2005 PLP 976 (YLR)

AMANULLAH KHAN, J.

This Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the judgment, dated 8-11-2002 passed by Additional District Judge, Quetta in Family Appeal No.39 of 2001 whereby judgment, dated 13-8-2001 passed by Civil Judge-V/Family Judge, Quetta was set aside and suit filed for jactitation of marriage was dismissed.

2. The facts giving rise to this petition are that the petitioner filed a suit for jactitation of marriage in the Court of Civil Judge-V/Family Judge, Quetta against the respondent No.1 with the averments that on 4-4-2000 an agreement was executed between father of petitioner with the father of respondent No.1 wherein it was agreed that they will give the hands of their daughters to their sons in marriage while the brother of petitioner namely Hazrat Gul would remain as Khana Damad. It was further averred that on the basis of said agreement the respondent No.1 is posing as husband of the petitioner. It was the case of petitioner that she does not want to get married with the respondent No.1 thus it was prayed that the respondent No.1 be directed not to pose as husband of the petitioner. The respondent No.1 filed written statement and the suit was resisted, the learned Civil Judge/Family Judge out of pleadings of the parties framed the following issues:-- (1) Whether the suit is not maintainable in view of P/O A and C? (2) Whether the plaintiff is the wife of defendant in view of agreement written between the fathers of parties? (3) Whether the Nikah was performed between the parties or not? (4) Whether the amount of Rs.15,000 has received by the father of plaintiff, jewellery worth of Rs.15,000 of defendant is lying with plaintiff if so, that effect? (5) Whether the plaintiff is entitled to the relief claimed for? (6) Relief. The petitioner in support of her claim produced the following witnesses namely P.W.1 Soor Gul, P.W.2 Dost Muhammad and got recorded her own statement, in rebuttal the respondent No.1 produced D.W.1 Hazrat Gul, D.W.2 Agha Muhammad and got recorded his own statement. After recording evidence the learned trial Court after hearing the parties decreed the suit vide judgment/decree, dated 13-8-2001. Being aggrieved from the same the respondent No.1 filed an appeal before Additional District Judge, Quetta who after hearing both the parties accepted the appeal and dismissed the suit vide impugned judgment, dated 8-11-2002, hence instant petition.

3. Mr. Ikhlaq Ahmed Shah learned counsel for petitioner contended that the learned Appellate Court has erred in reversing the findings of the learned Civil Judge-V/Family Judge, Quetta as admittedly no Nikah had been performed and it was simply prayed that the respondent No.1 be restrained from posing as husband of the petitioner and further contended that it was admitted between the parties that Nikah had not been performed, thus the engagement or Duwa-e-Khair had no legal sanctity and further contended that learned trial Court erred in holding that since the petitioner was minor therefore, suit filed by her was not maintainable.

4. Syed Ayaz Zahoor Advocate appearing on behalf of respondent No.1 however, vehemently argued that since the petitioner was minor therefore, the learned District Judge, Quetta rightly dismissed the suit as the petitioner could not file a suit.

5. Adverting to the contention of Syed Ikhlaq Ahmed Shah, learned counsel for the petitioner regarding age of the petitioner, it may be pointed out that it is now well settled law that in case of marriage, dower, divorce or family matters; the Majority Act is not to be considered but Muslim Personal Law being a Special Law is to be considered according to which a woman who has attained the age of puberty can sue in respect of her rights related to her maintenance allowance, divorce, dower etc. In this regard, reliance is placed on Capitan S.M. Aslam v. Rubi Akhtar (1996 CLC 1) wherein following observations were made:-- In the light of this discussion, there remains no doubt that Muslims who have attained majority on account of attaining puberty but are minors according to the Majority Act, being the persons below the age of 18 years, can sue and be sued to protect their rights themselves. I think that section 21 of the Act appears to have reduced the strictness related to the issue of majority. This section runs as under:-- S.

21. Capacity of minors to act as guardians. A minor is incompetent to act as guardian of any minor except his wife or child, or, where he is the managing member of an undivided Hindu Family, the wife or child of another minor member of that family. If this section is read with the age of puberty then it is evident that a married male can serve as guardian of his own wife even if he is treated to be minor on account of not having attained the age of eighteen years according to the Majority Act.

14. By keeping all these points in view alongwith the application of Enforcement of Shariat Act, 1991 , I am of the opinion that controversy arising out of the conflicting views reference to Order XXXII, rules 1 and 3, C.P.C. and the Majority Act, 1875 regarding Muslim Personal Law as embodied in the Religion of Islam has come to end. It is, therefore, my considered view that if any woman has right to marry, she can claim maintenance after marriage, ask for dower before or after marriage, seek divorce (in case of right of Tafweez-e-Talaq) or be divorced or/and enter into second marriage or contract any such other agreement regarding her rights in accordance with the Muslim Personal Law then she can sue and be sued in all such disputes independently of a next friend or through guardian ad litem. In this regard the Muslim Personal Law may be treated Special Law while the provisions of Order XXXII, Rules 1 and 3, C.P.C. read with section 3 of the Majority Act can be treated as general provisions of law. This view gets further support from section 19(a) of the Act according to which the Guardian Court is not authorised to appoint or declare a guardian of the property or of the person of a minor who is married female and whose husband is not, in the opinion of the Court unfit to be guardian of her person. If this section is read with section 21 of the Act, then it can be said with certainty that application of Majority Act with reference to the age factor is not possible in each and every case especially in a Muslim society. Hence age of puberty has to be excluded from the age of majority as given in section 3 of the Majority Act, 1875 in matters of the Muslim Personal Laws particularly when the same confronts or is contrarious to the Laws of Islam.

6. Thus the learned Appellate Court has erred in reversing well-reasoned judgment of the learned Civil Court on the ground of age by relying on the Majority Act which is an ordinary Law. Muslim Personal Law being a Special Law overrides the provisions of Majority Act, as it is an ordinary law.

7. It may not be out of place to mention here that at present the petitioner has also attained the age of majority, as the suit was filed in July, 2000, wherein it was claimed that the petitioner is minor. However, with the passage of time, four years have been elapsed and now she has also attained the age of majority. It is worth mentioning here that the suit was filed for jactitation of marriage wherein the respondent was posing to be the husband of petitioner on the basis of agreement arrived at between the parents of the parties. Admittedly no Nikah was performed. Thus in absence of Nikah, the said agreement had no legal sanctity or validity in the eye of law, thus on such grounds, the suit was very much maintainable wherein the respondent was posing himself as husband, without any Nikah.

8. The learned Civil Judge/Family Judge, Quetta had rightly held that the said agreement was not binding on the petitioner and the Appellate Court erred in reversing the finding of Civil Judge on the basis of minority has not taken into consideration aforesaid legal proposition. Since Nikah was not performed, thus the respondent has no right to pose himself as husband of the petitioner.

9. For the foregoing reasons petition is accepted and the judgment/decree, dated 13-8-2001 passed by Civil Judge-V/Family Judge, Quetta is upheld. The petition is accepted with no order as to costs. M.B.A./39/Q Petition accepted.