Suit for jactitation of marriage

2022 MLD 1728 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S.5, Schd.Suit for jactitation of marriageNikhanamaProof

Petitioner/plaintiff filed suit for jactitation of marriage against defendant /respondent on the ground that alleged nikahnama relied upon by respondent was forged and fabricated

Petitioner filed present suit for jactitation of marriage which was decreed while maintenance to respondent was declined though no independent suit was filed

Respondent filed appeal against said judgement and decree, which appeal was allowed by Appellate Court

Held, that in a suit for jactitation of marriage as the present one undoubtedly the burden was upon petitioner/plaintiff to show that nikahnama was a forged and fabricated document

Petitioner attempted to cite a number of documents and referred to number of exhibits to dispute and establish doubtfulness of nikhanama as well as the depositions of the witnesses which were not even looked into by Appellate Court

Pleadings of some other litigation were also exhibited which showed that the marital ties of respondent with some other man, which documents were ignored by Appellate Court without any reasoning

Prima facie there was sufficient evidence to doubt about the authenticity of the Nikahnama

Deposition on oath by the petitioner had not been substantially refuted

Respondent had to discharge some burden prima facie by examining some material witnesses shown in Nikahnama

Defendant/respondent could have diluted the evidence that petitioner deposed and presented in Family Court in a number of ways

Evidence such as alleged signatures of the petitioner on the nikahnama as well as thumb impressions of the witnesses of marriage could have been sent or asked to be sent for verification

Witness whose thumb impression was available along with CNIC was disclosed as person 'F' whereas name of the witness who saw the appointment of Advocate for the bride was not disclosed but the thumb impression could have been sent to NADRA for the verification to obtain data as to whose thumb impression it was

Original Nikhanama could have been conveniently sent by Appellate Court for verification of petitioner's signature which was not done

Appellate Court was burdened with more responsibility if a judgment was being set-aside then in case where the judgement was being upheld, as Appellate Court could agree with the reasons assigned by the Trial Court

When the judgement and decree was being set-aside then strong reasons were required to be provided by the Appellate Court

General statement was given by the Appellate Court that the Trial Court had given much weight to the evidence adduced by the petitioner being more reliable and relevant in comparison to the evidence led by the respondent

Although nothing was stated as to why the judgement was being set aside, the only factors that prevailed with Appellate Court was that some photographs were filed and exhibited, which showed that petitioner and respondent were sitting together

Such pictures alone did not disclose or establish that there could only be a relation of husband and wife between them, hence on the strength of a photograph alone without any corroborating evidence the judgement and findings of Family Court were reversed

Material evidence was still missing and the Appellate Court should have asked for it and should have signatures of the petitioner on Nikahnama for the forensic analysis which may corroborate with evidence already available on record before delivering a final verdict

Petition was disposed of accordingly and case was remanded to Appellate Court for recording additional evidence and referring Nikahnama for a forensic analysis.

2021 YLR 43 ISLAMABAD Judicial Precedent

S. 5, Sched.Suit for jactitation of marriageMaintainability

For entertaining a suit for jactitation of marriage, foundation of marriage i.e. Nikahnama and existence of valid marriage is to be made subject of that litigation.

2020 YLR 1134 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S. 5, Sched.Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 3-GSuit for jactitation of marriageContention of plaintiff was that she was already married and defendant had prepared a fabricated NikahnamaSuit was decreed concurrentlyValidityNikah had to be performed in one meeting after proposal and acceptance in presence of witnesses

Muslim female of sound mind who had attained the age of puberty could validly contract marriage with a person of her own choice and she could not sever her marriage/Nikah so entered by her

Marriage would not be invalid in absence of the consent of Wali

Simple acknowledgement of husband and wife with regard to their Nikah was sufficient to prove the same

Court was bound to protect a valid marriage

Plaintiff had acknowledged her Nikah with her earlier husband and there was no alternate for the Court not to believe her statement

Appeal was dismissed in circumstances.

2020 CLC 1178 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 5, Sched.Qanun-e-Shahadat (10 of 1984), Art.129(g)Suit for jactitation of marriageWithholding of best evidenceScopePetitioner assailed orders passed by courts below whereby suit of respondent for jactitation of marriage was decreedValidityReport of Finger Print Bureau clearly mentioned that nikahnama did not bear the signatures of the respondent

Respondent in her plaint as well as evidence had categorically denied having entered into nikah with the petitioner and had stated that she was abducted and raped by the petitioner

Petitioner was required to prove the authenticity of the nikahnama when the same was denied by the respondent

Petitioner himself had appeared in the witness box and had produced his real brother who was also an accused person in the crime

Sole testimony of petitioner's brother was not sufficient especially when the Nikah Registrar and other witnesses were not produced

Presumption could be drawn against the petitioner for withholding best evidence

Suit for jactitation of marriage was rightly decreed in favour of the respondent and against the petitioner

Constitutional petition was dismissed.

2020 CLC 549 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.5, Sched.Suit for jactitation of marriageNikahnamaSignature and thumb impressions testVirginity testPlea of petitioner-wife that somebody else was managed by the respondent-husband in her place at the time of marriage

Held, that despite such plea the petitioner-wife opposed application of respondent-husband for comparison of her signatures and thumb impressions available on Nikahnama

If the petitioner was sure about the fact that she did not sign/thumb marked the Nikahnama, she was supposed to give consent for their comparison to unveil the truth

Likewise, during evidence the petitioner side offered for virginity test of the petitioner but when respondent moved formal application in that regard, instead of fulfilling the undertaking given during the evidence, the petitioner opposed it tooth and nail which fact also supported plea of respondent that marriage between the parties was consummated.

2020 CLC 549 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.5, Sched.Suit for jactitation of marriagePlaintAllegation of a specific fact

When a party alleged a specific fact it was bound to prove the same.

2020 CLC 1691 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

S. 5 & Sched.Contract Act (IX of 1872), Ss.19 & 19-ASuit for jactitation of marriageVoidability of agreement of marriage without free consentPower to set aside contract induced by undue influenceScope

Plaintiff assailed order passed by Judge Family Court whereby her suit for jactitation of marriage was dismissed and the marriage was dissolved on the basis of khula

Validity

Plaintiff had, soon after the alleged nikah ceremony, went to the police station and lodged a compliant against her father and her alleged bridegroom, which strengthened the argument that her signature and thumb impression were taken with undue influence

Consent obtained by coercion or undue influence did not validate the marriage

Witnesses of the alleged nikah ceremony were not produced before the court

Appeal was accepted and the nikah was declared to be null and void.

2017 CLC 269 PESHAWAR-HIGH-COURT Judicial Precedent

S. 5, SchedConstitution of Pakistan, Art.199Constitutional petitionSuit for jactitation of marriageDissolution of marriage on the basis of khulaScopeSuit for jactitation of marriage was dismissed but marriage was dissolved on the basis of khulaValidityWife had not prayed for dissolution of marriage in the plaint but she was not ready to live with the husband as a wifeClaim of wife with regard to jactitation of marriage was found false

Parties had reached to such climax that they could not live as husband and wife together due to refusal of wife to live with husband at any cost and her desertion as well as registration of criminal case

Family Court had rightly come to the conclusion that dissolution of marriage was the only just option to part ways between the parties on basis of khula

Both the courts below had rightly exercised their jurisdiction according to law and attended to all the material aspects of the case and had considered each and every important piece of evidence

No illegality, material irregularity, misreading or non-reading of material evidence had been pointed out

Constitutional petition was dismissed, in circumstances.

2017 YLR 2144 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

S. 5 & Schd.Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44Suit for jactitation of marriageAllegation of fictitious NikahnamaApplication of the defendant for comparison of signatures of the plaintiffDismissal of application of the defendantChallenging interim order in writ petitionMaintainability

Petitioner/defendant contended that comparison of signature of plaintiff on marriage certificate and the statement recorded before Family Court was necessary and application was wrongly dismissed by the Family Court

Respondent/plaintiff challenged writ petition as remedy of appeal was not available against interim order

Validity

Remedy of appeal had not been provided against an interim order of the Family Court; the wisdom of the Legislature was to avoid the procrastination of the family matters, and under law, such lacunae could also not be filled in by invoking the extraordinary jurisdiction of the High Court

Writ petition could not be invoked as an alternative of appeal or revision

When no appeal or revision was provided against interim order, same could not be challenged through writ petition

Court would not act in a manner by which, object of statute was defeated or rendered nugatory

High Court observed that petitioner could agitate his contention at the stage of final arguments and in case of an adverse order, re-agitate his point in appeal but in the circumstances he could not be permitted to procrastinate and linger on the proceedings of a family suit, without any justification for an indefinite period

No force having been found in the writ petition, same was dismissed accordingly.

2016 YLR 2102 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S.5, SchedContract Act (IX of 1872), Ss. 16, 10 & 11Suit for jactitation of marriageUndue influenceEffect

Defendant could not succeed in establishing that any valid marriage was contracted by the plaintiff or she was legally capable of contracting such marriage

Element of undue influence could not be ruled out in the present case

Alleged contract of marriage was result of undue influence

If alleged contract of marriage stood proved even then it was not "valid" and would be deemed to be result of undue influence as plaintiff had denied the same

Shariat Court had rightly decreed the suit of plaintiff while declaring the contract of Nikah as ineffective and inoperative

Appeal was dismissed in circumstances.

2014 MLD 1664 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 5, Sched. & 11(3)Constitution of Pakistan, Art.199Constitutional petitionSuit for jactitation of marriageClosure of defendant's right to cross-examine plaintiff's witnessesValidityNo mala fide was ascribed to defendant/petitioner for seeking adjournment on his behalfImpugned order did not mention that defendant's counsel avoided or refused to cross-examine the witnesses in attendance

Right of cross-examination under subsection (3) of S.11 of the West Pakistan Family Courts Act, 1964 was very valuable right and same could not be taken away without compelling reasons for exercising discretion against a party

Defendant should have been allowed time to cross-examine the witnesses produced by plaintiff, especially when defendant's Counsel was in attendance on the date of impugned order which was sustainable

Petition was accepted

Impugned order was set aside

Parties were directed to appear before Trial Court

Defendant was given one/final opportunity to cross-examine the witnesses

Order accordingly.