MUHAMMAD TARR) AFRIDI, J.- Through the instant writ petition under Article 199 of the Constitution, the petitioner has prayed for the following relief: For the above mentioned reasons, it is, therefore, respectfully prayed that on acceptance of this writ petition, the impugned judgment and order of both the learned courts below may kindly be set aside and dismiss the suit of respondent / plaintiff since the plaintiff has not adopted proper procedure for claiming dissolution of marriage on the basis of impotency according to the Dissolution of Muslim Marriages Act, 1939. Other relief, if any, may also be granted.
2. The brief but relevant facts, as pleaded in the writ petition, are that respondent No.1 / plaintiff (hereinafter referred to as "the respondent") instituted a family suit against the petitioner / defendant (hereinafter referred to as "the petitioner") for the recovery of 05 Tolas of gold as dower, maintenance, dowry articles, and dissolution of marriage on the ground of impotency. During the trial, the petitioner filed an application before the Family Court seeking dismissal of the suit on the ground that the respondent had not adopted the procedure prescribed under the Dissolution of Muslim Marriages Act, 1939 for seeking dissolution on the basis of impotency. After hearing the parties, the Family Court, vide its order dated 21.11.2024, dismissed the application, holding that since pre-trial reconciliation had failed and as the petitioner would have every opportunity to prove his potency by producing evidence, it would be in the interest of justice to decide the case on merits rather than on technicality. The petitioner preferred an appeal against the said order before the Additional District Judge-V, Bannu, which was disposed of vide judgment dated 24.02.2025, directing the Family Court to re-decide the application in accordance with Section 2(ix)(c) of the Dissolution of Muslim Marriages Act, 1939 at the time of final disposal of the suit. Hence, this writ petition.
3. Arguments heard. Record perused.
4. Section 14 of the West Pakistan Family Courts Act, 1964 governs appeals from decisions and decrees of Family Courts. Subsection (1) allows an appeal against a decision or decree passed by a Family Court, whereas, subsection (3) expressly bars an appeal or revision against an interim order. The superior courts have consistently held that the words "decision" and "decree" as used in Section 14(1) are to be read ejusdem generis, and only such decisions are appealable which finally determine the substantive rights of the parties. Reference can be made to the case of Syed Muhammad Raza Shah v. Sayeda Salma Gilani and another (PLD 1976 Lahore 1015), wherein it was ruled:
7. I agree with the learned counsel for the respondent that the word "decision" must mean a State of facts judicially determined. I also agree with his argument that if the intention of the Legislature be to use the word "decision" as inclusive of interlocutory orders, the scope of section 14 cannot be narrowed down by reference to analogies from other enactments. We have to interpret the word 'decision' by reference to the provisions of the Act keeping in mind its object. It cannot be doubted, as held in Qudrat Ullah v. Iqbal Begum and Wajahat Ali v. Ghazala that the purpose of the Act is to shorten litigation. The preamble of the Act also provides that it is enforced for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith. With this end in view it has been specifically laid down that except for sections 1 and 11 of the Code of Civil Procedure, no other provision of that Code or any provision of the Evidence Act provides a procedure of its own which is as free from technicalities as possible.
Before the Law Reforms Ordinance, 1972, was enforced, the Code of Civil Procedure read with West Pakistan Civil Courts Act, provided two appeals against a decree in cases where an appeal was competent before the District Judge. It also provided under section 115 for exercise of revisional jurisdiction against orders which amounted to case decided. Its section 104 and Order XLIII, rule 1 make some interlocutory orders appealable. After the enforcement of the Law Reforms Ordinance, second appeal is competent only in cases where the value of the property involved exceeds Rs.
2,000 but the appellate decrees of the District Judge even now are subject to the revisional jurisdiction of the High Court. By providing in section 17 of the Act that C.P.C. shall not apply to proceedings before the Family Court, the guarantee of a dual appeal or of revisional jurisdiction against all orders amounting to cases decided has been taken away. Section 14 of the Family Courts Act provides only for one appeal. Its subsection (2) makes some decrees un-appealable and final. These provisions read with the objective of the Act described in the preamble is an intrinsic aid to the interpretation of the word "decision". I agree with the argument of the learned counsel for the petitioner that it will create an anomaly if it is held that on the one hand the matters falling under subsection (2) of section 14 are not appealable and on the other hand all the interlocutory orders which may culminate in decrees governed by subsection (2) should be held to be open to appeal. The wider interpretation will defeat the object of expeditious disposal of the suits since such disposal will be obstructed like civil suits, if every order which amounts to a case decided within the meaning of section 115, C. P. C. is held to be appealable under section 14 of the Act. The expeditious disposal will be indefinitely obstructed by the process of numerous appeals against interim orders. In these circumstances it will be unreasonable to hold that the Legislature which bad whittled down the right of appeal against final decrees and had taken away, even the revisional jurisdiction which it is within the discretion of the revisional Court to exercise, would vest the litigants with a right of appeal against the same category of orders which under the Code of Civil Procedure are revisable. A similar question arose on the interpretation of section 15 of the West Pakistan Urban Rent Restriction Ordinance before the Supreme Court in Ibrahim v. Muhammad Hussain (1). A view which was contrary to the prevailing view was taken by their Lordships and it was held that an interlocutory order for deposit of rent passed under section 13(6) of the Ordinance was not appealable under its section 15.
8. The way the words "decree" and "decision" have been used in section 14, shows that the word "decision" should be read as ejusdem generis to the word "decree". If it is so read, it will point out to only such decrees being appealable which finally determine the proceedings before the Family Court.
5. In the instant case, the impugned order passed by the Family Court did not finally adjudicate upon any substantive right of the parties. It merely declined to summarily dismiss the suit at a preliminary stage and directed that the case be decided on merits after recording of evidence. The petitioner was not deprived of his right to produce evidence to prove his potency. Therefore, the order was interlocutory in nature and as such, not appealable in view of Section 14(3) of the Act. It is settled law that where the statute excludes a remedy of appeal or revision against an interlocutory order, the said order cannot be challenged through a writ petition under Article 199 of the Constitution. In Saghir Ahmad Naavi v. Province of Sindh (1996 SCMR 1165), the Supreme Court held: The statute excluding a right of appeal from the interim order cannot be passed by bringing under attack such interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders.
6. Similarly, in Rashid Kareem v. Judge Family Court and others (2010 YLR 1702 Lahore), the Lahore High Court held:
6. The impugned order has been passed under the relevant law which could not be assailed in writ petition because when a statute does not provide an appeal against interlocutory order, same could not be challenged by way of Constitutional petition as it will amount to negate the provision of statute. An appeal is a statutory right which has not been provided under the Family Courts Act in relation to interim order passed by the Family Court. The appropriate course for the petitioner is to contest the suit and to wait for the final order/judgment of the Family Court. Thereafter, if the petitioner is not satisfied, he can assail the judgment as well as interim order in appeal.
7. In the present case, the petitioner has an adequate and efficacious remedy of challenging the final decision of the Family Court, if aggrieved, after conclusion of the trial. Entertaining an appeal or constitutional petition at such premature stage would circumvent the express bar under Section 14(3) of the Act undermining the objective of expeditious trial.
8. For the foregoing reasons, it is held that the order dated 21.11.2024 passed by the Family Court was interlocutory in nature, as it did not finally determine any substantive rights of the parties, but merely regulated the manner in which a fact related to the potency of the petitioner was to be proved during trial. In terms of subsection (3) of Section 14 of the West Pakistan Family Courts Act, 1964, no appeal or revision lies against such an interlocutory order. Therefore, the appeal preferred by the petitioner before the Appellate Court was incompetent, and the judgment dated 24.02.2025 passed thereon was without jurisdiction and coram non judice. It may not be out of context to mention that once this Court notices that a judgment has been passed by a subordinate court, which, though not independently challenged before this Court, suffers from an inherent lack of jurisdiction, it cannot turn a blind eye to such legal infirmity. A judgment rendered by a forum lacking jurisdiction is a nullity in the eyes of law and of no legal consequence. It is for this reason that the appellate judgment dated 24.02.2025 is declared to have been passed without lawful authority and is of no legal effect.
9. Consequently, since the genesis of this writ petition lies in an interlocutory order passed during the pendency of proceedings before the Family Court, it is not maintainable and is hereby