2005 PLP 1615 (MLD)

On 22-5-2002, the petitioner filed a suit against respondents Nos.3 and 4 seeking jactitation that she is not legally wedded wife of respondent No.3 but is wife of respondent No.4. According to the plaint Nikah of petitioner and respondent No.4 was performed on 25-11-2001 and no Nikah was performed inter se the petitioner and respondent No.3 and that she had been living with respondent No.4 as his wife. Her father Ghulam Farid came to their house and took her away and after taking a huge amount handed her over to respondent No.3 who had obtained her thumb-impressions on various papers. It was then explained that she was coerced to make a statement in this Court when she was produced by the bailiff. With these averments she sought the said decree. The suit was supported by respondent No.4 but was contested by respondent No.3 who alleged that she has admitted a valid marriage between the petitioner and himself in the course of Criminal Miscellaneous No.184-H of 2002. He claimed a valid Nikah between the parties. Following issues were framed by the learned trial Court:-- (1) Whether the suit is false and frivolous and the defendant is entitled to get special costs under section 35-A, C.P.C.? (2) Whether the plaintiff is estopped to file the suit by her act and conduct? (3) Whether defendant No.1 has no concern with the plaintiff and the impugned Nikahnama dated 29-8-2001 is null and void, against law and facts and is liable to be dismissed? (4) Whether the plaintiff is entitled to get decree for jactitation of marriage as prayed for? (5) Relief. Evidence of the parties was recorded. The suit was dismissed vide judgment and decree dated 20-9-2003. First appeal filed by the petitioner met the same fate vide judgment and decree dated 5-6-2004 of learned Additional District Judge, Multan.

2. Learned counsel for the petitioner contends that she was never duly confronted with the statement attributed to her having been made before this Court and as such the learned Courts below acted without lawful authority in relying upon the same and to discard the other evidence on record. Learned counsel has also placed on record certified copies of proceedings in the connected criminal case filed by the brother of the petitioner. Respondent No.3 has been duly served but had not put in appearance. He was proceeded against ex parte on 6-6-2005. His name has been called today as well but no one has turned up for him.

3. I have gone through the records. Now it will be seen that whereas the petitioner had denied a valid marriage with respondent No.3 who has asserted in affirmative, the learned Courts below have deemed it fit to burden her with the proof of negative. Be that as it may, I find that the petitioner was never confronted with the said statement which in fact saw the light of the day only in the closing statement of the learned counsel for the respondent No.3 who produced it as Exh.D.2. I also find that Ghulam Yaseen complainant of the criminal case as also witness named therein including Ghulam Farid, father of the petitioner whose statement has been primarily relied upon by the learned Courts below and Muhammad Shall who have resiled.

4. Even otherwise in absence of evidence of valid marriage, said statement if read as a whole would not constitute evidence of marriage particularly in view of evidence that it was procured under duress. Writ petition accordingly is allowed. The impugned judgment and decree passed by learned respondents Nos.1 and 2 is declared to be without lawful authority and are set aside. Resultantly the suit filed by the petitioner is decreed against the respondent No.3 without any orders as to costs. H.B.T./M-1170/L Petition allowed.