1995 PLP 1080 (CLC)

This application under sections 9, 151 and Order 7, rule 11(d), C.P.C. has been moved on behalf of the defendant No.2, and although no specific prayer for the rejection of plaint has been made, in effect this is what the said defendant seeks on the ground that, "suit relates to settlement and disposal of disputes relating to marriage and family affairs cognizance of which is barred under the exclusively vested in Family Court under the Family Courts Act. 1964". It will be beneficial to briefly set out the facts as alleged in the plaint in order to appreciate the contention of the learned counsel for the parties. The plaintiff, who was a follower of Aghakhani sect became a Sunani Muslim and asked his wife to do the same, failing which, on expiry of four months and ten days, she would cease to be his wife. It is alleged that in order to force the plaintiff to revert to the Aghakhani sect he was terrorised, threatened 4ad criminally assaulted but on his refusal the relatives and other members of the community focused their attention on his wife and started instigating her against the plaintiff. At one stage the defendant No.6 even took away plaintiffs wife from his house. In the meanwhile, the plaintiff sent a letter (Annexure E to ‑ the plaint) to the defendant No.1 inter alia requesting him to call the Punchait committee to inform his wife that if she embraces Islam they can, live together. After this letter the plaintiff received from the defendant No.1 a notice requiring him to nominate a representative which he did. However, it is stated that the defendant No.1 wrongly treated the 'said letter as a notice regarding `Talaq' and issued the impugned notice. Subsequently, several persons are alleged to have approached the plaintiff at the instance of defendant No.1 and asked him to attend his office in connection with some application said to have been moved by the plaintiffs wife. The plaintiff attended the office of defendant No.1 alongwith a friend when the defendant No.1 allegedly ordered the plaintiff to pay a sum of Rs. 500 immediately as advance towards expected delivery expense for his wife as also to pay a sum of Rs. 500 per month as maintenance to the wife. Later he also forced the plaintiff to sign a so‑called agreement (Annexure K to plaint) with regard to the payment of maintenance and observance of certain other terms. After the said agreement (Annexure K) the plaintiff sent a legal notice to the defendant No.1 setting out the various illegalities committed by him. Thereafter, the present suit was filed against the defendants claiming several reliefs of declaration, injunction and compensation for mental and physical torture etc. Mr. J.H. Rahimtoola, learned counsel for the defendants arguing in support of the application submits that mainly the suit relates to two controversies, firstly, about maintenance and secondly about plaintiffs marriage amounting to jactitation of marriage. He submits that by virtue of section 5 of the Family Courts Act dispute relating to both, maintenance and jactitation of marriage fall within the exclusive jurisdiction o'' the Family Court and therefore this Court has no jurisdiction in the matter. On the question of maintenance his contention is that, obviously the plaintiff is aggrieved by the proceedings taken by the defendant No.1 culminating in the agreement providing for maintenance for the wife which the plaintiff now seeks to anull under reliefs 2 and

3. In reply to my query the counsel stated that the proceedings for maintenance were initiated by the defendant No.1 under section 9 of the Muslim Family Laws Ordinance. As to his plea about jactitation of marriage he submits that the terra jactitation of marriage is of wide implication and would aot be confined to the false pretence of marriage by a spouse but also include such assertion by third parties and therefore a suit by the spouses against third party seeking to restrain him from disputing their marriage would be a suit for jactitation of marriage falling within the jurisdiction of the Family Court. Reliance is placed on the case of Muhammad Azam v. Muhammad Iqbal and others reported in PLD 1984 SC 95 wherein after examining several cases on the point it was observed by their Lordships at page 143 of the report that" "From these weighty observations it can safely be concluded that a suit, regardless of its timings can be filed by a person other than the spouses involved in the jactitation of marriage. And so can a suit be filed by the spouses, against the third party with a view to prevent them from denying their marriage." The learned counsel submits that in the present suit reliefs 1 and 4 to 7 in one way or the other relate to the affirmations of plaintiffs marriage with defendant No.8 and seeks to restrain the other defendants from interfering with or questioning the same, as such, the case would fall in the category of jactitation of marriage, triable exclusively by the Family Court. With regard to the relief 8 in respect of plaintiffs claim for compensation, the submission is that, as the main reliefs fell within the jurisdiction of the Family Court the ancillary relief for compensation arising out of the same cause of action would also fall within the jurisdiction of that Court. In support of his contention he referred to the case of Nazar 0asin; v. Mst. Shaista Parveen (1979 CLC 462). In that case it was held that: "The main prayer for the respondents suit is for a declaration that `relationship of wife and husband never existed and does not exist between her and the applicant'. It is true that her subsequent prayers are for adjudging the Nikahnama; dated 17th February, 1978 as a forged document and for its cancellation. But these additional prayers are consequential reliefs and, in my opinion, will not alter the character of her suit, which is essentially for perpetually silencing the alleged false claim of marriage put forward by the applicant. Lastly, it is contended that as the suit also seeks determination of religious rites and customs it is not maintainable. Mr. Asai Hussain appearing for the plaintiff submits that there was neither any question of maintenance nor of jactitation of marriage involved in the case. He states that the plaintiff has challenged the arbitrary and ill‑.gal acts of the defendant No.1 as the same were not in conformity with the provisions of law. As regards the declaration and injunction against the other defendants, his submission was that these were meant only to stop these defendants from harassing and threatening the plaintiff and his wife and from interfering with their freedom to profess a religion of their choice. Mr. Muhammad Muzaffarul Haque, Advocate appearing for defendant No.8, adopts the arguments of the plaintiffs counsel. I have considered the submissions made by the learned counsel. It is true that the plaintiff has challenged the alleged decisions of the defendant No.1, the notice issued by him and the agreement said to have been made in his presence, on the ground that these are contrary to the provisions of law but nowhere in this matter the jurisdiction of Family Court appears to be involved. It is not the; amount of maintenance that is disputed, it is the very exercise of jurisdiction by defendant No.1 that is called into question, and the defendants counsel failed to point out any provision either under the Muslim Family Laws Ordinance or the Family Courts Act to show that such matters can be agitated, before the Family Court. The jurisdiction of the Collector under subsection (2) of section 9 of the Muslim Family Laws Ordinance is also limited to the revision of the certificate issued under subsection (1). However, no certificate was apparently issued in this case. Maintenance proceeding before the Family Court under the Family Courts Act is altogether separate from and independent of that under the Family Laws Ordinance. As regards the second point raised by the defendants' counsel about jactitation of marriage; that too has no force. No doubt the term jactitation of marriage is of wide implication and would seem to cover an assertion by either of the spouses or by a third party, denying the, marriage between the alleged husband and wife and would therefore include an action either by one of the spouses against the other or by the spouses against third party. Even so, the term would not appear to cover this suit. Here, the reliefs referred to by the defendant's counsel merely seek to restrain the third parties from creating hindrances in the family life of the plaintiff. A reading of the plaint and the reliefs would show that there is neither any dispute with regard to the validity of plaintiff's marriage with defendant No.8, nor any relief in that regard has been claimed. As to the last contention, it would seem that no determination of any religious rite or customs is sought in the suit. In view of the above discussion, prima facie, at this stage, this Court appears to have jurisdiction in the matter and I find no force in the application which is accordingly dismissed.

2. Mr. Warsi for Mr. Padhiar requests for adjournment on the ground that the latter is not well. Adjourned to a date in office. AA./A‑1504/K Application dismissed.