1992CLC42 (PLP)

Nemo for the Remaining Respondents. Date of hearing: 8th October, 1991. For a proper appreciation of the points involved in this Constitution petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, which ate to be disposed of by this judgment, it is necessary to refer to the relevant facts in some detail.

2. The petitioner was married with respondent of on 11‑9‑1987 and their marriage was registered under the provisions of Muslim Family Laws Ordinance, 1961. After the marriage the respondent No.1 resided with the petitioner in village Chamber, Taluka Tando Allahyar. It is alleged that on 26‑9‑1987 the petitioner was arrested in a case registered at Sehwan P.S., under section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and during the course of investigation the respondent No.1 was recovered from his possession. The petitioner was, however, released on bail and thereafter he approached the respondents Nos.2 and 3 for the return of respondent No.1, but they demanded a sum of Rs.10,000 for her return. Having no other alternate the petitioner filed Family Suit No.1 of 1988 in the Court of Family Judge, Tando Allahyar which was decreed ex parte on 31‑3‑1988. The respondent No.1 also filed a suit for jactitation of marriage against the petitioner in the Court of Family Judge, Jacobabad, being F.C. Suit No.3 of 1988. The petitioner participated in the proceedings but due to his absence at some subsequent stage his side was closed and the suit was decreed on 24‑1 1989. The petitioner filed an appeal under section 14 of the West Pakistan Family Courts Act, 1964, before District Judge, Jacobabad but that too was dismissed vide judgment dated 27‑5‑1991. It is in these circumstances that the petitioner has invoked the constitutional jurisdiction of this Court by filing this petition.

3. I have heard Mr. Manzar Alam, learned counsel for petitioner and Mr. Gul Bahar Korai, learned counsel for respondents Nos.l and

2. The. learned counsel for the petitioner has referred to several points but eventually confned his arguments in main to the following contentions: (i) That the suit, as ,framed 'andu filed by respondent 4No.1 could not be said to be a suit for jactitation of marriage and the relief sought could only be granted by competent Civil Court and not by a Family Court. (ii) That the validity of marriage registered under the Muslim Family Laws Ordinance, 1961, could not be questioned by the Family Court and consequently the decree awarded by it was a nullity in the eyes of law. (iii) That a decree of restitution of conjugal rights was existing against respondent No.1, and therefore, the Judge of Family Court at Jacobabad had no jurisdiction to grant the relief sought by respondent No.1. (iv) That the petitioner was condemned unheard and he was not afforded an opportunity to contest the suit filed by respondent No.1 against him for jactitation of marriage.

4. The main object of a suit for jactitation of marriage is to perpetually silence a false allegation or claim put forward by the defendant, of a marriage having taken place between the defendant and the plaintiff. The case of Mirza Qamar Raza v. Mst. Tahira Begum and others, reported in PLD 1988 Karachi 169 appears to lend some colour to the view canvassed by learned counsel for the petitioner wherein a learned Single Judge of this Court observed as follows:‑ "It is noticeable that the Schedule under section 5 of the West Pakistan Family Courts Act as promulgated in 1964, did not include `Jactitation of Marriage", which was brought in by the amending Act of 1969. It is also noticeable that the Legislature did not include the `Marriage' or include matters (or all the matters) relating to marriage. It included, specifically, a matter called as `jactitation of marriage', thereby excluding all other matters relating to marriage from jurisdiction of the Family Court. It is settled law that a provision relating to the, conferment of jurisdiction on a Special Court or Tribunal and thereby excluding the general jurisdiction of ordinary Courts ,should be construed strictly. I am, therefore, of the view that the question of determination as to the definition of jactitation of marriage must be given a specific meaning and not an extended meaning as observed in P L D 1974 Lahore

78. Here, it is not that the petitioner (defendant) is making a false claim of marriage and that is why respondent No.1 (plaintiff) is asking for a declaration of the non‑existence of the marriage and consequently an injunction, against the petitioner not to call respondent No.1 as his wife. Therefore, the suit, as framed and filed by respondent No.1, cannot be said to be a suit of jactitation of marriage. It is a suit, if I may say so, jactitation of divorce and not the marriage for which it was Civil Court and not the Family Court who had the jurisdiction."

5. There is, however, plenty of authority in support of the view that it is the Family Court alone which is competent to grant relief of this nature. The case of Mst. Amina Begum v. Ghulam Nabi and 2 others, reported in P L D 1974 Lah. 78 is the important judgment on this point, wherein the word "jactitation" was defined and it was held that a suit for jactitation of marriage includes a suit for declaration by a person falsely posing to be the spouse of defendant.

6. The same view was reiterated in the case of Tajoo v. Mst. Sattaran, reported in P L D 1974 Lah. 105, wherein the folloiwng observations were made:‑‑ "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."

7. This view was followed in the cases of Mst. Zohran Bibi v. Manzoor Ahmad and 2 others, reported in P L D 1975 Lah. 318, Mst. Sakina and 2 others v. Nasir Ali, reported in P L D 1976 Quetta 97 and Malla v. Mst. Jawai, etc., reported in 1981 C L C 1097.

8. A case which is on all fours with the present case is the case of Muhammad Azam v. Muhammad Iqbal and others reported in P L D 1984 SC 95 decided by a Full Shariat Bench, wherein the entire available case‑law was considered and it was held that a suit for jactitation of marriage can be filed before a Family Court even by a person other than the spouses involved in jactitation of marriage. Again the character of a suit for jactitation of marriage is not altered by making additional prayer for adjudging Nikahnama as forged and seeking its cancellation. If any authority is needed, the case of Nazar Qasim v. Mst. Shaista Parveen reported in 1979 C L C 462, may be cited with advantage wherein it was observed:‑‑ "A perusal of the plaint of the respondent's civil suit shows that the respondent's plea is that the applicant falsely alleges that a marriage had taken place between her and the applicant on 17th February 1978 and further that the Nikahnama produced by the applicant as evidence thereof, allegedly bearing her signature, was also a false, forged and spurious document. The main prayer for the respondent's suit is for a declaration that "relationship of wife and husband never existed and does not exist between her and the applicant,' It is true that her subsequent prayers are for adjudging the Nikahnama dated 17th February, 1978 as a forged document and for its cancellation, But these additional prayers are consequential reliefs and, in my opinion, will not alter the character of her suit, which is essentially for perpetually silencing the alleged false claim of marriage put forward by the applicant. In My opinion, the suit continues to retain its character as a suit for jactitation of marriage, which is exclusively within the jurisdiction of the Family Court to entertain, hear and adjudicate under section 5 of the Family Courts Act, 1964 and, as such, its trial by Civil Court is barred." There is, therefore, an air of utter unreality about the first contention raised on behalf of the petitioner.

9. Section 23 of the West Pakistan Family Courts Act, 1964, makes it clear that the validity of marriages registered under the Muslim Family Laws Ordinance, 1961 cannot be questioned by a Family Court, nor shall any evidence in regard thereto be admissible before such Court. This provision of law, however, does not 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. The cases of Nazar Oasim v. Mst. Shaista Parveen reported in 1979 C L C 462, Malla v. Mst. Jawai, etc., reported in 1981 C L C 1097 and Muhammad Azam v. Muhammad lqbal and others reported in P L D 1984 SC 95 are fully attracted to meet such an exigency. In the last‑cited authority, the Supreme Court made it clear that section 23 of the West Pakistan Family Courts Act, 1964, assumes validity of marriage only if it satisfies certain conditions and this section would not prevent a party from showing either that marriage had not taken place at all or that fraud had been committed in connection therewith or for that matter Nikahnama was a forgery and/or that signatures therein were forged. As regards this question, the learned counsel for the petitioner has very little to say.

10. As regards the third contention, it may be observed that a decree for restitution of conjugal rights presupposes existence of a valid marriage between the parties and once a suit for jactitation of marriage is decreed, the decree for restitution of conjugal rights vanishes. The case of Muhammad Rafique v. Family Court reported in P L D 1985 Lah. 613 is a direct authority on this subject, wherein it was held that a decree for restitution of conjugal rights without determining the issue of validity of marriage does not bar a subsequent suit by the wife for jactitation of marriage.

11. The petitioner had contested the suit filed by respondent No. 1 against him for jactitation of her marriage. He was afforded a proper opportunity to contest the suit but he himself had preferred to remain absent and consequently the argument that he was condemned unheard is clearly misconceived. The petitioner had a remedy by way of an appeal which too was availed of by him and this time also he slept over his right and filed a belated appeal. The judgment of appellate Court makes it clear that the petitioner was only interested to protract the proceedings on one or the other ground and he was never serious to contest the matter. Even otherwise the relief sought by the petitioner is purely discretionary and looking to the past conduct of the petitioner and the fact that the respondent No.1 has contracted second marriage, I am of the view that the present petition merits dismissal and the same is accordingly dismissed with no order as to costs. AA./Y‑58/K Petition dismissed.