P L D 1974 Lahore 78 (PLP)

2. The brief facts are that the plaintiff-respondent filed a suit for declaration that Mst. Amina Begum petitioner is his legally wedded wife and for a permanent injunction restraining her from contracting marriage with any other person during the subsistence of her marriage with the plaintiff-respondent. It is alleged that the parties were married according to the Shariat but on 1-9-1969 the defendant-petitioner with the collusion of the defendant-respondent denied the subsistence of her marriage with the plaintiff in order to marry with some other person although her marriage with the plaintiff has not been dissolved so far.

3. An application under section 151, C. P. C. read with section 5 of the Family Courts Act was filed by the petitioner asserting that the civil Court had no jurisdiction in the matter for the reason that the suit being one for jactitation of marriage, was within the cognizance of the Family Courts only.

4. This application was dismissed by the learned trial Court by order dated 31-1-69 on the ground that a suit for jactitation of marriage is a suit by which the plaintiff wants to silence the defendants in regard to the latter's false pretence of marriage with the former. It was held that the present suit is a suit of converse nature as in the present case it was the defendant who was interested in silencing the plaintiff. Hence this petition.

5. The learned counsel for the petitioner contended that a suit by a person setting up a false marriage is as much a suit for jactitation as a suit denying the marriage.

6. The learned counsel for the respondent conceded that if the defendant-petitioner had filed a suit for declaration that she was not the legally wedded wife of the plaintiff-respondent, such a suit would have been a suit for jactitation and the jurisdiction of the civil Court regarding such a suit would be barred by section 5 of the Family Courts Act. He, however, contended that the present suit is not a suit for jactitation as it was not meant for silencing the pretender to a marriage. He also urged that the question of jurisdiction can be decided only on the basis of the plaint and not the written statement or application of the defendant.

7. The expression "Jactitation of marriage" is defined in the Wilson's, Anglo-Mohammadan Law as a suit to have declared that the defendant is not the wife or the husband of the plaintiff. In Halsbury's Laws of England (Third Edition), Volume 12, page 225, paragraph 418, the form of suit of jactitation has been dealt with as follows;

"False Boast of marriage.-If anyone persistently and falsely alleges marriage with another, the latter may obtain in a suit for jactita tion of marriage a decree of perpetual silence. Only the person complaining that he has so been misrepresented can present such a petition. It is now a rare procedure. A suit for jactit4tibn is the only case in which a matrimonial suit can as of right, be proceeded without pima facie proof of a marriage defacto." In Mir Asmat Ali v. Mahmudul Nisa (I L R 20 All. 96) the object of the suit was given as follows :

"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." These quotations undoubtedly support the respondent. They lay down the form of a suit for jactitation of marriage. The question, however, is whether this form is exhaustive of the above suits and whether the expression "jactitation of marriage" has been used in the Schedule to the Family Courts Act as referring to a suit of this form. I am of the view that this form is not exhaustive. It is only the usual form in which petitions for jactitation of marriage have been made in Ecclesiastical Courts.

8. The word "jactitation" according to the Twentieth Century Dictionary means "bragging, public assertion, esp. contentatious and false." "Jactitation of marriage" means "pretence of being married to another." In Goldstone v. Goldstone ((1922) 127 L T R 32), it was held that :- "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." The Dictionary meaning of the expression jactitation of marriage and the general definition given in this authority would go to prove that jactita tion is a false pretence of being married. It is not material whether the false pretence is made by the plaintiff or the defendant. What is relevant is that the boaster or pretender may be put to silence with the intervention of the Court. If it be essential to file a suit for permanent injunction to silence the person making the false claim, a suit for jactitation must be filed by the party denying the marriage. But such a relief is not necessary either under the law of England or the law in Pakistan. Thus in Schuck V. Schuck (1) and Igra v. Igra (2), both of which are referred to in Nur Shafi v. Nur Shafi (3), although the relief was asked for in the form of an injunction to restrain the respondents from asserting the marriage, such relief was refused and negative declarations were made. These cases arose out of petitions for jactitation of marriage i.e. for wrongfully asserting that a marriage existed where it did not. In Pakistan, section 42 of the Specific Relief Act, enables a person to file suit for declaration of his legal character. It has been held that suits for negative declaration are also competent as sec tion 42 is not exhaustive. A suit lies for a declaration that plaintiff is or is not the husband or wife of the defendant. Waryam Singh v. Phewon (4), Jaskaur V. Mehtab (5). In Salim Ullah Beg v. Matin Begum (6) it was held that a suit for declaration simpliciter that defendant was not adopted son of plaintiff, is competent. In Sughran v. Rehmat Ali (7), Muhammad Iqbal, J., as he then was, observed that it is wrong to say that a suit, for a negative declaration is not competent at all in law. In so ' me cases negative declarations are granted by the Court and they, in certain circumstances are necessary. In cases where some one claims to be the son of person, the latter can, by all means seek a declaration against him that his assertion is not correct. There indeed may be no immediate threat to the property of the plaintiff but if the assertion is not correct it might tarnish his name in society and further result in serious complications in future.

9. In a suit by a plaintiff, who denies the marriage, the declaration of the civil Court would be effective to silence the defendant. Similar consequences would follow if a suit for declaration about the existence of marriage is dismissed on the ground that there was no marriage at all or there is no subsisting marriage. Such decree is as effective in silencing the plaintiff as a declaratory decree obtained to silence the defendant. The term "jactitation of marriage," cannot, therefore, be confine to a suit for declaration that there was no marriage.

10. The West Pakistan Family Courts Act, as it clearly shows, has been enforced to make provisions for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs. Section 5 of the Act provides that subject to the provisions of the Muslim--Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961 the Family Court shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule These matters are ((1950) 66 T L R 1179) Dissolution of marriage, (A I R 1951 Pat. 404) Dower, ((1953) A E L R 783) Maintenance, (50 P R 1901) Restitution of Conjugal rights, (26 P R 1903) Custody of Children, (P L D 1959 Lah. 429) Guardian ship and (P L D 1965 Lah. 580) Jactitation of Marriage. The object of the Act is to give exclusive jurisdiction to the Family Courts in all matters relating to marriage. A suit for affirmative declaration about existence or subsistence of marriage is as much a suit relating to marriage as a suit for the negative declaration. The wider meaning of the expression "Jactitation of Marriage" will, therefore, advance the object of the Act. On principle also there appears to be no difference between a case where the party aggrieved against the false claim comes to the Court first or the other party invokes the jurisdiction of the Court. I do not see any reason why a suit for jactitation of marriage will not include a suit for declaration by a person falsely posing that he is the spouse of the defendant. In my view any declaration as to the status where one party alleges marriage and the other denies, it will amount to a decree for jactitation of marriage.

11. The argument of the learned counsel for the respondent that for determining the question of jurisdiction the Courts have to see only the written statement will not consequently be applicable to a suit or jactitation of marriage. In any case this question does not arise in the present case as the suit is based on the denial of marriage of the defendant petitioner.

12. The learned Civil Judge has exercised a Jurisdiction not vested in him by law by holding the suit to be within the jurisdiction of the civil Court only. I allow this petition, set aside the above order and direct the plaint to be returned to the plaintiff for presentation to the proper Court. S. A. H. Petition allowed.