' With the concurrence of learned counsel for the parties, this case is being treated as "Pacca" case.
2. Brief facts of the case are that petitioner filed a suit for Dissolution of Marriage against respondent No,3, which was contested and ultimately the same was decreed by the learned Judge Family Court vide his judgment and decree dated 11-4-2000, on the basis of "Khula'" and the consideration for Kula' was held to be the house purchased by respondent No,3 in the name of petitioner as her dower and ultimately it was held that respondent No,3 will be considered the owner of the said house. This judgment and decree was assailed by the petitioner through an appeal. The same was dismissed by the learned District Judge vide his judgment and decree dated 10-1-2001 on the short ground that appeal was not competent.
3. Learned counsel for the petitioner contends that imposition of condition in the instant case by the learned Judge Family Court, brings the case of the petitioner within the ambit of section 14(1) of the Family Courts Act, 1964, therefore, the same was appealable. Relies on PLD 1976 Lahore 1327; 1989 ALD 330(1); 1991 CLC 1328 and 1999 M LD 3090.
4. On the other hand, learned counsel for respondent No,3 has supported the impugned judgment and decree passed by the learned Appellate Court. He has relied upon a judgment reported in PLD 19.80 Peshawar 246.
5. I have considered the arguments of learned counsel for the parties.
6. No doubt, an appeal in the case of a decree for dissolution of marriage except in the case falling under clause (d) of Item No,(viii) of section 2 of Dissolution of Marriage Act, 1939, is not available and undoubtedly, this case does not fall in the said category. Therefore, in the ordinary sense no appeal was competent but since the learned Family Court has attached a condition, whereby a house given to the petitioner in consideration of her dower by respondent No,3 has also been adjudicated upon and the same has been determined as a consideration of `Khula'; therefore, to this extent, the order of the learned Family Court would fall within the parameter of section 14(1) of the Family Courts Act, 1964. Looking it from another angle, it is not the decree of dissolution of marriage which is being challenged through appeal, it is only the condition, which is being assailed through the said appeal, therefore, the case would not fall under section 14(2)(a) of the Family Courts Act, 1964. It would squarely fall within subsection 1 of section 14 of the Family Court Act.
Dower is a right of the woman, she can claim her right of dower if not paid or given to her through a separate suit and if such a suit for recovery of dower is decreed or dismissed, the same is appealable. In the instant case, the right of dower has been adjudicated upon by the learned Family Court and a decision was rendered thereon. For this reason as well, the condition imposed can be safely termed to be falling within the parameters of subsection (1) of section 14 of the Family Court Act. The judgment cited by the learned counsel for the respondent is not attracted in the instant case because no such condition was under consideration in the said judgment and is thus distinguishable from the facts of the instant case.
7. For what has been stated above, I accept this writ petition. The order passed by the learned District Judge dated 10-1-2001 is declared to be illegal and without lawful authority. The appeal filed by the petitioner shall be deemed to be pending before the learned District Judge, who shall dispose of the same after hearing the parties in accordance with law. No order as to costs. Parties shall appear before the learned District Judge on 12-12-2002.