NOOR JOHAN ALIAS TASLEEM BEGUM Versus MUHAMMAD ARSHAD

1. This petition is directed against the order, dated 25‑3‑1985 passed by the District Judge, Karachi, whereby the Family Appeal No. 65 of 1985 filed by the petitioner was dismissed.

2. The facts which give rise to this petition are that the respondent No. 1 and the petitioner were married at Chittagong and thereafter settled in Faisalabad about 15 to 16 years. The petitioner procreated two female children namely Shamshad Begum aged about 15 years and Zaitoon Begum aged 4 years. The petitioner alongwith her two minor children remained and lived in native village Chak No. 70 Thekriwala Bungalow. The respondent No. 1 became the prisoner of war and was released on 23‑9‑1973 and as such he came back to his home in the District Faisalabad and after staying with the petitioner for two or three months, he came back to Karachi leaving the said wards and the petitioner. The petitioner continued to be supported by her relatives but he did not provide any maintenance to her. The respondent filed suit under the Guardians and Wards Act at Karachi and stated that the ordinary residence of the said wards was within the jurisdiction of Karachi and the family Court passed an order for the production of the said wards before the Guardians Judge, Karachi. The petitioner filed an application under section 9 of the Guardians and Wards Act challenging the jurisdiction. The Senior Civil Judge by his order, dated 4‑4‑1985 issued search process under section 100, Cr.P.C. The petitioner being aggrieved against the decision, filed appeal before the District Judge, Karachi. The learned District Judge by his order, dated 25‑3‑1985 dismissed the appeal and held as follows:‑‑

3. "Mere direction to produce a minor in Court if given by a Family Court of competent jurisdiction; is not a decision within the meaning of section 14 of West Pakistan Family Courts Act. The appeal is not maintainable. It is rejected."

4. The petitioner being aggrieved against the order, dated 25‑3‑1985 of the learned District Judge, Karachi, has preferred this Constitutional petition on the grounds mentioned in the memo. of petition.

5. Mr. Mahboob Ellahi Khan the learned counsel for the petitioner has contended that the order, dated 25‑3‑1985 is without lawful authority and the appeal is maintainable under section 14 of the Act.

6. On the other hand Mr. Ch. Muhammad Saddiq has fairly conceded that the appeal is competent against the decision and has submitted that the petitioner be allowed and the appeal be remanded to the learned District Judge, Karachi for disposal in accordance with law.

7. It is pertinent to reproduce section 14 of the Family Courts Act which read as under:‑‑

8. "Appeal.‑‑(1) Notwithstanding anything provided in any other lathe time being in force, decision given or decree passed by a Family Court shall be appealable;

(a) to the High Court where the Family Court is presided over by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status of a District Judge or an Additional District Judge; and

(b) to the District Court, in any other case.

(2) No appeal shall lie from a decree 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 Dissolution of Muslim Marriages Act, 1939;

(b) for dower not exceeding rupees one thousand;

(c) for maintenance of rupees twenty‑five or less per month."

9. A bare perusal of section 14 of the Act shows that appeal has not only against a decree passed by a family Court but also against "a decision given" and clearly the order under section 12 of the Guardians and Wards Act was a decision given. The Hon'ble Supreme Court in the case of Kandawalla & Co. v. Rashiddudin 1969 S C M R 721 laid down the following dictum:‑‑

10. "The words used in section 15 are 'an order', but learned counsel for the petitioner does not find it possible to contend that these words are to be interpreted in their wide generality and he accepts that some qualification has to be added to these words for otherwise an order adjourning a case or summoning a witness would also be subject to appeal and learned counsel agrees that this could not be the intention. The High Court has in a Full Bench case reported as Muhammad Amin v. Jamshed Ali held that an order in the section means any order which is covered by some provision in the Rent Restriction Ordinance. This appears prima facie to be a reasonable qualification to add to 'an order'."

11. It will be seen that although their Lordships did agree that all orders could not be appealable they held that only such orders will be appealable as are covered by some provision of the Rent Restriction Ordinance. Applying such reasoning to the Family Courts Act such orders as are provided for the Act, I think, be held appealable. An order of the kind which is now before me is clearly provided for under section 12 of the Guardians and Wards Act and, therefore, by reference I think in the Family Court Act itself. I am quite unable to see, therefore,, why such an order should not be appealable.

12. In my opinion, the word "decision" as used in section 14 of the Act is comprehensive enough to include every order made under section 12 of the Act.

13. For these reasons, I accept this petition, set aside the order dated 25‑3‑1985 passed by the learned District Judge, Karachi. The Family Appeal No. 65 of 1985 is remanded to the District Judge, West Karachi, for disposal on merits in accordance with law. In the peculiar circumstances of the case the parties will bear their own costs.

14. H . B . T . Petition accepted.