1989 PLP 3609 (MLD)

The Family Court framed four issues. The first respondent, in support of her case, examined herself as Exh. 1, P.W.2 Abdul Razzak as Exh. 12 and P.W. 3 Ramzan as Exh. 13 and closed her side. The petitioners, in support of their case, examined D.W. No. 1 Kazi Mohammad Yousuf as Exh. 14 and D.W. No. 2 Mohammad Sabir as Exh. 16 and D.W. No. 3 Yousuf as Exh.

20. The Family Court on a perusal of the oral and documentary evidence produced by both the parties, decreed the first respondent's suit. He found that the first respondent was married to late Sulaiman Barai against the dower amount of Rs. 50,

000. He also found that the Nikah was performed by D.W. 1 Qazi Mohammad Yousuf (Exh. 14). The Petitioners preferred appeal before the District Judge. He affirmed the judgment of the Family Court. He found Nikahnama (Exh. 2) was not forged. The Petitioners being aggrieved have filed the present petition. Mr. Ahmed Yousuf `Ali Rizvi, the learned counsel for the petitioner contended that although Nikah was registered but the same was not in accordance with the rules framed under Muslim Family Laws Ordinance. On the other hand Mr. Qamar Mohammad Khan the learned counsel for the first respondent supported the judgments of the Court below. I have considered the arguments advanced by the learned counsel for the parties with care. Rule 8 of Muslim Laws Rules, 1961 provides that the Union Council shall, on payment of such cost as may be determined by the Provincial Government, supply to every Registrar a bound register of Nikahnama in Form 11 and a seal bearing the inscription. The seal of the Nikah Registrar of Ward (X) .....Y. Rule 9 provides that for registration of a marriage registered under section 5, the Nikah Registrar shall be paid by the bridegroom or his representative fee of two rupees, or when the dower exceeds two thousand rupees, a fee calculated at the rate of one rupee for every thousand or part of thousand rupees of such dower, subject to a maximum fee of twenty rupees. Section 23 of the West Pakistan Family Courts Act, 1974 provides that a Family Court shall not question the validity of any marriage registered in accordance with the provisions of the Muslim Family Laws Ordinance, 1961 nor shall any evidence in regard thereto be admissible before the said Court. In Nazar Qasim v. Mst. Shaista Parveen (1979 CLC 462) it has been held as under:-- "Section 23 of the Family Courts Act dears 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 its 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 as alleged or that fraud had been perpetrated 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." I have gone through the record available before me. I find that the Family Court who had exclusive jurisdiction in the matter has considered the question, the very existence of the marriage carefully and has given sound reasons in support of his conclusion that the Nikahnama is in the hand-writing of D.W.1, Qazi Mohammad Yousuf, the Nikah Registrar and it bears his signature and the said Qazi Mohammad Yousuf solemnized the Nikah. I have gone through the judgment of the District Judge, Karachi South. I found that the District Judge has considered the validity of the Nikah in between the parties carefully and given sound reasons in support of his conclusion that the Nikahnama (Exh.2) is duly registered and cannot be said to be a forged document. The contention of the learned counsel for the petitioners is that seal is not in accordance with prescribed rule and the receipt produced by the Nikah Registrar is for the larger amount. This contention is devoid of force for more than one reason. Firstly this point was not raised before the appellate Court. Secondly when the Nikah Registrar appeared in the witness box, no question were put to him in this regard who was the proper person to clarify this point. The aforesaid discussion shows that the Courts below after careful and thorough appraisal of all the material brought on record came to the conclusion that the marriage of the respondent No. 1 with Sulaiman Barai was solemnized and the dower amount was fixed at Rs. 50,

000. Both the Courts below carne to the conclusion that Nikahnama (Exh.2) was not a forged document. Learned counsel for the Petitioner has not been able to show that the findings recorded by the Courts below suffered from any legal flaw or infirmity. Thus, the findings of the Courts below are immune from scrutiny in constitutional jurisdiction of this Court. In view of what has been said above, the petition has no merit and the same is dismissed with costs. H.B.T./S-384/K. Petition dismissed.