P L D 1974 Lahore 105 (PLP)

The facts leading to this revision petition are that a suit was filed by Mst. Sattaran respondent for a permanent injunction for restraining the petitioner from putting up a false claim of marriage with the said plaintiff- respondent. It was alleged that the plaintiff-respondent was married to Shahamand about twelve years ago and three sons were born out of this wedlock, out of whom two were alive, but the defendant-petitioner was falsely claiming her to be his wife with the connivance and help of other defendants. This suit was resisted by the petitioner. On the pleadings of the parties the following preliminary issues were framed :- (1) Whether this Court has got the jurisdiction to try this suit ? O. P. P. (2) Whether this suit is Pot maintainable in its present form ? O. P. D. (3) Whether this suit is bad for misjoinder of parties? O. P. D. All these issues were decided against the petitioner. Hence this petition.

2. The only point urged before me by the learned counsel for the petitioner is that this is a suit for jactitation of marriage which can be tried exclusively by a Family Court under the provisions of the Family Courts Act and consequently the jurisdiction of the civil Court to try it is barred.

3. Section 5 of the Family Courts Act provides "Subject to the provisions of the Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule," The Schedule to the Act specifies suits for

(1) dissolution of marriage, (2) dower (3) maintenance, (4) restitution of conjugal rights, (5) custody of children, and (6) guardianship. By the West Pakistan Family Courts (Amendment) Act, 1969, the following item has been added to the Schedule :- "

7. Jactitation of marriage'. It is, therefore, obvious that if the suit of the plaintiff-respondent is a suit for jactitation of marriage, the jurisdiction of the civil Court is barred and only a family Court can have jurisdiction to try such a suit. The words "jactitation" and "jactitation of marriage" are explained in the 'Twentieth Century Dictionary' as follows "jactitation; restless tossing in lines; twitching or convulsion: tossing or bandying about: braggings: public assertion, esp. ostentatious and false. 'jactitation of marriage; pretence of being married to another". In Halsbury's Laws of England (Third Edition), Vol. 12, page 223, paragraph 419, the form of suit of jactitation is dealt with. It reads as follows :- "False Boast of Marriage.-If anyone persistently and falsely alleges marriage with another, the latter may obtain in a suit for jactitation of marriage a decree of perpetual silence. Only the person com plaining that he has so been mis-represented can present such a petition. It is now a rare procedure. A suit for jactitation is the only case in which a matrimonial suit can, as of right, be proceeded with without prima facie proof of a marriage defacto. In Goldstone v. Goldstone ((1922) 127 L T R 32) this term was explained as follows;

"Jactitation of marriage is an unwarrantable assertion that marriage exists, and it has been within the jurisdiction of this Court for many years to intervene to put to silence the person making a false declaration of marriage. One answer to such a suit is that the party complaining has acquiesced in the statement; he cannot after such acquiescence put to silence a person who persists in representations which he has previously authorised. The two questions which anse are; (1) whether in fact there was a ceremony of marriage and whether that ceremony was valid; and (2) if not, whether the petitioner has permitted and encouraged the respondent to represent herself as his wife." In British India this question came up for consideration in the case of Mir Azmat Ali v. Mahmudul-Nisa (I L R 20 All. 96). Mir Azmat Ali brought a suit for jactitation of marriage against Mst. Mahmud-ul-Nisa who had taken proceedings against him in the Magistrate's Court on more than one occasion to obtain orders of maintenance for herself and her child on the allegation that she was the Nyife of Mir Azmat Ali and the child was their child. The first Court dismissed the suit, finding for the defendant that she was the plaintiff's wife. The appeal was dismissed on the ground that such a case came within the ruling of the Privy Council in Rajah Nilmony Singh v. Kally Churn Bhattacharjee (L R 2 I A 83) and that consequently the suit did not lie. The High Court held that the case before the Privy Council was a very different one. It was observed as follows :- "A suit for jactitation of marriage is not by any means a novel description of suit: it was a suit in which relief was given in England in the Ecclesiastical Courts, and when the jurisdiction of those Courts was transferred to the Divorce Court by `&e Act of 1857, the jurisdiction of the Ecclesiastical Courts in suits for jactitation of marriage was transferred to the Divorce Court. In England it was not only a well-known suit within the jurisdiction of the Eccle siastical Courts, but it was considered proper that that jurisdiction should be continued by the Divorce Court in England, and there can be no doubt that unless a man is entitled by means of the civil Courts to put to silence a woman who falsely claims to be his wife, the man and others may suffer considerable hardship, and his heirs may be harassed by false claims after his death. The suit for jactitation, however, is one not to be encouraged, par ticularly in a country like this, in which persons unfortunately are too anxious to discover forms of legal procedure by which they can annoy their neighbours. In our opinion, -however, such a suit lies in a civil Court in this country. The Court trying such a suit will of course take care, before granting a plaintiff a decree, to see that it is strictly proved that the defendant did seriously allege that the disputed marriage had taken place and that the plaintiff did not acquiesce in the claim or allegation of the defendant as to the disputed marriage, and further that in fact no marriage had taken place between the parties." The nature of this suit is described in para. 39-B of Wilson's Anglo. Muhammad Law as follows:- "39-B. A suit for jactitation of marriage, that is, a suit to have it declared that the defendant is.. not, as she or he falsely alleges, the wife or husband of the plaintiff, will lie between Muhammadans in British India." it is clear from all these citations that a suit for a declaration that the defendant is not the husband or wife of the plaintiff and that the defendant alleges to be the wife or husband of the plaintiff, is a suit for jactitation of marriage. The present suit falls under this category -and could, therefore, be filed only before a Family Court.

4. For the foregoing reasons, I allow this revision petition, set aside the finding of the learned trial Court on issue No. 1, and direct that the plaint be returned to the plaintiff-respondent for presentation to the proper Court. There will be no order as to costs. S. A. H. Petition accepted.