1999 PLP 425 (YLR)

Ch. Muhammad Iqbal Ghazi for Petitioner. Nemo for Respondent No.3. A suit for jactitation of marriage was filed by respondent No.3 against the petitioner that the Nikah was performed when she was minor of 4/5 years. On attaining puberty she denounced and repudiated her Nikah. In the alternative she prayed for dissolution of marriage on the ground of Khula'. The suit was contested by the petitioner. Reconciliation proceedings and efforts failed and issues were framed by the learned Judge, Family Court. Parties produced their respective evidence. Vide judgment dated 11‑10‑1994 the learned Judge, Family Court dismissed the suit, respondent No.3 filed an appeal thereagainst, which was, however, accepted by the learned District Judge, Layyah on 5‑12‑1995. The petitioner has challenged the aforesaid judgment through this petition.

2. The learned counsel in support of the petition contends that the learned District Judge has not weighed the evidence in its true perspective and that the marriage registered under the Family Laws Ordinance, cannot be questioned in view of section 23 of the Family Courts Act, 1964.

3. When this petition was filed and heard by the Court, pre‑admission notice was issued to respondent No. 3 on a sole point that the parties being otherwise closely related, there might be a chance for a compromise. But despite repeated notices, respondent No.3 has not entered appearance, which itself indicates that she is not interested or ready for reconciliation or compromise. Possibility cannot be ruled out that she might have entered into a marriage as there was no restraint order by this Court. The purpose of issuance of pre‑admission notice has, thus, remained unaccomplished.

4. The learned District Judge has considered and weighed the evidence led by the parties and come to the conclusion that Nikah was performed during her minority and that she had not affixed her thumb on the Nikahnama Exh. D/ 1, produced by the petitioner. He was also of the view that Nikahnama Exh.D/1 was not proved by the petitioner. In this view of the evidence on record and as appreciated by the learned District Judge and his findings on the point of Nikah, section 23 of the Family Courts Act, 1964 is not attracted. The import of section 23 of the Family Courts Act, 1964 was considered by the Shariat Appellate Bench of the Supreme Court in well‑known case of Muhammad Azam v. Muhammad Iqbal (PLD 1984 SC 95), it was observed at page 145 that the case of Nazar Qasim v. Mst. Shaista Parveen (1979 CLC 462) (1)'cart also be noticed in connection with another important aspect namely the true import of section 23 of the West Pakistan Family Courts Act, which lays down that a Family Court would not be able to question validity of a marriage which is registered under the provisions of the Family Laws Ordinance. It was held that this section assumes the validity of marriage only if it satisfies certain conditions but would not prevent a party from showing either that the marriage had not taken place at all or that fraud had been committed in connection therewith or for that matter a Nikahnama was a forgery and/or that the signatures thereon were forgery. Accordingly it was found that such a marriage or otherwise invalid marriage, might not be held (sic) challenge before a Family Court merely because it was solemnized in accordance with the provisions of the Family Laws Ordinance. Moreover, it might ‑be added such a marriage and its registration even if purported to be under the Family Laws Ordinance, could not truly in law be treated as in accordance with the provisions thereof if the same was the result of fraud, misrepresentation, forgery and the like infirmities." In Ghulam, Qadir v. Judge, Family Court Murree and another (1988 CLC 113) it was observed that' Nikah performed during the age of minority, could be legitimately repudiated on attaining puberty and in such like situation section 23 of the Act was no bar. Similar view was taken in Syed Muhammad Iqbal Hussain Shah v. Mst. Farhat Jehan and 2 others (1991 CLC 1787) and Mst. Nighat Aijaz v. Muhammad Jameel (PLD 1994 Kar. 46).

5. There is no fault or illegality in the approach and judgment of the learned District Judge which is based on correct appreciation of the evidence on record and the law applicable. In view of the above, there is no merit in the petition which is dismissed accordingly. Q.M.H./M.A.K./J‑64/L Petition dismissed.