NAILA AZMAT vs JUDGE FAMILY COURT and others

ORDER

' I had issued pre-admission notice to Mian Asif Ali Karam respondent No, 2 who is represented by his counsel. During the course of proceedings, it transpired that another Writ Petition. No, 18402 of 1998 has been filed by the respondent No,2 as well in which pre-admission notice has been issued to Mst. Naila Azmat petitioner herein.

2. A preliminary objection has been raised by learned counsel for the respondent that under Section 14(2)(a), the petitioner has a remedy of appeal before the learned Appellate Court which in the instant case would be before learned District Judge. The plea raised in this behalf is that although under section 14(2)(a) of West Pakistan Family Courts Act, 1964, ordinarily a decree of dissolution of marriage cannot be challenged in appeal except the cases covered by clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939. He, however, distinguishes the present case on the ground that dissolution in this case is not absolute because the same has been qualified by the condition of payment of Rs,1, lac as consideration of Khula. Unless the amount of Khula is paid to the husband, the dissolution does not attain the finality. Since the dissolution is not absolute, therefore, the case is not hit by section 14(2)(a) of the West Pakistan Family Courts Act, 1964. In support of his contention he has relied upon following cases:-- ' Farzana Shaheen v. Malik Muhammad Iqbal (1989 M LD 3888)

2. Muhammad Sarwar v. The Senior Civil Judge/Judge Family Court (1989 ALD 330(1).

' Mst. Rushda Zareen v. Muhammad Saleh (PLD 1976 Lahore 1327).

' The case of Farzana Shaheen is a D.B. Judgment delivered by this Court. It was observed by their lordships that in case a decree of dissolution of marriage is granted subject to certain condition and the wife is unable to fulfil the condition, She has a right of filing appeal and her case would not be hit by Section 14(2)(a). The other judgments are also supporting the contention of the learned counsel.

3. Learned counsel appearing on behalf of the petitioner has not been able to cite and authority by the Hon'ble Supreme Court or to show that the law laid down in the afore-referred authorities has been overruled. However, he has cited PLD 1978 Peshawar 36 wherein dissolution on the basis of Khula in favour of wife has been held to be not appealable. With due deference to the judgment delivered by the Peshawar High Court, I would observe that in presence of the law laid down by this Court, the judgment delivered by the Peshawar High Court cannot be given preference. I would, therefore, hold that the instant writ petition moved by Mst. Naila Azmat is not maintainable at this stage as she has a remedy by way of filing appeal. Learned counsel for the petitioner, however, expressed his apprehension that the appeal would be barred by time and the delay might not be founded by the Appellate Court. To avert his apprehension, I am constrained to observe that the petitioner may move an application for condonation of delay and can press into services section 14 of the Limitation Act by demonstrating that he has neither been ignorant nor indolent in challenging the decision before the learned Appellate Court and he bona fidely believed that appeal was not available and the only remedy available was through the instant writ petition. I am confident, the learned District Judge will consider the same specially when the law on the point has been differently interpreted by different High Court of this country. In view of the above, this writ petition is disposed of.