P L D 2004 Lahore 330 (PLP)

‑‑‑‑S. 26‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.‑‑‑Provision of S.26 of Contract Act, 1872‑‑‑Scope‑‑‑Such provision would not cover documents creating partial or indirect restraints on marriage in the sense not restricting marriage though adversely making liable to do some thing or pay some amount in lieu of marriage‑‑‑Agreement to pay to wife a specified amount in case of, divorce or remarriage would not be in restraint of marriage and could not be considered as void being violative of such provision. Emperor v. Po Thin AIR 1914 Lower Burma 156(1) and Muhammad Ali. v. Ayesa Khatun AIR 1916 Cal. 761 ref. Haji Malik Muhammad Qasim Joyia for Petitioner. Amir Abdullah Khan Niazi for Respondent. This civil revision assails judgment and decree dated 24‑5‑2003 passed by learned Additional District Judge, Mianwali, whereby appeal of the respondent was accepted, reversing the judgment and decree dated 6‑6‑2001 of the trial Court, suit for recovery of Rs.25,000 filed by the petitioner, was dismissed.

2. A short factual background of the cast is that Mst. Zainab Khatoon‑petitioner filed a suit for recovery of an amount of.Rs.25,000 averring that she was married with the respondent on 25‑3‑1985 and had been performing her marital obligations. Two sons and a daughter were born out of his wedlock, but relations between the spouses did not remain cordial and the marriage was ultimately dissolved on 13‑2‑1997 through a divorce by the respondent. Petitioner had claimed in the plaint that since Nikahanama at the time of marriage, was prepared by her parents without her consent, subsequently, respondent executed an agreement dated 26‑3‑1985 taking the responsibility of payment of Rs.50,000 to the petitioner in case of divorce by him and also detailed this fact in column No. 19 and 20 of the Nikahnama. Though respondent was liable to pay an amount of Rs.50,000 under the agreement dated 26‑3‑1985, petitioner pleaded in her plaint, that she being incapable to pay the court‑fee, foregoes her claim with regard to Rs.25,000 to bring her suit within the limits in which court‑fee is not payable.

3. Respondent being defendant in the suit contested it by controverting the assertions in the plaint and besides denying his liability to pay Rs.50,000, as claimed by the petitioner, pleaded that petitioner herself through an agreement dated 30‑6‑1990 had cancelled agreement dated 26‑3‑1985 and relinquished her rights to claim anything, thereunder. Controversial pleadings of the parties necessitated framing of issues and production of evidence by the parties, on the basis of which learned Civil Judge, who was seized of the matter, vide his judgment and decree dated 6‑6‑2001 decreed the suit of the petitioner, as prayed.

4. Respondent being aggrieved of the decision of the trial Court dated 6‑6‑2001 filed an appeal before the Additional District Judge, Mianwali, where he succeeded as his appeal was accepted and suit of the petitioner was dismissed vide judgment and decree dated' 24‑5‑2003. Petitioner has now come up in revisional jurisdiction of this Court, for annulment of the appellate judgment and decree.

5. Case of the petitioner as put forth by her counsel is that respondent having, himself on 26‑3‑1985, executed an agreement (Exh.PA) undertaking responsibility to pay the petitioner an amount of Rs.50,000 in case of divorce or second marriage without her consent, should not now be permitted to resile from his commitment, as he has divorced the petitioner without her consent. It has further been submitted that view of the Appellate Court that agreement (Exh.PA) was not proved due to denial of its execution by the respondent, by producing two marginal witnesses, is misplaced because the respondent himself by producing mark `A', an agreement dated 30‑6‑1990, admitted that he did execute agreement dated 26‑3‑1985. According to his submissions a document, which is admitted between the parties, need not be proved at the trial. Learned counsel for the petitioner also complained that. Appellate Court while reversing well reasoned judgment of the learned trial Judge, has not referred to evidence on the file as without meeting the points evolved therein, it could not pass the judgment and decree in favour of the respondent.

6. Conversely, learned counsel for the respondent refuting the submissions of the petitioner supported the appellate judgment and urged that agreement relied by the petitioner is in restraint of marriage and thus is void. He relying on section 26 of the Contract Act, referred to a judgment in the case of Emperor v. Po Thin (AIR 1914 Lower Burma 156 (1)), to contend that contract in restraint of marriage is void. In this behalf, he also referred to case of Mst. Nazar Rauf and 3 others. v. Dr. Riaz Ahmed and another (PLD 1988 Lahore 390) to contend that agreement dated 26‑3‑1985 in favour of the petitioner, on the basis of which suit in hand has been filed, is not proved according to Article 79 of the Qanun‑e‑Shahadat Order, 1984.

7. I have given my anxious thought to the respective submissions of the learned counsel for the, parties and have examined the record. Undeniably, the parties were husband and wife and gave birth to three children, but unfortunately respondent divorced the petitioner without her consent vide divorce deed dated 13‑2‑1997. Petitioner's case is that after marriage respondent through an agreement dated 26‑3‑1985 undertook to pay the petitioner an amount of Rs.50,000 in case of divorce or second marriage by him, without her consent. Respondent claimed that petitioner subsequently on 30‑6‑1990 rescinded the agreement dated 26‑3‑1995 and produced agreement as mark 'A'. I have examined the contents of mark `A', which recites that petitioner has relinquished her rights under the agreement dated 26‑3‑1985. Respondent by producing this document has himself admitted that agreement dated 26‑3‑1985 was, as a matter of fact, executed by him, which was claimed to have been rescinded by a subsequent agreement. Under law, execution of any admitted document need not be proved but in spite of it petitioner produced Malik Bashir Ahmed, an Advocate of Mianwali, who being a marginal witness of Exh.PA, deposed that he knows the parties and that respondent on 26‑3‑1985 executed the agreement (Exh.PA) and signed the same in his presence. An advocate, who is not related to the petitioner in any degree, cannot be believed to have deposed falsely, being a highly educated and well placed person in the society. Statement of P.W.2 coupled with document Exh.PA, leaves no room to hold that respondent No.1 did not act in the manner claimed by the petitioner in her plaint and statement as P.W.2. Appellate Court while reversing judgment of the, trial Court did not advert to the provisions of Article 81 of the Qanun‑e‑Shahadat Order, 1984, which reads as under:‑‑ "

81. Admission of execution by party to attested document.‑‑ The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested."

8. It is manifest from the above‑reproduced provision of law that where the execution of document is admitted or is not denied, admission thereof is sufficient proof of its execution. I consequently, hold that mark 'A' containing admission of execution of Exh.PA is enough proof of the fact that respondent did execute this document and no further proof was needed in terms of Article 79 of the Order, 1984.

9. Agreement dated 26‑3‑1985 is not in restraint of marriage but is a contingent document increasing amount of prompt dower, in case petitioner is divorced against her wishes or respondent contracts second marriage. Section 26 of the Contract Act, 1872 does not cover documents creating partial or indirect restraints on marriage in the sense that it does not restrict marriage though it may adversely makes liable to do some thing or pay some amount, in lieu of marriage. Thus an agreement to pay a woman a specified amount, in case of divorce or remarriage, is not in restraint of marriage and cannot be considered, as void, being violative of the provisions of section 26 of the Act of 1872 (ibid). In a Division Bench judgment given in the case of Muhammad Ali v. Ayesa Khatun (AIR 1916 Calcutta 761) husband authorized his wife to divorce him, in case of his entering into tie of second marriage, it was held that agreement does offend section 26 of the Contract Act, 1872. Husband under law is competent to increase dower amount, after marriage and this document is of this nature and could be enforced against the respondent. Thus the judgment and decree impugned herein is tainted with material irregularity and illegality, thence is not sustainable at law. This revision petition, consequently, succeeds and judgment and decree dated 24‑5‑2003, passed by the Additional District Judge, Mianwali, is set aside with the result that judgment and decree passed by the Civil Judge, Mianwali, on 6‑6‑2001, will stand revived. This revision petition is accepted with no order as to costs. S.A.K./Z‑1/L Revision accepted.