(a) West Pakistan Family Courts Act (XXXV of 1964)-----
----S. 5---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Constitution of Pakistan (1973), Art.199---Constitutional petition-- Marriage---Proof---Contradictions in statements---Evidence which could be produced but not produced ---Effect-- Jactitation of marriage---Onus to prove that respondent was married with the petitioner before marriage of the petitioner with respondent/other man was on the respondent---Contradictory statements of the witnesses were not sufficient to prove genuineness of the `Nikah' claimed by respondent with the petitioner ---Thumb impression on the "Nikahnama" was not got compared with the admitted thumb impression---Nikahnama was registered with delay of one month---Both the Courts below had failed to appreciate the contradictions and other material aspects appearing in the case---Constitutional petition was accepted; judgments and decrees of the Courts below were set aside---Suit of the respondent/husband was dismissed---Suit filed by the petitioner for jactitation of marriage with the respondent was decreed in the circumstances.
(b) West Pakistan Family Courts Act (XXXV of 1964)-----
----Ss. 5 & 23---Muslim Family Laws Ordi nance (VIII of 1961), S.5---Suit for jactita tion of marriage by wife---Registration of marriage---Two "Nikahnamas " were registered. Wife filed suit for jactitation of marriage shown under one "Nikahnama " Challenge was thrown to a Nikahnama which was owned by the man and woman who claimed to be husband and wife ---Pre sumption of truth is attached to Nikahnama acknowledged by both spouses.
PLD 1999 Lah. 494 quoted.
Syed Muhammad Ali Gillani for Petitioner.
Ch. Sarfraz Ahmad Zia for Respondent No.3.
RAZIA BIBI VS ADDITIONAL DISTRICT JUDGE, BUREWALA2005 Y L R 156[Lahore]Before Ijaz Ahmad Chaudhry, JRAZIA BIBI---PetitionerVersusADDITIONAL DISTRICT JUDGE, BUREWALA and 2 others---RespondentsWrit Petition No.5339 of 2000, decided on /01/.th June, 2004.
(a) West Pakistan Family Courts Act (XXXV of 1964)-----
----S. 5---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Constitution of Pakistan (1973), Art.199---Constitutional petition-- Marriage---Proof---Contradictions in statements---Evidence which could be produced but not produced ---Effect-- Jactitation of marriage---Onus to prove that respondent was married with the petitioner before marriage of the petitioner with respondent/other man was on the respondent---Contradictory statements of the witnesses were not sufficient to prove genuineness of the `Nikah' claimed by respondent with the petitioner ---Thumb impression on the "Nikahnama" was not got compared with the admitted thumb impression---Nikahnama was registered with delay of one month---Both the Courts below had failed to appreciate the contradictions and other material aspects appearing in the case---Constitutional petition was accepted; judgments and decrees of the Courts below were set aside---Suit of the respondent/husband was dismissed---Suit filed by the petitioner for jactitation of marriage with the respondent was decreed in the circumstances.
(b) West Pakistan Family Courts Act (XXXV of 1964)-----
----Ss. 5 & 23---Muslim Family Laws Ordi nance (VIII of 1961), S.5---Suit for jactita tion of marriage by wife---Registration of marriage---Two "Nikahnamas " were registered. Wife filed suit for jactitation of marriage shown under one "Nikahnama " Challenge was thrown to a Nikahnama which was owned by the man and woman who claimed to be husband and wife ---Pre sumption of truth is attached to Nikahnama acknowledged by both spouses.
PLD 1999 Lah. 494 quoted.
Syed Muhammad Ali Gillani for Petitioner.
Ch. Sarfraz Ahmad Zia for Respondent No.3.
ORDER
Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the judgments and decrees dated 17-4-2000 and 22-5-2000 passed by learned Judge Family Court, Burewala District Vehari and learned Additional District Judge, Burewala District Vehari respectively.
2. The brief facts leading to the filing of this writ petition are that the petitioner was marred with Nausher Ali and Nikah was duly registered on 30-4-1997. After marriage the petitioner started living with Nausher Ali as his wife. According to the petitioner she was abducted by respondent No.3 Muhammad Razzaq and he wrongly claimed that she was his wife. When Nausher Ali her husband came to know about illegal detention of the petitioner, he filed an application under section 100, Cr.P.C. whereupon warrant was issued and she was produced in the Court of learned Magistrate on 17-7-1997. There she made statement in favour of Nausher Ali to the effect that she was married with said Nausher Ali on 30-4-1997. However, she was sent to Darul Aman. Then the petitioner filed W.P. No.6096 of 1997 for her release and vide order dated 18-8-1997, the writ petition was dismissed by this Court with direction to the parties for determination of genuineness of Nikah by the Civil Court. Then respondent No.3 filed a suit for jactitation of marriage duly performed between the petitioner and Nausher Ali. The petitioner also filed a suit for jactitation of marriage against respondent No.3 Muhammad Razzaq. Both the suits were consolidated vide order dated 27-1-1998 and the controversial pleadings of the parties necessitated the framing of the following issues:--
(1)Whether the plaintiff Abdul Razzaq has no cause of action? OPD
(2)Whether Mst. Razia Bibi and Nausher Ali defendants are entitled to special costs? OPD
(3)Whether Razia Bibi has no cause of action and locus standi to file the suit?
(4)Whether Razia Bibi is estopped by her words and conduct to institute the suit?
(5)Whether the suit of Razia Bibi is liable to be dismissed in view of P.O. No.4?
(6)Whether Mst. Razia Bibi duly wedded wife of Muhammad Razzaq and Nikahnama between her and Nausher Ali is result of fraud etc.?
(7)Whether Razia Bibi is duly wedded wife of the Nausher Ali and Nikahnama dated 2-4-1997 in favour of Muhammad Razzaq is based on fraud etc.?
(8)Relief.
3. Muhammad Razzaq respondent No.3 in support of his claim appeared as P.W.3 and produced Ghulam Hussain Nikah Khawan (P.W.1), Anwar-ul-Haq Nikah Registrar (P.W.2), Nazir Ahmad (P.W.4) and closed the evidence by placing on record Nikahnama as Exh.P.1 and other documents.
4. The petitioner appeared as D.W.4 and produced Sufi Muhammad Ramzan Nikah Registrar (D.W.1), Muhammad Yaqoob (D.W.2), Muhammad Abbas (D.W.3), Nausher Ali (D.W.5), Khalid Nawaz, Junior Clerk (D.W.6), Barkat Ali Mian (D.W.7) and closed her evidence.
5. Learned Judge Family Court after hearing the arguments of both the learned counsel for the parties decreed the suit of respondent No.3 and dismissed the suit filed by the petitioner vide judgment and decree dated 17-4-2000 and against the same an appeal filed by the petitioner was also dismissed by the learned Additional District Judge, Burewala on 22-5-2000. Hence, this writ petition.
6. Learned counsel for the petitioner contends that onus was on respondent No.3 to prove his Nikah with the petitioner before 30-4-1997, but he failed to discharge his liability by producing sufficient evidence. It is next contended that Nikah with Nausher was registered on 30-4-1997 while the alleged Nikah of the, petitioner with Muhammad Razzaq was claimed to be registered on 4-5-1997. Further contends that there were contradictions in the statements of P.Ws.I, 2 and 3 regarding registration of Nikah as P.W.1 Ghulam Hussain who is residing at Karachi stated that when the Nikah was performed, Nikah Registrar Anwarul Haq was not present, but on the other hand P.W.2 claimed that Nikah was performed on 4-5-1997 and it was also registered on the same day in the presence of the Nikah Khawan. Respondent No.3 stated that Nikah Registrar was present at the time of performance of Nikah while P.W.1 Ghulam Hussain stated that Nikah was not registered on the said day and the Nikah Registrar was not present on the said day. According to the learned counsel this contradiction in the statement of the witnesses alone was sufficient to hold that respondent No.3 had failed to prove that Nikah was performed with the petitioner and his suit was wrongly decreed by the learned Courts below. Relies upon PLD 1999 Lah. 494, that if a Nikah is verified by a woman, presumption of truth is attached to such Nikah. It is further contended that it was wrongly claimed by respondent No.3 that Nikah was performed on 3-4-1997 as it was not registered in the office of Nikah Registrar till 5-4-1997 and the evidence produced by respondent No.3 was not sufficient to substantiate his claim.
7. Learned counsel for respondent No.3 on the other hand contended that consistent stand was taken by respondent No.3 that Nikah was performed on 2-4-1997 and it was registered on 4-5-1997 which fact has been proved through the statement of the witnesses. It is further contended that real maternal aunt of the petitioner was married with Nausher, which fact was supported by P.W.4 and he was not cross-examined on this point, hence, it became admitted fact and petitioner also could not contract Nikah with Nausher due to this reason. It is next contended that Nikahnama Exh.P.1 itself shows its date of registration as 4-5-1997 while the Nikah was performed on 2-4-1997. Further contended that P.W.2 has admitted that at the time of performance of Nikah, Nikah Register was not in his possession. Learned counsel contends that both the Courts have passed well reasoned judgments, which are maintainable.
8. I have heard the arguments of learned counsel for the parties and also perused both the impugned judgments and decrees as well as the evidence on the record. Respondent No.3 filed suit for jactitation of marriage and onus to prove that he was married with the petitioner before marriage of the petitioner with A Nausher Ali was upon respondent No.3 and in order to prove that his Nikah was performed with the petitioner on 2-4-1997, he produced Ghulam Hussain (P.W.1), according to whom he performed the Nikah but during cross-examination he claimed to be working at Karachi while running a Hikmat shop, but again stated that he was labourer there and he came from Karachi only on the asking of Muhammad Razzaq respondent No.3 but the Court had not summoned him. According to him at the time of Nikah other persons including Lumberdar were present and columns of Nikahnama were not filled by him but these were filled by the Nikah Registrar. He also stated that at the time of performance of Nikah, the Registrar was not available. He gave definite date of performance of Nikah but failed to give the date of last Eid-ul-Fitr and other important events. He also showed ignorance as to when Anwar-ul-Haq, Nikah Registrar had come back.
9. On the other hand, P. W .2 Anwar ul-Haq stated that Nikahnama Exh.P.1 was written in his hand writing and his signatures were affixed on the Nikahnama. According to him he had obtained their thumb-impressions and signatures before the witnesses and it was entered on 4-5-1997. He stated that he had made statement to the police that Nikah was performed by Ghulam Hussain before him and he entered the same. However, he (P.W.2) admitted that when Nikah was performed register of Nikahnama was not in his possession as it was deposited with the Union Council. It was also admitted by him that after one month of the performance of Nikah it was entered into the register. He failed to reply whether in between 2-4-1997 to 4-5-1997 he had entered any other Nikah in the Nikah Register.
10. Muhammad Razzaq respondent No.3 while appearing as P.W.3 claimed that Anwar-ul-Haq was present at the time of performance of Nikah and he filled the columns of the Nikahnama while P.W.4 who is uncle of respondent No.3 stated that Ghulam Hussain (P.W.1) had performed the Nikah and he was present at the time of performance of Nikah. According to P.W.1 thumb-impressions of the petitioner were obtained on it. Nikah Khawan Ghulam Hussain, P.W.1 himself denied presence of Nikah Registrar at the time of Nikah and entering of the contents of the columns of Nikahnama at that time. On the other hand, other witnesses claimed that entries were made on the same day and the thumb impressions and the signatures were also obtained from them.
11. The contradictory statements of the witnesses were not sufficient to prove the genuineness of the Nikah claimed by respondent No.3 with the petitioner. It is also worth mentioning that though there were alleged thumb-impressions of the petitioner on the said Nikahnama but no effort was made by respondent No.3 for comparison thereof with the admitted thumb-impressions of the petitioner Even otherwise, the performance of the Nikah of the petitioner with respondent No.3 was doubtful as admittedly, Nikah of Nausher Ali with the petitioner was held and registered on 30-4-1997 whereas alleged Nikahnama of respondent No.3 with the petitioner-was got registered with the delay of more than one month in the registration of Nikahnama which casts serious doubt about genuineness of the same. Both the Courts below have failed to appreciate the contradictions in the statements of the witnesses and other material aspects, which were sufficient to negate the version of the petitioner.
12. On the other hand, petitioner claims that she is legally wedded wife of Nausher Ali and their Nikah was duly entered on 30-4-1997 before registration of her alleged Nikah with respondent No.3. Moreover, the petitioner consistently claimed that she was legally wedded wife of Nausher Ali and in this respect when she appeared before the Judicial Magistrate on the application moved by Nausher Ali under section 100, Cr.P.C. she claimed her to be legally wedded wife of Nausher Ali and intended to go with him. She is consistently making such statements since 1997 that she was married with Nausher All and this Court in PLD 1999 Lah. 494, has held that where consent to a marriage is in dispute and a challenge is thrown to a Nikahnama which is being owned by a man and a woman who claim to be husband D and a wife then presumption of truth attaches to Nikahnama which is being acknowledged by both spouses and not by intervener.
12-A. As far as contention of learned counsel for respondent No.3 that Nausher being husband of real maternal aunt of the petitioner could not contract marriage with the petitioner is concerned, I have noticed that no documentary evidence was produced on the record to substantiate this factum, whereas Nausher husband of the petitioner when appeared as P.W.5 categorically denied his marriage with Mst. Kaneez, aunt of the petitioner. Hence, no question arises that he could not contract Nikah with the petitioner due to her falling within the prohibited degree.
13. For the foregoing reasons the impugned judgments and decrees passed by both the learned Courts below are not sustainable in the eye of law as the same have been passed against the evidence on record and while ignoring the law laid down by the superior Courts of this country regarding the issue in hand. Hence, this writ petition is accepted, the impugned judgments and decrees passed by the learned trial Court are set aside, the suit filed by respondent No.3 for jactitation of marriage is dismissed and that of filed by petitioner against the respondent No.3 is decreed. No order as to costs.
M.I./R-87/LPetition accepted.
Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the judgments and decrees dated 17-4-2000 and 22-5-2000 passed by learned Judge Family Court, Burewala District Vehari and learned Additional District Judge, Burewala District Vehari respectively.
2. The brief facts leading to the filing of this writ petition are that the petitioner was marred with Nausher Ali and Nikah was duly registered on 30-4-1997. After marriage the petitioner started living with Nausher Ali as his wife. According to the petitioner she was abducted by respondent No.3 Muhammad Razzaq and he wrongly claimed that she was his wife. When Nausher Ali her husband came to know about illegal detention of the petitioner, he filed an application under section 100, Cr.P.C. whereupon warrant was issued and she was produced in the Court of learned Magistrate on 17-7-1997. There she made statement in favour of Nausher Ali to the effect that she was married with said Nausher Ali on 30-4-1997. However, she was sent to Darul Aman. Then the petitioner filed W.P. No.6096 of 1997 for her release and vide order dated 18-8-1997, the writ petition was dismissed by this Court with direction to the parties for determination of genuineness of Nikah by the Civil Court. Then respondent No.3 filed a suit for jactitation of marriage duly performed between the petitioner and Nausher Ali. The petitioner also filed a suit for jactitation of marriage against respondent No.3 Muhammad Razzaq. Both the suits were consolidated vide order dated 27-1-1998 and the controversial pleadings of the parties necessitated the framing of the following issues:--
(1)Whether the plaintiff Abdul Razzaq has no cause of action? OPD
(2)Whether Mst. Razia Bibi and Nausher Ali defendants are entitled to special costs? OPD
(3)Whether Razia Bibi has no cause of action and locus standi to file the suit?
(4)Whether Razia Bibi is estopped by her words and conduct to institute the suit?
(5)Whether the suit of Razia Bibi is liable to be dismissed in view of P.O. No.4?
(6)Whether Mst. Razia Bibi duly wedded wife of Muhammad Razzaq and Nikahnama between her and Nausher Ali is result of fraud etc.?
(7)Whether Razia Bibi is duly wedded wife of the Nausher Ali and Nikahnama dated 2-4-1997 in favour of Muhammad Razzaq is based on fraud etc.?
(8)Relief.
3. Muhammad Razzaq respondent No.3 in support of his claim appeared as P.W.3 and produced Ghulam Hussain Nikah Khawan (P.W.1), Anwar-ul-Haq Nikah Registrar (P.W.2), Nazir Ahmad (P.W.4) and closed the evidence by placing on record Nikahnama as Exh.P.1 and other documents.
4. The petitioner appeared as D.W.4 and produced Sufi Muhammad Ramzan Nikah Registrar (D.W.1), Muhammad Yaqoob (D.W.2), Muhammad Abbas (D.W.3), Nausher Ali (D.W.5), Khalid Nawaz, Junior Clerk (D.W.6), Barkat Ali Mian (D.W.7) and closed her evidence.
5. Learned Judge Family Court after hearing the arguments of both the learned counsel for the parties decreed the suit of respondent No.3 and dismissed the suit filed by the petitioner vide judgment and decree dated 17-4-2000 and against the same an appeal filed by the petitioner was also dismissed by the learned Additional District Judge, Burewala on 22-5-2000. Hence, this writ petition.
6. Learned counsel for the petitioner contends that onus was on respondent No.3 to prove his Nikah with the petitioner before 30-4-1997, but he failed to discharge his liability by producing sufficient evidence. It is next contended that Nikah with Nausher was registered on 30-4-1997 while the alleged Nikah of the, petitioner with Muhammad Razzaq was claimed to be registered on 4-5-1997. Further contends that there were contradictions in the statements of P.Ws.I, 2 and 3 regarding registration of Nikah as P.W.1 Ghulam Hussain who is residing at Karachi stated that when the Nikah was performed, Nikah Registrar Anwarul Haq was not present, but on the other hand P.W.2 claimed that Nikah was performed on 4-5-1997 and it was also registered on the same day in the presence of the Nikah Khawan. Respondent No.3 stated that Nikah Registrar was present at the time of performance of Nikah while P.W.1 Ghulam Hussain stated that Nikah was not registered on the said day and the Nikah Registrar was not present on the said day. According to the learned counsel this contradiction in the statement of the witnesses alone was sufficient to hold that respondent No.3 had failed to prove that Nikah was performed with the petitioner and his suit was wrongly decreed by the learned Courts below. Relies upon PLD 1999 Lah. 494, that if a Nikah is verified by a woman, presumption of truth is attached to such Nikah. It is further contended that it was wrongly claimed by respondent No.3 that Nikah was performed on 3-4-1997 as it was not registered in the office of Nikah Registrar till 5-4-1997 and the evidence produced by respondent No.3 was not sufficient to substantiate his claim.
7. Learned counsel for respondent No.3 on the other hand contended that consistent stand was taken by respondent No.3 that Nikah was performed on 2-4-1997 and it was registered on 4-5-1997 which fact has been proved through the statement of the witnesses. It is further contended that real maternal aunt of the petitioner was married with Nausher, which fact was supported by P.W.4 and he was not cross-examined on this point, hence, it became admitted fact and petitioner also could not contract Nikah with Nausher due to this reason. It is next contended that Nikahnama Exh.P.1 itself shows its date of registration as 4-5-1997 while the Nikah was performed on 2-4-1997. Further contended that P.W.2 has admitted that at the time of performance of Nikah, Nikah Register was not in his possession. Learned counsel contends that both the Courts have passed well reasoned judgments, which are maintainable.
8. I have heard the arguments of learned counsel for the parties and also perused both the impugned judgments and decrees as well as the evidence on the record. Respondent No.3 filed suit for jactitation of marriage and onus to prove that he was married with the petitioner before marriage of the petitioner with A Nausher Ali was upon respondent No.3 and in order to prove that his Nikah was performed with the petitioner on 2-4-1997, he produced Ghulam Hussain (P.W.1), according to whom he performed the Nikah but during cross-examination he claimed to be working at Karachi while running a Hikmat shop, but again stated that he was labourer there and he came from Karachi only on the asking of Muhammad Razzaq respondent No.3 but the Court had not summoned him. According to him at the time of Nikah other persons including Lumberdar were present and columns of Nikahnama were not filled by him but these were filled by the Nikah Registrar. He also stated that at the time of performance of Nikah, the Registrar was not available. He gave definite date of performance of Nikah but failed to give the date of last Eid-ul-Fitr and other important events. He also showed ignorance as to when Anwar-ul-Haq, Nikah Registrar had come back.
9. On the other hand, P. W .2 Anwar ul-Haq stated that Nikahnama Exh.P.1 was written in his hand writing and his signatures were affixed on the Nikahnama. According to him he had obtained their thumb-impressions and signatures before the witnesses and it was entered on 4-5-1997. He stated that he had made statement to the police that Nikah was performed by Ghulam Hussain before him and he entered the same. However, he (P.W.2) admitted that when Nikah was performed register of Nikahnama was not in his possession as it was deposited with the Union Council. It was also admitted by him that after one month of the performance of Nikah it was entered into the register. He failed to reply whether in between 2-4-1997 to 4-5-1997 he had entered any other Nikah in the Nikah Register.
10. Muhammad Razzaq respondent No.3 while appearing as P.W.3 claimed that Anwar-ul-Haq was present at the time of performance of Nikah and he filled the columns of the Nikahnama while P.W.4 who is uncle of respondent No.3 stated that Ghulam Hussain (P.W.1) had performed the Nikah and he was present at the time of performance of Nikah. According to P.W.1 thumb-impressions of the petitioner were obtained on it. Nikah Khawan Ghulam Hussain, P.W.1 himself denied presence of Nikah Registrar at the time of Nikah and entering of the contents of the columns of Nikahnama at that time. On the other hand, other witnesses claimed that entries were made on the same day and the thumb impressions and the signatures were also obtained from them.
11. The contradictory statements of the witnesses were not sufficient to prove the genuineness of the Nikah claimed by respondent No.3 with the petitioner. It is also worth mentioning that though there were alleged thumb-impressions of the petitioner on the said Nikahnama but no effort was made by respondent No.3 for comparison thereof with the admitted thumb-impressions of the petitioner Even otherwise, the performance of the Nikah of the petitioner with respondent No.3 was doubtful as admittedly, Nikah of Nausher Ali with the petitioner was held and registered on 30-4-1997 whereas alleged Nikahnama of respondent No.3 with the petitioner-was got registered with the delay of more than one month in the registration of Nikahnama which casts serious doubt about genuineness of the same. Both the Courts below have failed to appreciate the contradictions in the statements of the witnesses and other material aspects, which were sufficient to negate the version of the petitioner.
12. On the other hand, petitioner claims that she is legally wedded wife of Nausher Ali and their Nikah was duly entered on 30-4-1997 before registration of her alleged Nikah with respondent No.3. Moreover, the petitioner consistently claimed that she was legally wedded wife of Nausher Ali and in this respect when she appeared before the Judicial Magistrate on the application moved by Nausher Ali under section 100, Cr.P.C. she claimed her to be legally wedded wife of Nausher Ali and intended to go with him. She is consistently making such statements since 1997 that she was married with Nausher All and this Court in PLD 1999 Lah. 494, has held that where consent to a marriage is in dispute and a challenge is thrown to a Nikahnama which is being owned by a man and a woman who claim to be husband D and a wife then presumption of truth attaches to Nikahnama which is being acknowledged by both spouses and not by intervener.
12-A. As far as contention of learned counsel for respondent No.3 that Nausher being husband of real maternal aunt of the petitioner could not contract marriage with the petitioner is concerned, I have noticed that no documentary evidence was produced on the record to substantiate this factum, whereas Nausher husband of the petitioner when appeared as P.W.5 categorically denied his marriage with Mst. Kaneez, aunt of the petitioner. Hence, no question arises that he could not contract Nikah with the petitioner due to her falling within the prohibited degree.
13. For the foregoing reasons the impugned judgments and decrees passed by both the learned Courts below are not sustainable in the eye of law as the same have been passed against the evidence on record and while ignoring the law laid down by the superior Courts of this country regarding the issue in hand. Hence, this writ petition is accepted, the impugned judgments and decrees passed by the learned trial Court are set aside, the suit filed by respondent No.3 for jactitation of marriage is dismissed and that of filed by petitioner against the respondent No.3 is decreed. No order as to costs.
M.I./R-87/LPetition accepted.
0 comments:
Post a Comment