1994 PLP 489 (CLC)

Date of hearing: 1st November, 1992. This Constitution petition was directed against the judgment dated 9‑6‑1991 of the learned Additional District Judge, Mianwali whereby the appeal of the petitioner was dismissed and thus the judgment dated 18‑3‑1991 of the learned Judge Family Court, Mianwali was not interfered with.

2. The facts briefly stated are that the petitioner filed a suit for dissolution of marriage on the assertion that her Nikah was performed while she was minor aged 4/5 years but on obtaining majority, she exercised her right of puberty and declared in the presence of Riaz‑ul‑Haq, son of Faiz Muhammad and Muhammad Ishaq, son of Ghulam Nabi that the said Nikah was not acceptable to her and thereby repudiated the said nikah solemnized during her childhood. It was further asserted that she was aged 17 years approximately when she repudiated the marriage but now for the last two months the defendant‑respondent has started claiming petitioner as his wedded‑wife though she had already repudiated the marriage. This suit was filed on 28th September, 1989. Defendant‑respondent resisted the suit saying that the age of the petitioner‑plaintiff is now 22 years and till then she has not repudiated the marriage and now she has no right to repudiate the same by filing the suit. It was further asserted that the respondent‑defendant is a religious man and is learning Qur'an by heart and that the version contained in the plaint is false. It was further asserted that marriage was Watta Satta and that Mst. Sat Bharai was given in marriage to uncle of the petitioner‑plaintiff she is residing in! her house with husband and there are six issues from the marriage. It was also asserted that certain ornaments and clothes were received in connection with arrangement of Rukhsati. 2‑A. The learned trial Court framed the issue whether the plaintiff has repudiated her Nikah of her minority in valid exercise of right of option of puberty. After recording the evidence, learned trial Judge answered this issue in the negative and dismissed the suit. The appeal filed against the judgment of dismissal of the suit was dismissed by the learned Additional District Judge. It was noted that petitioner‑plaintiff having born on 11‑11‑1967 as per birth certificate was aged 22 years five months and 26 days and that she was more than 18 years when she repudiated the marriage. This inference was drawn as the petitioner‑plaintiff in her statement recorded on 7th May, 1990 had deposed that Nikah was repudiated 3/4 years ago. It was further observed that no doubt both the P.Ws. stated that the appellant repudiated the Nikah at the age of 16/17 years but both were expected to meet the challenge during the cross‑examination and the respondent succeeded in obtaining facts from these P.Ws. which were sufficient to dislodge the case of the appellant. The learned appellate Court held that the trial Court was right in holding that the plaintiff appellant has failed to prove the issue. The judgments of both the learned courts below were then assailed by filing the present Constitution petition.

3. This being a family matter and as marriage was statedly Watta Satta marriage (exchange marriage), pre‑admission notice was issued to respondent No.3 Imtiaz but he did not enter appearance despite service of actual date notices more than once. He has also not entered appearance today despite registered notice. He is, therefore, proceeded against ex‑parte. 4. 1 have gone through both the impugned judgments as well as the evidence produced by the parties. The learned trial Judge dismissed the suit by observing as under:‑ "Only one witness is produced in whose presence such marriage was repudiated. He stated that the plaintiff repudiated the marriage in his presence at the time of 3/4 p.m. (in evening). The plaintiff also stated that the witness, in whose presence she repudiated the marriage, came to their house at night, while only one witness has deposed otherwise." On this point, the learned Additional District Judge observed as under:‑ "No doubt, both P.W.1 and P.W.2 stated that the appellant revoked the Nikah at the age of 16/17 years. However, both were expected to meet the challenge during the cross‑examination. The respondent succeeded in obtaining facts from these P.Ws., which were sufficient to dislodge the case of the appellant. The learned trial court, therefore, had rightly found the appellant failed to prove the issue." The findings of the learned Judge Family Court that the plaintiff has not repudiated her Nikah by valid exercise of right of puberty, as such, was not examined by both the learned courts below in correct perspective.

5. The petitioner appeared is P.W.1 and Muhammad Ishaque, her father appeared as P.W.2. The statement of petitioner‑plaintiff, namely, Khudijat‑ul Kubra that the witnesses were her relatives and that Riaz had come in their house one night earlier in no manner contradicts her statement of making the declaration or statement of her father, P.W.2 that the declaration was made at 3/4 p.m. The plea taken in the plaint is that she was 17 years, of age when she repudiated the marriage in exercise of right of puberty. In the written statement filed by the respondent, it was submitted that at that time the age of the plaintiff was 24 years. The plaintiff while appearing as P.W.1 deposed that at this time, that is, the time when she was deposing before the Court, her age was 21/22 years. This statement does not stand contradicted by the birth certificate Ex.D/1 which gives her date of birth as 11‑11‑1967. According to this document, she was 22 years and 5 months when her statement was recorded. No doubt while appearing as her own witness she deposed that she had repudiated the marriage 3/4 years ago but it has to be kept in mind that the petitioner is an illiterate and rustic lady. She cannot be pinned down with reference to a few months or days. Her case generally put was that she was 16/17 years when she repudiated the marriage. She was not asked to specify the period and in answer to a general question she has given an answer in general terms. In the circumstances it will not be fair to draw an adverse inference. Reference may also be made to the case of Mst. Janat v. Additional District Judge, Jhang and 2 others (PLD 1981 Lahore 68) wherein it was held C that right of option of puberty can be exercised up to the age of 18 years but a suit for declaration that such right was duly exercised within that period is competent even after that age. The suit as filed was essentially a suit seeking a declaration to the effect that such right having been exercised the marriage stood dissolved. It was in this context that the assertions made in the plaint and the evidence produced had to be examined.

6. Again this being a family matter and the jurisdiction to be exercised being parental, plea of Khula` sought to be raised should also have been allowed by the learned trial Judge through amendment of plaint. In view of the pendency of this litigation for the last so many years, the petitioner‑plaintiff has lost many years of her precious life without any corresponding benefit to the respondent. The dismissal of the suit has not contributed to welfare of the parties as they continue to live separately. The plea of Khula' should have been allowed to be raised by allowing amendment of the plaint as the respondent had in his written statement asserted that certain ornaments and clothes were given by him in connection with the arrangement of Rukhsati. In these circumstances, exercise of power vesting in the courts below to allow amendment so as to raise the plea of Khula` was eminently justified. The jurisdiction was, thus, exercised arbitrarily and illegally. Both the impugned judgments are, therefore, quashed. The suit of the plaintiff‑petitioner shall be deemed to be still pending and the petitioner may file amended plaint so as to take the plea of Khula` and after allowing the opportunity to the parties to lead evidence, the suit shall be decided afresh within a period of four months. The petition is accepted in the above terms with no order as to cost. H.B.T./K‑57/L. Petition accepted.