2016 PLP 793 (YLR)

M. TABASSUM AFTAB ALVI, J.

The supra titled appeal has been directed against the impugned decision dated 20.06.2015, recorded by the learned Judge Family Court, Sudhnoti, through which a suit for dissolution of marriage filed by appellants-plaintiffs was dismissed.

2. The precise facts culminating into filing of the instant appeal are that appellants-plaintiffs filed a suit for revocation of Nikahnama dated 04.05.2015, before Judge Family Court Sudhnoti, on 15.06.2015. It was asserted by appellants-plaintiffs that Nikahnama dated 04.05.2015, was fraudulently executed between Ajid Nawaz and Sehrish Ilyas respondents-defendants. It was alleged that witnesses of the aforesaid Nikahnama namely Muhammad Rizwan and Zarab Hussain were not present at the time of execution of the same. The learned trial Court recorded statements of respondents-defendants on 17.06.2015, who admitted execution of Nikahnama and stated that they are living as husband and wife happily. The trial Court after hearing dismissed the suit vide impugned decision dated 20.06.2015, hence, the instant appeal.

3. Sardar Mushtaq Hussain Khan, the learned counsel for appellants-plaintiffs submitted that without recording evidence of the witnesses of disputed Nikahnama suit filed by his clients, could not be dismissed by the trial Court. He emphasized that by setting aside the impugned decision the case may be remanded to the trail Court seized with the matter to decide the same afresh, in the interest of justice.

4. Raja Jahangir Akram, Advocate, appearing on behalf of respondents defended the impugned decision with full force and submitted that suit for dissolution of marriage could only be filed by a woman, while appellants are brother and father of Sehrish Ilyas, pro-forma respondent No.2, wife of respondent No.1, therefore, suit was bad in law, hence, submitted for dismissal of appeal.

5. Arguments heard and record perused.

6. The appellants-plaintiffs filed suit for dissolution of marriage against respondents-defendants asserting therein that Nikahnama dated 04.05.2015, was fraudulently executed between respondent and pro-forma respondent. The aforesaid appellants are real brother and father of pro-forma respondent Sehrish Ilyas, woman. As per section 2 of The Dissolution of Muslim Marriages Act, 1939, a suit for dissolution can be filed only by a woman, which is reproduced as under:-- "

2. Grounds for decree for dissolution of marriage.

A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:- (i) that the whereabouts of the husband have not been known for a period of four years; (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years; (iii) that the Husband has been sentenced to imprisonment for a period of seven years or upward; (iv) that the husband has failed to perform, without reasonable cause his marital obligations for a period of three years; (v) that the husband was impotent at the time of the marriage and continues to be so; (vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease; (vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen years; repudiated the marriage before attaining the age of eighteen years; Provided that the marriage has not been consummated; (viii) that the husband treats her with cruelty, that is to say, (a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (b) associates with women of evil repute or leads an infamous life, or (c) attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qur'an; (ix) on any other ground which is recognized as valid for the dissolution of marriages under the Muslim Law, Provided that-- (a) no decree shall be passed on ground (iii) until the sentence has become final; (b) a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorized agent within that period and satisfies the Court that he is prepared to perform his conjugal duties the Court shall set aside the said decree, and (c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband, to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground." Even as per rule 3 of the Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, the suit for dissolution of marriage, on any ground, can be filed by a female. The aforesaid rule speaks as under:-- "

3. Institution of plaint:--(1) A plaint under subsection (1) of section 7 shall be in writing, signed and verified by the plaintiff, and shall be presented to the Court, having jurisdiction under rule 4 of these rules by the plaintiff or through a Counsel, and where the plaintiff is a female by her agent. 2) .. (a) .. (b) .. (c) .. (d) .. (e) .. (f) .." According to sub-rule (1) of rule 3 of the Family Courts Procedure Rules, 1998, where the plaintiff is a female the suit can be filed by the said plaintiff through her agent. Admittedly Sehrish Ilyas, pro-forma respondent No.2, who is real sister of appellant No.1 Naveed Ilyas and daughter of appellant No.2 Muhammad Ilyas, never filed any suit for dissolution of marriage on any ground whatsoever. The respondents-defendants both are husband and wife who admitted execution of disputed Nikahnama. As per law laid down in Arif Hussain and another v. The State (PLD 1982 FSC 42) when husband and wife admitted nikah then production of two witnesses will not be essential. The ratio decidendi laid down in the aforesaid case at page 47 is reproduced as under:-- Therefore, allowing suit to be adjudicated upon by collecting evidence as craved by the learned counsel for appellants will be a futile exercise.

7. The learned counsel for appellants also admitted at Bar that respondent No.1 and pro-forma respondent No.2 are living happily as husband and wife and none of them has got any grouse against the disputed Nikahnama dated 05.04.2015. Therefore, findings recorded by the trial Court that appellants having no locus standi to file suit for dissolution of marriage, as per my humble view, are in accordance with law hardly need any interference of this Court.

8. The crux of above discussion is that finding no substance in the instant appeal, the same is hereby dismissed with costs. HBT/9/Sh.C.(AJ&K) Appeal dismissed.