovery of dower which allegedly was fixed at the time of marriage. In other words in this case the judgment consists of two parts; (i) a decree for dissolution of marriage; and (ii) a decision qua dower .
Both are final and substantial in character and caused grievance (to one or the other party) of such a type which can be brought before an appellate Court."
Almost similar view has been reiterate d by Hon'ble Lahore High Court in the case of "Bashira bibi v/s Muhammad Rafia & 2 others" reported as 1982 CLC 1200 , the case of "Muhammad Shafi v/s District Judge, Gujrat & another" reported as 1982 CLC 2057 , the case of "Farzana Shaheen v/s Malik Muhammad Iqbal" reported as 1989 MLD 3888 , the case of "Naila Azmat vs Judge, Family Court and others" reported as 1999 MLD 3090 , the case of "Mst. Muazama Batool v/s District Judg e, D.G. Khan & 2 others" reported as 2003 CLC 1262 , the case of "Muhammad Shaban v/s Judge Family Court & others" reported as 2003 YLR 2708 , the case of "Shakeel Saood Khan v/s Rizwana Khanum & another" reported as PLD 2012 Lahore 43 and the case of "Shazia Samad v/s Malik T ariq Mehmood Akhtar & another" reported as 2015 MLD 210 .
7. This Court in its earlier judgment given in the case of "Chanzeb & another v/s Mst. Yasmeen Bibi & others" reported .as 2015 MLD 1140 as well as the case of "Mst. Shahida v/s Sardar Shah & 2 others" reported as 2018 MLD 146 had also recorded somewhat similar observations.
8. We also stand guided by opinion of the Hon'ble Supreme Court of Pakistan in the instant matter . In the case of "Abid Hussain v/s Additional District judge, Alipur District Muzaf farearh & another" reported as 2006 SCMR 100 Hon'ble Apex Court had observed that when a Court refuses grant of decree for dissolution of marriage to a woman it may file appeal there-against under section 14 of the Family Act. Here again the provision excluding the right of appeal, had been construed narrowly . In the case of "Tayyaba Yunus v/s Muhammad Ehsan & others" reported as 2010 SCMR 1403 Hon'ble Supreme Court had held that a condition attached to a decree, which in the given case had been refusal of grant of dower to the wife, was held to be appealable under section 14 of the Family Act and the bar contained under clause (b) of sub-section (2) was not found applicable therein. Relevant part of observations of the august Court is reproduced hereunder for ready reference; "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 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 amou nt 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 khula. 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 ."
In the case of "Saif-ur-Rehman v/s Additional District judge Toba Tek Singh & others" reported as 2018 SCMR 1885 Hon'ble Supreme Court had held that purposive rather than a literal approach was to be adopted while interpreting statutes. It was also held that an interpretation which advanced the purpose was to be preferred over an interpretation which defeated its objec ts. In this case also the Hon'ble Supreme Court had relied upon earlier judgment given in the case of Abid Hussain Supra as well as similar observations recorded by Hon'ble Lahore High Court in the cases mentioned therein for reaching the conclusion that appeal of a wife to whom claim of dower or dowry had been partially or entirely declined would be maintainable under section 14 of the Family Act. We can therefore safely held that the words provided in clause (a) for exclusion of jurisdict ion shall narrowly be interpreted and when so interpreted the words "dissolution of marriage" used in clause (a) of sub-section (2) of section 14 of the Family Act would mean a bare decree for dissolution of marriage which may not be appealed against with the aim of its reversal. Any string attached to such a decree, be it grant or refusal of dower or any other condition would be appealable under section 14 of the Family Act.
9. We accordingly answer question (a) in terms that an appeal would lie against grant or refusal of dower when it is made along with or without dissolution of marriage. A decree for dissolution of marriage simpliciter and without any condition would not be appealable except the dissolution of marriage made under clause (a) of item (viii) of section 2 of the Dissolution Act.
(b) Whether writ petitions bearing Nos. 641-M and 1263-M of 2020 arising out of dissolution of marriage on the basis of cruelty , had been maintainable before this Court or an appeal lied before the Family Court established under the Act?
This question had mainly arisen because of a misprint in a number of publications where instead of clause (a) of sub-section (2) of section 14 of the Famil y Act it had been stated that an appeal 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 Act, 1939 would not lie. Clause (d) of item (viii) of the Dissolution Act has wrongly been mentioned there. This type of typographical mistake have also led the learned counsel for petitioners to file two writ petitions before this Court directly , instead of filing appeals despite the fact that marriage had been dissolved by way of cruelty through the impugned orders in both the cases. Item (viii) of section (2) of the Dissolution Act had provided for following six cases of cruelty which might be made the basis for dissolution of marriage;
(viii) that the husband treats her with cruelty , that is to say ,
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
(b) associates with women of evil repute of leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her exercising her legal rights over it, or
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran, On checking various publications, it was found that somewhere clause (a) has been mentioned while in other books or publications clause (d) of item (viii) of section (2) of the Dissolution Act has been mentioned. The mistake had probably been originally made in the statute part of PLD publication published as PLD 1965 Central and Provincial Statues 305 wherefrom it might have been taken by various publishers, repeating same mistake. In the former N.W.F.P now Khyber Pakhtunkhwa Code (fifth volume) clause (a) of sub-section (2) of the Family Court Act has been given as follows; S. 14(1) appeal
(2) No appeal shall lie from a decree passed by Family Court;
(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (a) of item
(viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939.
(b)...
(b)...
Khyber Pakhunkhwa Code published on official website of the government has also been carrying clause (a) of item (viii) of section (2) and it had not been bearing entry of clause (d) of item (viii) of section (2) of the Dissolution Act. Similarly , website of the government of Punjab has also been containing similar words. In the Baluchistan Code also we find similar words used in its volume (II). We can therefore safely say that it had been a typographical mistake on part of some of the publishers where clause (d) has been mentioned. This explanation was required as this question had directly been relating to maintainability of the two writ petitions. The question is therefore answered to the effect that the two writ petitions bearing Nos. 641-M and 1263-M of 2020 arising out of orders of dissolution of marriage on the basis of cruelty as defined in clause (a) of item (viii) of section (2) of the Dissolution Act, had not been maintainabl e before this Court as a remedy of appeal had expressly been provided in sub-section (2) of section 14 of the Family Act. Office is therefore directed to return the two writ petitions to the respective petitioners for presentation before an appellate forum. Petitioners if may so advised seek condonation of delay before the learned appellate Court, on the ground of confusion arising out of the above-mentioned mistake in certain publications.
(c) Whether the learned appellate Court has competently changed the mode of dissolution of marriage through their judgments impugned in writ petition s Nos. 609-M/2015, 26-C/2019 and 947-M/2020 and whether the Court had been possessing such jurisdiction?
When we have answered question (a) in terms that an appeal regarding any cond ition or grant or refusal of dower lies under section 14 of the Family Act, then the natural corollary would be that the appellate Court would be deemed clothed with the powers of reversing such a condition attached to a decree of dissolution passed by learned family Court below . The condition of grant of dower attached with a decree for dissolution may be set aside by changing mode of dissolution of marriage from one to another . Similarly , a decree for dissolution of marriage on the basis of Khula and the refusal of Judge Family Court to grant a decree for award of dower , may be converted to dissolution of marriage on any other ground available in the case which would entitle a wife to the grant of decree for dower .
10. The change of condition attached to the decree would require altering the mode of dissolution of marriage.
Without such powers with the learned appellate Court filing of an appeal under section 14 of the Family Act would become meaningless. Even otherwise appeal is considered to be continuation of original proceedings and an appellate Court would be presumed to be having all the powers of an original forum unless specifically restricted by legislature by express words and neces sary intendment. Hon'ble Supreme Court of Pakistan while giving its judgment in the case of "Ghulam Qadir and others v/s Sh. Abdul Wadood and others" reported as PLD 2016 Supreme Court 712 has held that appeal was a continuation of suit and during appellate proceedings the entire matter stood reopened. Relevant part of observations of the Hon'ble Supreme Court is reproduced hereunder for ready reference; "An appeal is the recourse adopted by a person to a superior court vested with the jurisdiction to reconsider a decision of a subordinate court, with the aim of attaining a reversal/modification of such decision. An appeal is not merely a matter of procedure but a substantive right. It is the continuation of .a suit and during appellate proceedings the entire matter stands reopened. The jurisdiction of an appellate court can be invoked by a person who believes that the subordinate court has erred in law or in fact whilst passing the judgment/order under appeal."
This Court has also held in its earlier judgment rendered in the case of Pervaiz Ahmad vs Muhammad Khursheed Khan" reported as 2018 CLC 1851 that an appellate Court possesses same powers as held by a Court in its original jurisdiction, for the reason that appeals had been a continuation of suit. Further reliance in this respect may also be placed on judgment of Hon'ble Supreme Court of Pakistan rendered in the case of "Muhammad Ali v/s province of Punjab and others" reported 2005 SCMR 1302 . We do not find other provision in the Family Courts Act, 1964 intending to limit powers of an appellate Court and therefore while hearing an appeal against judgment of Family Court an appellate Court would be having the full spectrum of powers wherein it can make any lawful order in resp6ct of which it has the competency to entertain an appeal. An appellate Court can therefore convert a decree for dissolution of marriage from one mode to another . Question (c) is accordingly answered in terms that an appellate Court may change the mode of dissolution of marriage.
11. After determinations of all the above mentioned questions, office shall fix writ petitions Nos. 609-M/2015, 29- C/2019, 766-M and 947-M of 2020 before appropriate benches for hearing on merits. Writ petitions Nos. 641-M &.
1263-M of 2020 however stand returned as ordered above.