1979 PLP 462 (CLC)

Turab Ahmed for Respondent. Date of hearing : 26th May, 1979. This revision application under section 115, C. P. C. is directed against the judgment dated 12th March, 1979 passed by the VIth Additional District Judge, Karachi in Civil Appeal No. 26 of 1979 whereby he allowed the appeal of the respondent from the order of the XV11th Civil Judge, Karachi in Suit No. 2527, 1978 rejecting the plaint.

2. Briefly, the facts are that respondent Mst. Shaista Perveen filed a Civil Suit No. 25,7/1978 in the Court of the XVCIth Civil Judge, Karachi against the applicant, Nazar Qasim, who is her paternal cousin, for a declaration that the relationship of wife and husband never existed between her and the applicant and also for adjudging that the Nikahnama dated 17th February, 1978 pertaining to her alleged marriage with the applicant was a forged document and void against her. Prior to the filing of the said Civil Suit, the applicant had filed a Suit No. 1438%1978 against the respondent and others fir restitution of conjugal rights, alleging therein that respondent was married to him as per Ntkahnama dated 17th February, 1978. After co-habiting with her until 15th March, 1978 she was taken away and detained by her parents anti one Naseem Ahmed Siddiqui (who married the respondent as per Nikahnama dated 28th July, 1978).

3. In the respondent's Civil Suit the applicant filed an application under Order VII, rule 11, C. P. C. praying that the plaint be rejected or. the ground that a suit for jactitation of marriage was triable exclusively by a Family Court under section 5 of the Family Courts Act, 1964 and the Civil Court had no jurisdiction. The applicatiori4was allowed by the learned Civil Judge who agreed with the contention of applicant that the respondent's suit was for jactitation of marriage specified in item 7 of the Schedule to the said Act, which the Family Court has exclusive jurisdiction to entertain, hear and adjudicate upon under section 5 of the said Act. Accordingly, the plaint was rejected and the respondent was directed to resort to the Family Court for seeking her redress.

4. The respondent preferred an appeal to the VIth Additional District Judge, Karachi against the order rejecting the plaint of her suit. The learned Appellate Court disagreed with the Trial Court holding that the object of the respondent's suit was to obtain cancellation of a document, namely the alleged forged Nikahnama dated 17th February, 1978 and as it was a registered Nikahnama, the Family Court could not question its validity in view of the bar contained in section 23 of the Family Courts Act, with the result that only the Civil Court was compe tent to adjudicate the genuineness and validity of the disputed Nikahnama. Accordingly, by the impugned order dated 12th March, 1979 he allowed the respondent's appeal and remanded the suit for trial to the trial Court for decision according to law. The present revision applica tion has been filed to assail the said impugned order.

5. The meaning and scope of a suit for jactitation of marriage is well known to common law. The nature of such type of suit was recently discussed by the Lahore High Court in Mst. Amina Begum v. Ghulam Nabi and others (P L D 1974 Lah, 80). The essence and main object of a suit A for jactitation of marriage is to perpetually silence a false allegation or claim put forward by the defendant, of a marriage having taken] place between the defendant and the plaintiff. Rayden on Divorce Vol. 1, 12th Edn p. 304 says :-.- "Jactitation of marriage means a persistent boasting of a marriage, falsely alleged to have taken place between the boaster and the petitioner. The suit prays for a decree of perpetual silence of the subject." A perusal of the plaint of the respondent's Civil suit shows that the respondent's plea is that the applicant falsely alleges that a marriage had taken place between her and the applicant on 17th February 1978 and further that the Nikahnama produced by the applicant as evidence thereof, allegedly bearing her signature, was also a false, forged and spurious document. The main prayer for the respondent's suit is for a' declaration that "relationship of wife and husband never existed arid does not exist between her and the applicant." It is true that her subsequent prayers are for adjudging the Nikahnama dated 17th February 1978 as a forged document and for its cancellation. But these additional prayers are consequential reliefs and, in my opinion, will not alter the character of her suit, which is essentially for perpetually silencing the alleged false claim of marriage put forward by the applicant. In my opinion, the suit continues to retain its character as a suit for jactitation of marriage, which is exclusively within the jurisdiction of the Family Court to entertain, hear and adjudicate under section 5 of the Family Courts Act, 1964 and, as such, its trial by Civil Court is barred.

6. It is contended by Mr. Turab Ali learned counsel for respondent that under section 23 of the Family Courts Act, a Family Court is not competent to question the validity of the marriage registered in accor dance with the provisions Muslim Family Laws Ordinance, 1961 or to admit any evidence in regard thereto. The disputed Nikahoainla bars the seal of the Nilkah Registrar who registered it in accordance with the provision of the said Ordinance. Therefore counsel's contention is that as the Family Court is debarred from questioning its validity, the respon dent was compelled to resort to the Civil Court for relief of cancellation of the disputed Nikahnama. This submission prevailed with the appel late Court.

7. Section 23 of the Family Courts Act debars the Family Court from questioning the validity of any marriage on the ground that the provisions of the Muslim Family Laws Ordinance, 1961 providing for it, solemnization and registration in the prescribed manner have not been complied with. It assumes that in all other respects, the marriage is otherwise valid under the Muslim Law. The said section cannot therefore prevent a party to the marriage from leading evidence to show that a marriage did not in fact take place or alleged or that fraud had been perpetuated against the party or that his/her signature on the alleged Nikahnama was also forged. Fraud vitiates even the most solemn transaction. A marriage which is otherwise void, for example, because it was solemnized between persons within the prohibited degrees, cannot be beyond challenge in a Family Court, merely because it was registered by Nikah Registrar in accordance with the provisions of section 5 of the Muslim Family Laws Ordinance, 1961.

8. Mr. Abbas Farooqui learned counsel for the applicant relied on a decision of the Lahore High Court in Mst. Fehmida Bibi v. Mukhtar Ahmed and others (P L D 1972 Lab. 694) in support of the submission that even conceding that a Family Court may not have jurisdiction to entertain a suit for cancellation of the alleged false Nikahnarna, it may yet be competent to entertain a plea based on that defence. It was, therefore, open to the respondent to raise the plea of the falsity of the Nikahnama as a defence to the suit for restitution of conjugal rights filed by the applicant against her, however, it is not necessary for me to rule on this submission for this revision is being decided on another ground that the suit of the respondent is a suit for jactitation, of marriage which is excessively triable by the Family Court.

9. In the result, the impugned order is set aside and the revision application is allowed. The appellate Court is directed to return the plaint of Suit No. 2527; 78 to the respondent for presentation to the Family Court for trial according to law.

10. There will be no order as to costs. K. M. A. Order set aside.