--S. 14--Jurisdiction of appellate court against decree of maintenance allowance--Section 14(2) of Act, appeal against decree of dowry articles not exceeding Rs. 100,000/- is barred--

PLJ 2022 Lahore 558

Family Courts Act, 1964 (XXXV of 1964)--

----S. 14--Jurisdiction of appellate court against decree of maintenance allowance--Section 14(2) of Act, appeal against decree of dowry articles not exceeding Rs. 100,000/- is barred--Bar contained in Section 14(2) of Act is applicable to husband only and same cannot be applied to minor or wife--Since maintenance allowance granted to each person was less than Rs. 5000/- per month, therefore, appeal under Section 14(2) of act, was barred--This writ petition is allowed and impugned judgment and decree passed by appellate court below is set aside, appeal of petitioner will deem to be pending before learned appellate court below. [Pp. 560 & 561] A, B, C & D

2018 SCMR 1885; 2017 YLR 1684 ref.

Malik Waqar Haider Awan, Advocate for Petitioner.

Mr. Qadeer Asif Toor & Ms. Raheela Saleem, Advocates for Respondents.

Date of hearing: 22.2.2022.

PLJ 2022 Lahore 558
Present: Anwaar Hussain, J.
Mst. SHAISTA PARVEEN--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, etc.--Respondents
W.P No. 849 of 2020, heard on 22.2.2022.

Judgment

Succinct facts of the case are that on 28.06.2012, petitioner, namely, Mst. Shaista Parveen (“the petitioner”) on her behalf as well as minor, namely, Muhammad Suleman Ajmal (“the minor”) instituted a suit for recovery of maintenance allowance and dowry articles against Respondent No. 3, namely, Muhammad Ajmal (“the respondent”) on the ground that nikah of the parties was solomnized on 29.09.2009 and rukahsati took place 15 days thereafter; that out of this wedlock, the minor was born; that after some time, the respondent became cruel towards the petitioner; that he borrowed a sum of Rs. 200,000/- from step father of the petitioner on different pretexts and 11 months prior to institution of the suit, asked the petitioner to bring a sum of Rs. 50,000/- more from her step father but she refused whereupon the respondent kicked out the petitioner along with the minor from his house; that at the time of the marriage, the respondent was given dowry articles worth Rs. 5,63,200/-, which are lying with the respondent; that despite repeated demands, the respondent neither paid any maintenance allowance to the petitioner and the minor nor returned the dowry articles which constrained the petitioner to institute the suit.

2.  The respondent contested the suit by filing written statement. He also instituted a suit for resultation of conjugal rights. Both the suits were consolidated and consolidated issues were framed. After recording of evidence of the parties, learned trial Court decreed the suit of the petitioner in the terms that the minor is entitled to maintenance allowance at the rate of Rs. 2000/- per month for the last two years and at the same rate in future with 10% increase per annum and dismissed the claim of the petitioner to the extent of maintenance allowance and dowry articles and also decreed the suit of the respondent for restitution of conjugal rights vide consolidated judgment and decree dated 25.11.2013. Both sides preferred appeals, which were dismissed by learned appellate Court below vide judgment and decree dated 27.02.2014. The petitioner assailed both the judgments of learned Courts below by way of filing Writ Petition
No. 3723/2014 wherein the case was remanded to learned trial Court to the extent of dowry articles only vide order dated 25.03.2019. In post-remand proceedings, learned trial Court partially decreed the suit of the petitioner and held her entitled to recover a sum of Rs. 60,000/- as alternate price of dowry articles vide judgment and decree dated 20.05.2019. The petitioner feeling dissatisfied preferred appeal, which was dismissed by learned Additional District Judge, Jampur on the ground that the legislature has not provided any appeal against decree of dowry articles not exceeding Rs. 100,000/- under Section 14(2) of Family Courts Act, 1964 (“the Act”) vide judgment and decree dated 08.11.2019. Hence, this writ petition has been filed.

3. Only controversy involved in the matter, is quantum of alternate value of dowry articles. Learned counsel for the petitioner submits that under Section 14(2) of the Act, the embargo has been placed upon the husband by restraining him not to challenge a decree of dowry article if it is upto Rs 100,000/- but no such restriction has been placed upon the wife by the legislature for enhancement of the. amount granted as alternate value of dowry articles. Submits that the learned lower appellate Court below has erred in dismissing the appeal of the petitioner depriving her from her statutory right of appeal. The said assertion of learned counsel for the petitioner has been controverted by learned counsel for the respondent while submitting that the appeal against grant of dowry articles not exceeding Rs. 100,000/- is explicitly barred by law. He has placed reliance on Sarfraz v. Additional District Judge and 5 others [2017 YLR1684 Lahore (Rawalpindi Bench)].

4. Arguments heard. Record perused.

5. Perusal of impugned judgment and decree of learned appellate Court below reveals that the learned appellate, Court below has dismissed the appeal of the petitioner on the sole ground that under Section 14(2) of the Act, appeal against decree of dowry articles not exceeding Rs. 100,000/- is barred. Suffice to state that the legislature in its wisdom has impuned the said restriction keeping in view the present price hike and strong custom of our society to give dowry articles to the brides while considering that dowry articles of ordinary nature, which are usually given to the brides at the time of marriage, will not be less than the value of Rs. 100,000/-. This restriction has been imposed upon the husband to curtail the litigation so that the wife could, at least, get the said amount, if it is decreed by the Court without further litigation by the husband as a matter of right. By no stretch of imagination, the said embargo is applicable to the wife. In this view of the matter, the learned appellate Court below has misinterpreted and misapplied the law on the subject and wrongly dismissed appeal of the petitioner, therefore, the impugned judgment and decree of learned appellate Court below cannot sustain. In this regard, I am fortified by dicta laid down in Saif-ur-Rehman v. Additional District Judge, Toba Tek Singh (2018 SCMR 1885) and Rahim Bux, Additional District Judge Muzaffargarh (2004 MLD 1749 Lahore). In the latter judgment, it has been held that:

“8. Now applying the said rule to the said Section 14 of the Family Courts Act, 1964, one finds no ambiguity whatsoever in the words of the provide to the said argue that the intention of the legislature was to avoid the challenge by a person to a decree passed in the sum of Rs. 1,000/- or less by way of maintenance to a child or a wife. Applying the very rule being relied upon by the learned counsel for the petitioner we find a bar to an appeal by a child or a wife to seek enhancement of the maintenance allowance where the trial Court grants it in a sum less than Rs. 1000 is not to the read into the said proviso.

(Emphasis supplied)

Bare perusal of above unambiguously reflects that the bar contained in Section 14(2) of the Act is applicable to the husband only and the same cannot be applied to the minor or the wife, if the family Court decrees their suit for maintenance allowance to the extent of Rs. 1000/- or the dowry articles to the tune of Rs. 100,000/-.

6. Learned counsel for the respondent has relied upon Sarfraz supra to contend that no appeal, even to a wife, is available under Section 14(2) of the act against a decree of dowry upto the amount of Rs. 100,000/-. I have gone through the said judgment. The facts of the referred case are distinguishable from that of the instant case inasmuch as in the said case, the husband challenged the decree whereby the wife was granted maintenance allowance at the rate of
Rs. 3,000/- per month for Iddat Period, and the minors at the rate of Rs. 4,500/- month per head. Therefore, it was held in the referred case that since the maintenance allowance granted to each person was less than Rs. 5000/- per month, therefore, the appeal under Section 14(2) of the Act was barred. Whereas, in this case, the appeal was filed against a decree of dowry article less than Rs. 100,000/- by a wife who was not debarred to challenge the same as the restriction imposed under Section 14(2) of the Act is only upon the husband, as discussed hereinabove. The contention of learned counsel for the respondent that the appeal of wife is also barred under the said provision is without any foundation, which is accordingly discarded.

7. For what has been discussed above, this writ petition is allowed and the impugned judgment and decree passed by learned appellate Court below is set aside. Resultantly, the appeal of the petitioner will deem to be pending before learned appellate Court below. Parties are directed to appear on 05.03.2022 before learned District Judge, Rajanpur who will hear the appeal of the petitioner

himself or entrust it to a Court of competent jurisdiction. The Court so seized with the matter will decide the appeal of the petitioner afresh to the extent of claim of dowry only, after affording opportunity of hearing to both sides, expeditiously, preferably within a period of one month commencing from the date of such entrustment, strictly in accordance with law.

(K.Q.B.)          Petition allowed