MUHAMMAD SHAFI vs DISTRICT JUDGE, GUJRAT AND ANOTHER

Razia Begum respondent filed a suit against the petitioner for dissolution of marriage. Inter alia on the ground of 'khula'. Which was decreed on 17-6-1980, by the learned Judge Family Court, subject to the condition that she would deposit a sum of Rs. 10,000 in the Court, for the payment to the petitioner, as `zar-e-khula'. Dissatisfied with the fixation of the amount at Rs. 10,000, she preferred an appeal. It was accepted by the learned District Judge by his judgment dated. 23-11-1981 and 'zar-e-khula' reduced to Rs. 32 only. The validity of this judgment has been called in question by the petitioner through this writ petition.

2. Relying on section 14 (2) of the Family Courts Act, 1964 it was argued that as the marriage was dissolved, the respondent had no right of appeal against the judgment and decree of the learned Family Court. It was thus contended that as the appeal was not competent, the learned District'

Judge in entertaining it acted without jurisdiction. In support of his submission the learned counsel referred to Mst: Nasim--Akhrar v. Noor Rehman's and two others (1).

3, A reference to section 14 of the Family Courts Act, 1964 would indicate that under subsection (1)

(a), a decision given or a decree passed by a Family Court is , appealable. However, subsection (2) ordains that no appeal lies from a decree for dissolution of marriage except in the cases enumerated in clause (a) thereof: The ground as to the (1) IV IL D 1978 Pesh. 30 grant of divorce on the basis of `khula' is reflected in issue No. 4 which is reproduced below :- "Whether the plaintiff is entitled for dissolution on the point of Khula, if so, on what terms and conditions ? OPP."

It is obvious that this issue has two parts ; firstly the respondent's entitlement for dissolution of marriage on the basis of `khula' and secondly on what terms and conditions `khula' may be allowed. While deciding this issue the learned Judge Family Court has passed a decree for dissolution of marriage in favour of the respondent but simultaneously has given a decision; fixing `zare khula' at Rs. 10,000. Undoubtedly no appeal lies against the decree for dissolution of marriage, but the decision as' to the fixation of the amount of the consideration, payable to the petitioner for.

The respondent's release from the marriage tie, is appealable under subsection (1) of Section 14.

This view finds support from Mst. Rushda Zareen v. Muhammad Saleh (PLD 1976 Lah. 1327).

4. In the precedent, cited on behalf of the petitioner, a were whose suit for dissolution of marriage, had been dismissed by the Family Court, ,preferred an appeal. The husband raised an objection to its maintainability which was upheld by the learned District Judge and her appeal dismissed. This dismissal was assailed by her through judicial review. Upon the language of section 14, a Division Bench of the Peshawar High Court, maintained that since no decree for dissolution of marriage was passed by the Family Court, the appeal of the aggrieved were was not barred. This decision has absolutely no applicability to the instant case.

5. 1 respectfully agree with the view taken by the learned Single Judge in Mst. Rushda Zareen v.

Muhammad Saleh and hold that the decision of the learned Judge Family Court. Regarding the fixation of`zara khula' could be subjected to appeal and in this respect the impugned judgment has been passed by the learned District Judge with lawful authority.

There is no merit in this writ petition, which is hereby dismissed with costs.