NAZIR AKHTAR, J.-- This Intra-Court appeal arises out of a suit for dissolution of marriage filed by the appellant before the Judge Family Court, Multan. This suit was tried along with two other suits: one filed by the appellant for the grant of maintenance and the other by the respondent for restitution of conjugal rights. The appellant had raised several grounds for claiming dissolution of marriage including cruelty, non-maintenance and hatred against the respondent making it impossible for her to live with him within the limits of Allah. The last mentioned ground was meant for laying a foundation for grant of Khula.
2. The learned Judge Family Court recorded the evidence of the parties and decreed the suit for dissolution of marriage on 4-10-1986 only on the ground of Khula subject to the condition that the appellant should return 7-1/2 Marlas of land, 7-1/2 Tolas of gold ornaments and cash of Rs. 7,000/- to the respondent. The connected two suits were dismissed .By the learned Judge Family Court.
3. Aggrieved by the condition attached to the grant of Khula, the appellant filed Writ Petition No. 1368/86 in this Court which was initially admitted to regular hearing. At the time of final hearing of the writ petition, Malik Muhammad Iqbal respondent abandoned his claim for cash payment of Rs.
7,000/-. The decree was accordingly modified and the writ petition was dismissed on 1-12-1987. The present Intra-Court appeal is directed against the said judgment of the learned Single Judge.
4. The first hurdle in the way of the appellant is about competence of the present Intra-Court appeal. The learned counsel appearing for the appellant submits that the appellant had no remedy against the judgment and decree of the learned Judge Family Court except the remedy by way of a constitutional petition under Article 199 of the Constitution of Pakistan. He further submits that no appeal was competent against the decree passed by the Family Court for dissolution of marriage in the instant case. He has pointed out that the right of appeal has been given to the husband in case the marriage is dissolved for reasons specified in clause (d) of Item (viii) of Section 2 of the Dissolution of Muslim Marriages Act, 1939. According to the learned counsel the wife had no right to file appeal in view of the provisions of sub section (2) of section 14 of the Punjab Family Courts Act, 1964. Hence, according to the learned counsel present Intra-- Court appeal is maintainable under the law.
5. We have considered the contentions raised by the learned counsel for the appellant and find no substance in the same. It is true that no appeal has been allowed from a decree passed by a Family Court for dissolution of marriage except for reasons specified in clause (d) of Item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939. However, section 14 of the Family Courts Act, 1964, clearly provides for appeals against the decisions as well as decrees passed by a Family Court. The condition attached for grant of Khula amounted to a decision which could be challenged before the court without impairing the integrity of the decree for dissolution of marriage. This question was earlier considered in Bushra Zarrin v. Muhammad Saleh (PLD 1976 Lahore 1327) and Bashir Bibi v. Muhammad Rafiq and two others (1.982 CLC 1200). It was held in the first mentioned case: "In case the suit was decreed on ground of Khula, the learned trial judge then proceeds to consider the next issue, of return of benefits/dower and give 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 separate 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 Khula; 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. Section 14 of the Family Courts Act provides for appeal against "decision" as also against "decrees" unless a decree falls within the prohibition contained in subsection (2) thereof. In this case the decree undoubtedly is not appealable because it falls within the prohibition in sub-- section (2) (a) of section 14; but the decision qua the dower is appealable under subsection (1) of section 14. Similarly in the other case it was held that the decision of the Family Court regarding return of property to the husband was appealable". The same view was followed in Bashir Bibi's case reported in 1982 CLC 1200. Even if there be any doubt about the competence of the appeal, the same has to be resolved in favour of the existence of right of appeal.
6. We respectfully follow the view taken in the above-mentioned judgments and hold that a wife, undoubtedly, has a right to challenge the condition attached to a decree for dissolution of marriage on the basis of Khula regarding the return of benefits to the husband. It is clearly deducible from a bare reading of section 14 that all decisions of Family Courts are appealable to the High Court where the Family Court is presided over by a District Judge or an Addl. District Judge and in other cases to District Court. It is only in certain cases that a bar has been provided against appeals as specified in sub-section (2) of section 14 of the Family Courts Act, 1964. There is, obviously, no bar for challenging a decision given by a Family Court for return of benefits to the husband in a decree for dissolution of marriage passed on the ground of Khula. As the law provided an appeal before the District Court, which remedy the appellant failed to avail of, the present ICA is not maintainable under the provisions of section 3 of the Law Reforms Ordinance, 1972. It has been clearly laid down in section 3 of the said Ordinance that the right of appeal shall not be available if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provides for at least one appeal or one revision or one review to any Court, tribunal or authority against the original order.
7. For the reasons stated above this ICA is incompetent and is dismissed as such. However, the parties are left to bear their own costs.
H.B.T./F-150/L