ABUUL HAKEEM KHAN, C. J.---- Mst. Nasim Akhtar has moved this constitutional petition for issuance of appropriate Writ declaring the judgment and decree dated 17-11-1976 .Of District Judge, Mardan as illegal and void, and directing him further to draw fresh judgment and decide the case is accordance with law.
2. A reference to the impugned judgment and decree will show that Mst. Nasim Akhtar's suit for dissolution of her marriage with Noor Rehman (respondent No. 2) came up before Family Court Swabi (respondent No. 3) and the following issues were settled: -
(1) Whether Nikah of the plaintiff was performed when she was minor and she is, therefore, entitled to exercise her right of option of puberty ?
(2) Whether the defendant has not maintained the plaintiff for the last six years since the nikah ceremony ?
(3) Whether the defendant has not managed (sic) for the marriage of the plaintiff, if so, its effect ?
(4) Whether the defendant is a vagabond, if so its effect ?
(5) Whether the parties temperaments (ate) are too incompatible to live as husband and wife, if so, its effect?
(6) Whether the suit is within time ?
(7) Relief.
The learned Family Court, however, discussed issues Nos. 1 and 6 together and came to the conclusion that she had not repudiated her marriage by exer--cising the right of her option of puberty before attaining the age of 18 years and accordingly dismissed her suit without discussing the remaining issues.
4. On appeal before the District Judge by Mst. Nasim Akhtar, the learned counsel for Noor Rehman respondent submitted that appeal was not competent and in this respect he referred to an unreported judgment, delivered on 12-2-1975, of this Court in Writ Petition No. 46/75 Mst. Dilshad v.
Hassan Khan and another. This argument prevailed and the appeal was dismissed as incompetent by the impugned order.
5. Section 14 of the West Pakistan Family Courts Act which provides for appeal, has two parts. In first subsection, appellate Courts have been named. The second subsection, which reads as follows bars appeals in certain cases : No appeal shall lie from a decree passed by a Family Court.
(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolu--petition of Muslin Marriages Act, 1939.
(b) for dower not exceeding rupees one thousand ;
(c) for maintenance of rupee twenty-five or less per month.
It is hardly necessary for us to enter upon a detailed discussion, for the language of the Statute itself is unequivocal and is susceptible to the only interpretation that an appeal shall not lie where Family Court passes a decree for dissolution of marriage, excepting of course a decree for the reason specified in clause (d), item (viii) of section (2) of the Dissolution of Muslim Marriages Act, 1939, that is to say, a decree on the ground that the husband disposes of the property of the wife or prevents her from exercising of her legal rig4tg over it. It is noteworthy that the statute speeks about a decree for the dissolution of marriage and does not refer to a case where dissolution of marriage has not been granted. It comes to this that a bare reading of the section will show that where a decree for dissolution of marriage has not been granted, an appeal would be competent.
7. We are clear in our minds that the Legislature in its wisdom has only barred are appeal where a decree for dissolution of marriage has been granted but not otherwise. The intention of tree Legislature appears to be that though a husband affected by a decree for dissolution of marriage should have no right to appeal, the wife in case her suit had bean thrown out, should be able to seek further redress from the appellate Court.
8. In the instant case, as already mentioned, no decree for dissolution of marriage was passed by the Family Court and, therefore, the appeal of the aggrieved wife was not barred under subsection
(2) of section 14 (ibid). On the view of the matter that we take, we will accept this petition and set aside the impugned order of the District Judge, Mardan and direct him that he should hear the appeal and decide the same in accordance with law. Parties shall bear their own costs.