2010 PLP 1737 (MLD)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this writ petition the petitioner has assailed the judgment and decree dated 17-9-2008 and 25-11-2008.

2. Briefly stated the facts of the case are that the respondents filed, a suit against the petitioner for jactitation of marriage claiming, that she was abducted by the petitioner and the alleged Nikah Nama dated 18-10-2009 is a fake and forged document. Further claimed that on the day of alleged Nikah she was a minor. The petitioner also filed a suit for restitution of conjugal rights. Both the suits were consolidated and the learned Family Court after recording the evidence dissolved the marriage of petitioner on the basis of Khula in lieu of dower and the suit filed by the petitioner for restitution of conjugal was dismissed. The respondent assailed the judgment and decree dated 29-7-7007 through an appeal. The appeal was allowed and the suit for jactitation of marriage was decreed.

3. Learned counsel for the petitioner submits that the learned appellate Court has failed to appreciate that respondent herself appeared before Lahore High Court Lahore Bench at Multan in Writ Petition No 6482 of 2006 and on 8-12-2006 recorded her statement in categorical manner confirming; that she has contracted marriage with Aman ullah of her own free volition, her father and brothers are not happy with this marriage and they are illegally interfering in her matrimonial life. On the statement of respondent this Court disposed of the petition with the follow orders:-- "Respondents Nos. 1 and 2 are directed not to interfere in the matrimonial life of the petitioner."

4. Learned counsel for the petitioner submits that the respondent filed a complaint under section 506 which too was dismissed. She also lodged an F.I.R. which was also discharged but the learned appellate court has wrongly held that no Nikah was performed between the parties and has wrongly relied upon the school certificate and copy of attendance register submitted by the respondent.

5. Learned counsel for the respondents submits that it has been proved on record that respondent was minor as per her birth certificate and also on the day of alleged Nikah she was in her school. He adds that the statement before Lahore High Court Lahore in Writ Petition No.6482 of 2006 was under duress and coercion.

6. The controversy between the parties erupted when the respondent abandoned the petitioner. She entered into a contract of marriage with her free-will as is evident from her statement before this Court. The respondent remained with the petitioner upto February, 2007 when her father filed a Writ Petition No.151 of 2007 claiming that she is in illegal custody of the petitioner. The respondent appeared in the Court on 8-2-2007 and made the statement in Court as under: "Mst. Perveen Akhtar respondent No.1, the daughter of the petitioner and alleged wife of respondent No.2 is present in person in the Court. A meeting was arranged between the father and daughter. After the meeting Mst. Perveen Akhtar respondent daughter of the petitioner states that she would like to go with her father. It is claimed by the petitioner that she is a minor. Respondent No.2 himself appears to be of 35 years of age. Since Mst. Perveen Akhtar respondent states that she would like to accompany her father, she is at liberty to do so."

7. She continued to register F.I.R. and complaints etc. against the petitioner but her all efforts failed.

8. The learned appeal Court has failed to appreciate the documentary evidence available on record confirming that the respondent validly entered into a contract of marriage with her free-will with the petitioner. She appeared as her own witness before the Family Court but has not deposed before the learned Family Court that her statement dated 8-12-2006 before this Court was under pressure, duress and coercion. The learned appellate Court has not appreciated the evidence available on record and wrongly set aside the judgment of learned Family Court, the learned Family Court has rightly passed a decree for dissolution of marriage on the basis of Khula.

9. In view of above, the judgment and decree dated 25-11-2008 passed by the Additional District Judge is not sustainable in the eye of law and as such is hereby set aside and the judgment and decree of learned trial Court is restored. This petition succeeds and the judgment and decree dated 25-11-2008 is declared without any lawful authority. There is no order as to costs. M.U.Y./A-135/L Petition allowed.