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‑‑ S. 14‑Appeal against Family Court's order, competency of‑A decision/decree passed by a Family Court, would be appeal-able except in specified cases.

(b) West Pakistan Family Courts Act (XXXV of 1964)

‑‑ S. 14‑Guardians and Wards Act (VIII of 1890), Ss. 25 & 47 Appeal against custody of minor‑Competency of‑There is no prohibition of filing appeal, held, against order under Guardians and Wards Act for custody of minor.

Ihsanur Rehman v. Mst. Najma Parveen P L D 1986 S C 14 rel.

(c) Constitution of Pakistan (1973)‑

‑‑ Art., 199‑West Pakistan Family Courts Act (XXXV of 1964), S. 14‑Guardians and Wards Act (VIII of 1890). S. 25‑Constitu tional jurisdiction, exercise of‑Appeal against order for custody of minor' being competent, order of Appellate Court holding other wise was held to be illegal and without lawful authority‑Case was remanded back to Appellate Court to decide same on merits.

Muhammad Hanij Mangi for Petitioner.

Bhajandas for respondent.

Dates of hearing : 11th February and 2nd March, 1986.

This petition is directed against the order of learned Civil Judge and Family Court, Shikarpur, dated 3rd January, 1983 and 6th February, 1984 and against the order of learned District Judge, Shikarpur, dated 5th December, 194.

The brief facts leading to this petition V that the .petitioner was married to the respondent No. 1 and a daughter Mst. Rozina was born out of this wedlock. 'The marriage between the parties was dissolved by the Civil Judge and Family Court, Khairpur by his order, dated 30th April, 1974. After' dissolution of marriage Mst. Rozina who was at that time aged about U years continued to live with the petitioner who looked after her and educated her. The respondent filed Application No. 11 84 under section 25 of Guardians and Wards Act for restoration of Mst. Rozina in the Family Court, Shikarpur. This application was granted ex pane on 3rd January, 19,3 awarding the custody of minor to the respondent. The petitioner resisted the execution application filed by respondent but her objections were dismissed by the Family Judge by order, date" February, 1984. Her appeal before the District Judge; Shikarpur Was dismissed on 5th December, 1984 by a short order:‑ ‑ 1t ; appears that the minor Mst. Rozina filed Constitutional Petition bearing No. S‑28/84 in this Court which was dismissed by learned Single Judge of this Court, vide order dated 12th September, 1984.

The learned counsel for the petitioner has assailed the impugned orders mainly on the ground that Family Court at Shikarpur had no jurisdiction to hear the case as minor is residing and has been residing at Khairpur alongwith the petitioner. Secondly that the welfare of the minor was not ‑considered by the Family Judge while passing the impugned order. The order of learned District Judge is assailed on the ground that it is very short order passed without discussing or considering the merits of the appeal The copy of this older of learned District Judge has been filed as Annexure E'. The relevant portion of this order is reproduced as under :‑

"Appellant has filed constitutional petition before the Honourable High Court against the said orders but the same was dismissed by the order dated 12th September, 1984. Perusal of this order indicates that the constitutional petition has been dib missed on considering the facts and circumstances of this matter and as such it is not open to this Court to re‑examine the same points. Further in the same order, it has been held that against the said orders no appeal lies. I, therefore, dismiss this appeal with no order as to costs.

It will be seen that learned District Judge has not discussed the contentions raised by the petitioner in the appeal before him, but has merely dismiss ed the appeal because constitutional petition filed by the appellant had been dismissed by the High Court, wherein it has been observed that no appeal lies against the orders of vie Family Court. This order of District Judge is erroneous in the sense that the constitutional petition was not tiled by the appellant viz. the petitioner but was filed by fist. Rozina the minor, whose custody is under dispute. I have gone through the copy of the order of the learned Single Judge in this constitutional petition. The learned Judge has held that the order is passed by competent Court which holds the field and in extraordinary writ jurisdiction no case for interference has been made out. However, the learned Judge has made a passing observation to the effect that all the points which are agitated in the petition were agitated, by her mother before the Family Court which has been considered by the Court of competent jurisdiction and disposed of by an order against which no appeal lies. It is not clear as to in what context this observation was made. It appears that the question as to whether appeal lies or does not lie was not directly at issue in the petition and, therefore, section 14 of the West Pakistan Family Courts Act, 1964 does not appear to have been brought to the notice of the learned Single Judge. This section provides that notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appeal-able. Subsection (2) of this section provides

(2) No appeal shall lie from a decree by a Family Court‑

(a) for dissolution of marriage, except in the case of dissolution of reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939 ;

(6) for dower not exceeding rupees one thousand ;

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

It will be seen that there is no prohibition of filing appeal against an order under the Guardians and Wards Act for the custody of minor. In this context it would be relevant to refer to the observations of their Lordships of the Supreme Court in the case of Ihsanur Rehman v. Mst. Najmu Parveen (P L D 1986 S C 14). Their Lordships have observed:

"The High Court has no revisional jurisdiction whether in cases dealt under the Family Courts Act or those dealt under the Guardians and Wards Act by virtue of section 25 of the Family Courts Act. Section 14 providing for the appeals continues and will continue to cover the field of remedy, of course, apart from the Constitutional remedy."

Thus, there can be no doubt that appeal was competent under section 1 of the said Act and the learned District Judge has wrongly held that appeal was not competent. Obviously the impugned order of learned District Judge is not based on merits. Therefore, the petition is partly allowed. The impugned order of the District Judge is held to be illegal and without lawful authority and the case is remanded back to the District Judge to decide the appeal on merits. I refrain to pass any comments on the impugned. orders passed by learned Civil Judge as they will be sub judice before the learned District Judge in appeal. The parties are directed to appear before the learned District Judge, Shikarpur on 14th April, 1986. The petition was disposed of by short order, dated 2nd March, 1986. Above are reasons in support of the said order.

A.A. Petition party accepted.

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