P L D 1976 Lahore 290 (PLP)

A. R. SHEIKH, J.-This appeal is directed against the decree of the District Judge dismissing the petition of Samual Masih appellant under section 32 of the Divorce Act, for restitution of conjugal rights filed against Mst. Teresa Mariam respondent. Briefly summarised the facts as given in the petition are that the spouses were married according to the Christian rites and faith on the 18th of October 1964; there have been two children out of wedlock; the respondent left appellant's home sometime in April 1967 and has thus deprived him of her society without any lawful excuse and as such he is entitled to a decree for restitution of conjugal rights. The respondent, on the other hand, pleaded that she has been maltreated by the appellant, who has been cruel to her and has been giving her severe beating; he has falsely accused her of adultery, thus torturing her mentally; he has deserted her inasmuch as he turned her out of his home in April 1967 when she was pregnant and quick with the second child and ever since he has not cared to take her back. She also pleaded that according to an agreement (Exh. R. 6) executed between the parties on the 1st of March 1968, the appellant had not only divorced her but had also surrendered his right to custody of the children and has further undertaken to pay a sum of Rs. 250 by way of arrears of maintenance and in case of breach of the agreement he is liable to pay Rs. 2,000 by way of penalty. The suit was described as an attempt to nullify the decree passed in favour of the respondent by the Arbitration Council of the area and the appellant was not entitled to any relief. The learned District Judge proceeded to frame the following issues on the pleadings of the parties: "(1) Did the respondent desert the petitioner her husband, without any lawful excuse? O. P. R. (2) Is the petitioner entitled to claim restitution of conjugal rights? O. P. P. (3) Whether the agreement dated 1-3-68 filed in the Court of Additional Civil Judge, Campbellpur, was obtained by fraud, and if not, what is its effect? O. P. P. (4) Relief." The appellant produced five witnesses including himself while the respondent examined three witnesses and she also appeared as her own witness as D. W.

4. The documentary evidence consists of Exhs. R. 3 to R. 7, statements of witnesses examined before the Arbitration Council, statements of the spouses before the Arbitration Council, and agreement Exh. R.

8. The learned District Judge has found, on the basis of this evidence, that the agreement (Exh. R. 8) sufficiently shows that the appellant had divorced the respondent and it is also proved on the record that the wife had been deserted and, therefore, no case has been made out for grant of a decree for restitution of conjugal rights.

2. The first argument advanced by learned counsel for the appellant is that the learned lower Court has misappreciated the facts and has fallen into an error in relying on the maintenance proceedings before the Arbitration Council as if the parties were Muslim citizens. It has been vehemently contended that the Muslim Family Laws Ordinance (VIII of 1961) is applicable to Muslim citizens of Pakistan and not to citizens professing a faith other than Islam, and as admittedly the parties are Christian by religion, no proceedings for maintenance could have been initiated by the wife before the Arbitration Council. To this objection there has been no satisfactory . reply on behalf of the respondent and we have no hesitation in holding that the parties being not subject to the law which was being applied to them` the proceedings before the Arbitration Council were coram non judice, and the decree passed by the Arbitration Council and the order,- in revision (In R.9) by the revisional authority in that regard all stand vitiated. It is not contended that the agreement Exh. R. 8 could be considered as a legal, valid and operative document of divorce because as per provisions of the Divorce Act, Christian marriages cannot be dissolved in any manner other than the procedure provided in the Act. We find that under section 33 of the Divorce Act, the responsive pleas in answer to a petition for restitu tion of conjugal rights have been confined to grounds for a suit for judicial separation or for a decree of nullity of marriage. 'Judicial separation' is dealt with in section 22 (reproduced below) of the Act: "No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards and such decree shall have the effect of a divorce a mensa et toro under the existing law, and such other legal effect as hereinafter mentioned." According to this section, the husband or the wife may obtain a decree of judicial separation on the ground of adultery or cruelty or desertion without reasonable excuse for two years or upwards. For purposes of nullity of marriage, we have to refer to sections 18 and 19 of the Act. The grounds available are enumerated in section 19, which reads: "

19. Such decree may be made on any of the following four grounds:- (1) That the respondent was impotent at the time of the marriage and at the time of institution of the suit; (2) That the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity; (3) that either party was a lunatic or idiot at the time of the marriage ; (4) that the former husband or wife of either party was living at the time of the marriage and the marriage with such former husband or wife was. then in force. Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud." It will be seen from the provisions above that the respondent wife could have pleaded adultery on the part of the husband or cruelty or desertion without reasonable excuse for two years or upwards in order to defeat the claim of the appellant husband, as these are the grounds available for judicial separation. She could also have raised any of the four grounds given in section 19, repro duced above, or could have objected to the grant of the decree on the ground -that her consent bad been obtained by force or fraud at the time of the marriage. Bearing these facts in mind, we proceed to scrutinize the written statement filed by the respondent in order to find out whether or not any plea available to her, according to law, has been raised in defence. Paras. 4 and 5 of the written statement are relevant for the purpose and we find that she has pleaded cruelty both physical and mental. She has also raised the defence of desertion in April 1967 and as the petition was presented on the 5th of June 1969, it may be a period of desertion of over two years from that point of view. She bas also, as already stated above, referred to accusation of charge of adultery and divorce by agreement Exh.

8. These pleas do no appear to have been put in issue and this omission coupled with the fact that irrelevant material has been taken into consideration while deciding the case, requires serious consideration. The agreement Exh. P. 8 is of little evidentiary value, as the same appears to have been the result of security proceeding before the criminal Court, which proceedings arose out of an alteration before the Arbitration Council not competently siezed of the maintenance petition. Be that as it may, this document as clearly held above cannot in any manner operate as a deed of divorce. It is an established proposition of law that when' a Court or a Tribunal considers material, both relevant and irrelevant, it cannot be said how far the mind of the Court or the tribunal has been influenced by that irrelevant material and, therefore, the decree under appeal is not sus tainable. Learned counsel for the respondent has attempted to argue that the statements of Abdur Rashid (D. W. 3) and Sattar Shah (D. W. 1) can bed, read to show that as a matter of fact the husband had accused the wife of adultery in their presence and that should be taken in support of the assertion of the respondent that she had been maltreated or she has been deserted for a period of two years or upwards. We have considered this argument and we do not find it inspiring.

4. For the reasons above, the appeal succeeds and is allowed. The decree of the District Judge is set aside and the suit is sent back to the District Judge for trial afresh after framing proper issues, in the light of the observations above and in accordance with law. There will be no order as to costs. S. A. H. Appeal allowed. Case remanded.