Farhana Bibi vs Judge Family Court etc.

Form No.HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

WP No.9741 of 2023/BWP Farhana Bibi versus Judge Family Court, etc.

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 12.12.2023 Miss Parveen Atta, Advocate for the petitioner.

Petitioner was married to respondent No.2 on 03.07.2017 and from the said wedlock, two daughters were born. Petitioner filed suit for dissolution of marriage on 02.11.2022 by claiming that initially behavior of respondent No.2 was cordial towards the petitioner, however, subsequently same changed and he started beating and torturing her on one pretext or the other without any reason and due to said cruelty, she often became unconscious, despite which she kept on living with the respondent and performed her conjugal duties, however, whenever she demanded maintenance, respondent No.2 used to beat her and on 30.01.2022 he turned her out of his house along with minors and orally pronounced talaq-e-salasa i.e. triple divorce in presence of residents of locality. The petitioner filed suit titled “Mst. Farhana Bibi v. Muhammad Ashiq” in Family Court concerned for recovery of maintenance and dower, which was decreed. Respondent No.2 also filed suit for restitution of conjugal rights in the Family Court concerned which was dismissed due to non-prosecution; thereafter, the petitioner raised demand with the respondent to give her talaq in writing, however, he refused to do so which necessitated filing of suit for

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dissolution of marriage on 02.11.2022, which suit has been decreed ex parte on 23.02.2023 in the following terms:

“Perusal of the record reveals that plaintiff on 07.02.2023 appeared before the court and got recorded her statement in which she categorically deposed that the plaintiff has developed severe hatred towards the defendant and she is not ready to live with him in any situation. She also appeared before the court as PW-1 and deposed same story as that of plaint. In documentary evidence, she produced certified copies of plaint of suit, execution petition and photocopy of Nikah Nama.

From the statement of the plaintiff, it is clear that amongst the parties it is impossible to live within the boundary prescribed by Al-Mighty Allah. Suit of the plaintiff for dissolution of marriage is hereby ex-parte decreed in favour of the plaintiff and against the defendant on the basis of Khula, subject to return or surrender or both return and surrender of whole dower. Decree sheet be drawn up accordingly. Copy of this judgment and decree be sent to concerned Union Council. No order as to costs.”

2.The petitioner states that as she had filed suit for dissolution of marriage on the basis of cruelty, therefore, decree is liable to be modified on the basis of divorce due to cruelty instead of divorce on the basis of Khula as determined by learned Judge Family Court, Ahmadpur East, Bahawalpur.

3.Learned counsel for the petitioner when confronted with the legal preposition that the order challenged before this Court is appealable, states that Section 14(2) of the Family Courts Act, 1964 provides that where marriage has been dissolved, no appeal lies

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there-against. The afore-referred assertion of the petitioner would have been correct if the husband had challenged the decree for dissolution of marriage as the afore-referred sub-section clearly bars appeal by the husband against decree for dissolution of marriage; however, said bar is not an absolute rule of law if appeal is filed by the wife challenging conditions mentioned in decree for dissolution of marriage. Reliance in this regard can be placed upon judgments reported as Abid Hussain v. Additional District Judge, Alipur, District Muzaffargarh and another (2006 SCMR 100) and Tayyaba Yunus v. Muhammad Ehsan and others (2010 SCMR 1403). It is pertinent to mention here that appeal is continuity of original proceedings of suit and the Appellate Court has jurisdiction to record finding of facts and decide question of law arising from the proceedings with all powers vested in it that could be exercised by the Trial Court.

4.In view of what has been discussed above, the prayer of the petitioner for converting the decree for dissolution of marriage on the basis of Khula to divorce on the basis of cruelty can be decided by the Appellate Court as the said decree is appealable at the instance of the petitioner/wife despite the fact that the respondent/ husband is precluded from challenging the same in terms of Section 14(2) of the Family Courts Act, 1964 which is aimed to put a clog on right of husband to challenge decree for dissolution of marriage and the object behind non-provision of appeal in case of dissolution of marriage was to protect women, an underprivileged and generally oppressed section of society, from prolong and costly litigation. Hence, it would be in the interest of

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justice, the petitioner may avail the said remedy before approaching this Court.

5.Consequently, this constitution petition, at this stage, is pre-mature and is disposed of with observation that the petitioner, if advised, may in the first instance seek remedy before the learned Appellate Court which court while dealing with the question of limitation is expected to also take into consideration the fact that the petitioner approached this Court by filing this constitution petition under misconception that under Section 14(2) of the Family Courts Act, 1964 appeal against the decree for dissolution of marriage was not maintainable.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Muzamil Mohsin/KMSubhani *

APPROVED FOR REPORTING.