2003 PLP 400 (YLR)

Or of marriage with another woman with adultery, Or of rape, sodomy or bestatlity, Or of adultery coupled with such cruelty as without adultery would have entitled her to divorce a mensa et toros, Or of adultery coupled with desertion, without reasonable excuse for two years or upwards." Section 13 is the dismissal of petition and section 14 is the power of Court to pronounce decree for dissolving marriage. Section 18 prescribes the petition for decree of nullity of marriage which shows that any husband or wife may present a petition to the Court of Civil Judge, praying that his or her marriage may be declared null and void. Section 19 prescribes the grounds of decrees as reproduced below:‑‑ "Grounds of decrees.‑‑‑Such decree may be made on any of the following grounds:‑‑ (i) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit; (ii) that the parties are within the prohibited decrees of consanguinity (whether natural or legal) or affinity; (iii) that either party was a lunatic or idiot at the time of the marriage; (iv) 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 Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud."

6. Undoubtedly the suits were filed under section 10 of the Christian Divorce Act, 1869 before the learned Civil Judge, Samundri but the grounds envisaged in the petitions showed that:‑‑ Besides these grounds in paragraphs 4 and 5 ground of adultery was also taken and that also enmity existing between the parties. These civil petitions were vehemently opposed by the petitioners/defendants and preliminary objections were taken that suits are not maintainace under section 10 of the Christian Divorce Act, 1869 and also on other grounds. Following issues were formulated:‑‑ (i) Whether the petitioner is entitled to a decree of divorce. If so, on what grounds? OPA (ii) Whether the petition is not maintainable under section 10 of Christian Divorce Act? OPR (iii) Order. Parties led their evidence. A.W.1 Maqsood Bibi appeared as her own witness and stated in her examination‑in‑chief that her marriage was solemnized 4 years before and at that time she was minor and the Nikah was solemnized by Per Zulfiqar against her consent. She stated in her cross‑examination that she does not know whether she is Protestant or Catholic. However, she is Christian and Peer Zulfiqar is Peer. She denied all the suggestions. A.W.2 Ilyas Masih supported her version that Nikah was solemnized 4 years before but Rukhsati did not take place and Peer Zulfiqar through coercion got this Nikah as the Peer was greedy. In his cross‑examination he stated that defendant was working under Peer Zulfiqar and under this greed he got this Nikah solemnized. He further stated in his cross‑examination that defendant had relations with other women and he is physically incapacitated and they are Christians under the Church of Protestant. Rafaqat Masih D.W.1 appeared and stated that his marriage was solemnized with the plaintiff/respondent and she has good relations with him and he wants restoration of conjugal rights. In his cross‑examination he stated that at the time of marriage he was 20 years of age and plaintiff was also major. She stayed one day and she went in the evening. Maqsood Bibi again appeared in rebuttal and stated that the petitioner/defendant had relationship with the women of selling bangles and he commits adultery with them. Both the plaintiffs/respondents appeared before this Court and stated that they will rather prefer to die than to go with the petitioners. Similarly in suit for dissolution of marriage tiled by Mst. Razia Bibi against Riasat Masih she appeared as A.W.1 and stated that her marriage was solemnized during minority and under undue influence exerted by Peer Zulfiqar and is supported by A.W.2 Ilyas Masih and A.W.3 Riaz Masih and they produced the marriage certificate Exh.A./1.

7. As far as the arguments advanced by learned counsel for the petitioner is concerned that the learned Appellate Court was bound to frame an issue regarding the nullity of marriage and then remand the case to the learned trial Court and get it decided afresh. Undoubtedly from the perusal of statement and facts narrated in the plaints show that the same were for declaration of nullity of marriages but filed under a wrong section. Even the evidence produced by the parties and also admitted by the parties show that marriages were solemnized by one Peer, who had great influence over the parties. It was incumbent upon the learned trial Court to formulate an issue on this point as the pleadings of the parties disclosed that they were alleging that they were given in marriages without the consent of the plaintiffs. But the learned trial Court dismissed .the suits under section 10 of the Christian Divorce Act. On appeal the learned Appellate Court passed a decree under section 19 of the Christian Divorce Act. The question whether the learned Appellate Court without framing an issue could proceed under section 19 of the Christian Divorce Act, the only exception to this objection is Order 41, rule 33, C.P.C. which is reproduced below:‑‑ "Power of Court of appeal.‑‑‑The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, alongwith such respondents or parties may not have filed any appeal or objection: Provided that the Appellate Court shall not make any order under section 35‑A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. " Object of this rule is to empower the Court to complete justice and to readjust the rights of other parties. Ordinarily an Appellate Court will not take notice of events that have taken place after the judgment of the lower Court but in order to shorten litigation and to attain the ends of justice the Appellate Court can take note of events subsequent for the passage of the impugned decree or order PLD 1978 SC 220 and the learned. Appellate Court can pass a decree or order which ought to have been passed PLD 1991 SC 218, 1991 SCMR 515, PLD 1976 SC 634 and 1985 CLC 1527 and under circumstances where issues were not framed but allegations made in the plaint challenged in the written statement and Court was allowed evidence to be led then decision rendered without framing of issues was not illegal 1993 SCMR 208.

8. The parties are litigating since 1995. According to the statement of parties they are going thr9ugh an agonizing and painful situation, where a woman even appearing before High Court refuses to go with her husband. As no religion allows a hateful union which is not based on true consent of the parties. Specially in Christian Marriages Act, where marriage is a sacrament and at the time of marriage both the parties vow to stand together in sorrow and happiness etc. till death departs them. In evidence it is established beyond doubt that the vital role in the marriages between two spouses who were Christian was performed by one peer Zulfiqar under whose influence the parties were wedded. This factum is admitted by the petitioners/respondents in their evidence before the learned trial Court. It was incumbent upon the learned Courts below to give an alternative decree under the pleas taken on the statement of facts in suit and then the evidence produced by the parties to prove those facts, therefore, merely saying that inconsistent plea was taken and the learned Appellate Court has given decision as envisaged in the Ala ud Din v. Mst. Farkhanda Akhtar (PLD 1953 Lah. 131) is not weighty.

9. Keeping in view all the above circumstances and facts and law on the subject‑matter, no interference is called in the judgment passed by the learned Appellate Court hence, the instant civil revisions are dismissed. No order as to costs. H.B.T./R‑205/L Revision dismissed.