KHULA PROCEDURE

In Islam, a married woman is permitted to seek a termination of her marriage contract through a Shariah Council / and Muslim judge (Family Court). The reasons, for seeking Khula should be founded upon valid reasons, such as immoral behaviour or mistreatment on behalf the husband towards his wife, a woman who feels she dislikes her husband and can no longer give him, his rights etc.

However, this decision should be given serious consideration – a woman is advised to abstain from seeking khula on baseless reasons and to exert necessarily efforts to maintain a harmonious and peaceful relation with her spouse with mutual respect and love.

In the unfortunate case, the marriage reaches a point of irreconcilable differences based on valid reasons, all efforts of reconciliation are exhausted and unsuccessful, then Islam has provided a solution for this case i.e. Khula. For more information contact us.

In Islam, a woman who wishes to terminate her marriage contract without the consent of her husband must do so by applying to the Shariah Council. This type of divorce is commonly referred to what is known as a Khula.

It is important to highlight that in order for a married woman to obtain a Khula, the Shariah Council must be satisfied there is a valid reason for an Islamic divorce to be granted. A valid reason covers matters such as adultery, domestic violence and other aspects of immoral behavior.

Grounds for Judicial Divorce on which a woman may seek khula include:

Desertion by husband for four years,

Failure to maintain for two years,

Husband contracting a polygamous marriage in contravention of established legal procedures,

Husband’s imprisonment for seven years,

Husband’s failure to perform marital obligations for three years,

Husband’s continued impotence from the time of the marriage,

Husband’s insanity for two years or his serious illness,

Wife’s exercise of her option of puberty if she was contracted into marriage by any guardian before the age of 16 and repudiates the marriage before the age of 18 (as long as the marriage was not consummated),

Husband’s cruelty (including physical or other mistreatment, unequal treatment of co-wives), and any other ground recognized as valid for the dissolution of marriage under Muslim law.

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Case Law (Petition for custody of a minor--E-mail was a form of documentary evidence)

 2020 C L C 1029

Guardians and Wards Act (VIII of 1890)---

----S.25---Family Courts Act (XXXV of 1964), S. 17---Qanun-e-Shahadat (10 of 1984), Preamble---Petition for custody of a minor---Additional evidence, production of---Requirements---E-mail or other digital Communications---Evidentiary value---Scope---Confronting witness with his earlier statement---Scope---Application for production and confrontation of e-mail to the witness was dismissed on the ground that same was not annexed or mentioned in the pleadings---Validity---Provisions of Qanun-e-Shahadat, 1984 were not applicable to the proceedings before Family Court but basic principle for recording evidence should be considered---Family Court could adopt any procedure which was not expressly barred or prohibited by law---Cross-examination was a litmus test of the truthfulness of the statement made by a witness on oath in examination-in-chief---Party conducting cross-examination could ask leading questions and confront the witness with previous statements whether same pertained to some other proceedings or event, subject to relevancy with the issue---E-mail or other digital communication of a witness might be treated as previous statement and confronted during cross-examination---Defendant in a family suit had to disclose all the documents relied by him---E-mail was a form of documentary evidence and same could be admitted as evidence---Measures were to be taken to protect the integrity and authenticity of email by digital signature and encryption---Reliability of email or other electronically generated documents might be subject to attack but a party could not be restrained to present it in the Court as a documentary evidence---If e-mails or other digital documents were generated or originated by a witness then same could be confronted to him during his cross-examination---Impugned orders passed by the Courts below were set aside, in circumstances---Petitioner might confront the respondent in the witness box during cross-examination with all the digitally created and communicated documents by her through email or social media, subject to relevancy of the same---Constitutional petition was allowed, in circumstances.

Muhammad Ijaz Ahmed Chaudhri v. Mumtaz Ahmed Tarar 2016 SCMR 1; Anwar Ahmed v. Mst. Nafisa Bano 2005 SCMR 152; Abdul Aziz v. Gulzar Ahmed 2006 CLC 1237; Mrs. Nargis v. Muhammad Tariq Moten SBLR 2012 Sindh 542; Allied Bank Ltd v. Asif Aziz Memon 2006 PLC 448; Messers Asghar Ali & Bros v. United Bank Ltd. 1987 CLC 504; Khizar Hayat v. Judge Family Court, Sargodha and another 2018 MLD 1480; Mst. Talat Shaheen and others v. Muhammad Ibrar and others 2012 MLD 216 and Alamgir Khalid Chughtai v. The State PLD 2009 Lah. 254 ref.

Amjad Ali and another v. Mst. Samara Yasmeen and 2 others 2012 MLD 14 rel.

Amel Khan Kasi and Waqar Ahmed for Petitioner.

Rauf Ahmed Butt for Respondent No.1.

Date of hearing: 16th July, 2019.

2020 C L C 1029
[Sindh]
Before Fahim Ahmed Siddiqui, J
TAIMOOR MIRZA----Petitioner
Versus
MALIHA HUSSAIN and others----Respondents
C.P. No.S-806 of 2019, decided on 1st August, 2019.

JUDGMENT

FAHIM AHMED SIDDIQUI, J.----Through the instant constitution petition, the petitioner impugns the order dated 23-05-2019 passed by the learned Additional District Judge-VII, Karachi South in Family Appeal No. 75/2019 as well as order dated 10-04-2019 passed by the learned XXI Family Court, Karachi South in G&W Application No.981 of 2015. Since, petitioner remained unsuccessful to confront respondent during cross-examination with some digital document as well as bringing them on record before the trial Court as additional evidence; therefore, he filed instant petition.
2. The factual matrix of the case are that the petitioner, who is an educationalist and the owner of 'the International School', entered into marital lock with respondent No. 1 in the year 2005. From the wedlock, the couple was bestowed by Almighty Allah with a daughter namely Rania Mirza (DOB 16-12-2006) and a son namely Saif Ali Mirza (DOB 03-08-2011). The marriage continued for some time but unfortunately it was ended through a divorce, which was finalised with mutual consent of the parties under a certificate dated 17-07-2014, issued by the Chairman Arbitration Council, Clifton Board. As per the Settlement, an arrangement for visitation right of the petitioner and maintenance of the minors was worked out, while it was also settled that the custody of the minors will remain with respondent No. 1. As per petition, the petitioner is continuously paying Rs.30,000/- as maintenance/expenses for minors while visitation was also continued in terms of the Settlement, and subsequently an additional amount of Rs. 5000/- was also started to be given as salary of maidservant on the demand of respondent No.1; while educational expenses of the minors were also borne by the petitioner being the students of his own school. Per memo. of petition, all of a sudden, respondent No. 1 restrained the minors from meeting with petitioner and then he received a legal notice from her demanding more money against the maintenance of minors and she also switched the school of minors. The petitioner filed aforementioned G&W Application and agitated the matter solely in the interest of minors up to the level of Apex Court and on the direction of the Hon'ble Supreme Court, meetings with minors were restarted and their education were resumed in the school of the petitioner.
3. Nevertheless, the aforementioned G&W Application proceeded further and evidence of the petitioner was recorded; thereafter respondent No. 1 entered into the witness box. At the time of her cross-examination, counsel for the petitioner confronted respondent No. 1 with a printout copy of an email. The counsel for the respondent No. 1 objected upon such confrontation and production of the said email on the ground that the same was not annexed or mentioned at the time of filing of application. Subsequently, the counsel for the petitioner filed an application for production of additional evidence to enable him to bring some documentary evidence on the record for producing and confronting the witness during cross-examination. Such application of the petitioner was dismissed by the learned Family Court and subsequently the appeal was also declined by the lower Appellate Forum through the impugned orders, as such the instant petition was filed.
4. Mr. Amel Kasi, learned counsel for the petitioner, while pressing the instant petition has argued at length. He submits that on the objection of the counsel for respondent, he was restrained from confronting an important witness with an e-mail being inadmissible. He submits that the email is admissible as a document and it cannot be objected. According to him, the trial Court has declined to entertain the document i.e. email as additional evidence on the score that it was not the primary evidence. He submits that not only the application of additional evidence was declined but even the review filed by the petitioner was also not entertained by the trial Court. After referring, paragraphs 6 and 7 of the review order, Mr. Kasi submits that the trial Court erred in holding that it was a photocopy but the fact is that it was a printout of the email received by the petitioner from respondent No.1. He submits that an application for additional documentary evidence was filed on the basis of the observation of the trial Court in the order dated 12-01-2019, but the same was dismissed by the trial Court through the impugned order dated 10-04-2019. He draws attention towards the appeal filed against the said order of the trial Court and submits that the same was also dismissed through another impugned order dated 23-05-2019. According to him, law does not prohibit to confront a witness with a document and its production during cross-examination. He further submits that even a party can have a right to produce a document at a subsequent time and even such request can be entertained at the appellate stage. He contends that in spite of non-applicability of Qanun-e-Shahadat and C.P.C.; such practice is allowed by the superior Courts since long. In support of his contentions, he relies upon a good number of case laws, which include;
i. Muhammad Ijaz Ahmed Chaudhri v. Mumtaz Ahmed Tarar (2016 SCMR 1).
ii. Anwar Ahmed v. Mst. Nafisa Bano (2005 SCMR 152).
iii. Abdul Aziz v. Gulzar Ahmed (2006 CLC 1237).
iv. Mrs. Nargis v. Muhammad Tariq Moten (SBLR 2012 Sindh 542).
v. Allied Bank Ltd v. Asif Aziz Memon (2006 PLC 448).
vi. Messers Asghar Ali & Bros v. United Bank Ltd. (1987 CLC 504).
vii. Khizar Hayat v. Judge Family Court, Sargodha and another (2018 MLD 1480).
viii. Mst. Talat Shaheen and others v. Muhammad Ibrar and others (2012 MLD 216).
ix. Amjad Ali and another v. Mst. Samara Yasmeen and 2 others (2012 MLD 14).
x. Alamgir Khalid Chughtai v. The State (PLD 2009 Lahore 254)
5. Mr. Rauf Ahmed Butt, advocate representing the respondent No.1, supports the impugned orders overwhelmingly. First of all, he clarifies that his objection before the trial Court was not regarding the admissibility of email but on the ground that it was not annexed or mentioned in the pleadings, as such the same cannot be produced even during cross-examination of a witness. After referring impugned order dated 12-01-2019 passed by the trial Court, Mr. Butt submits that findings and observations of the trial Court are not because of photocopy or printout but due to not filing or producing the same at the proper time. He emphasizes upon the exclusion of the provisions of Qanun-e-Shahadat and C.P.C. by referring Section 17 of the Family Courts Act, 1964 and submits that in view of such position; question of production of additional evidence does not arise in family cases. According to him, this point has properly adjudicated and elaborately discussed by the two forums below as such the instant petition is not maintainable against the concurrent findings. He submits that the petitioner is actually trying to delay the disposal of the Guardian and Ward proceedings before the Family Court in spite of directions of the Hon'ble Supreme Court. In this respect, he refers the order passed by the Apex Court in C.P. No. 465-K of 2016 in which a direction was given to the trial Court for disposal of the G&W case within a period of four months. In the end, he seeks dismissal of the instant petition with directions for early disposal of the case pending before the Family Court.
6. I have heard the arguments advanced and have gone through the available material and reliance placed before me. The controversy between the parties was evolved when the trial Court restrained the petitioner consul from confronting the respondent with an email printout during cross-examination. It was happened when an objection was placed by the learned advocate appearing for respondent before the lower forum. The learned trial judge considered the objection raised by the learned counsel for the respondent as reasonable and disallowed the presentation of such email as well as asking a question regarding the same during cross-examination through an order dated 12-01-2019 on the ground that it was not formally produced with the plaint. Facing such situation, an application for additional evidence was moved, which was also dismissed by the trial Court though impugned order after holding that the email is a photocopy, as such it is not a primary evidence. The appellate court also not entertained such request of the petitioner through another impugned order referred in the initial part of this judgment.
7. The whole controversy between the parties rests on this vital issue that which documents can be confronted during cross-examination and whether email is admissible in evidence. No doubt, provisions of the Qanun-e-Shahadat Order shall not apply to a proceeding before the Family Court but it does not mean that the basic principle of evidence will be overlooked at the time of recording evidence. Although, at the time of recording evidence, it is not necessary for a Family Court to follow the procedure laid down in different articles of the Qanun-e-Shahadat but at the same time it is necessary that the basic rules laid down under the jurisprudence of evidence should not be overlooked. The non-applicability of Qanun-e-Shahadat and Civil Procedure Code in family courts proceedings as provided under Section 17 is not amounting to a bar on family courts but its purpose is to give a freedom to family courts to adopt any procedure which is not expressly barred or prohibited by law. In this respect reliance may be placed upon the case reported as Amjad Ali and another v. Mst. Samara Yasmeen and 2 others (2012 MLD 14), wherein the learned writer judge of Lahore High Court has also quoted several celebrated judgements on the same issue, he speaks as:
"However, there is ample authority for the view that a Family Court can, for the purpose of settlement of matrimonial disputes, employ or adopt any procedure which is not expressly barred or prohibited by law. According to Muhammad Azam v. Muhammad Iqbal (PLD 1984 Supreme Court 95), a Family Court has been given a real inquisitorial jurisdiction by introduction of special procedure including an obligatory effort to discover possibilities of amicable settlement. A Family Court can, thus, follow a flexible and liberal procedure while proceeding with a family suit and can exercise all such powers as are not prohibited by the West Pakistan Family Courts Act, 1964. In Ejaz Mahmood v. Mst. Humaira and another (1983 CLC 3305) and Mirza Shahid Baig v. Lubna Riaz and 2 others (2004 CLC 1545), it was observed that the provisions of C.P.C. are not applicable to a family suit but the Family Judge can adopt any procedure which is not expressly barred by the Act and which is necessary to prevent the course of justice being deflected. Again in Abdul Majid v. Judge Family Court, Karore Pacca and 2 others (2003 YLR 884), it was held that a Family Court has to regulate its own procedure and can apply any procedure not prohibited by law. In this context, it may be added that although the provisions of the Code of Civil Procedure, 1908 and the Qanun-e-Shahadat, 1984, would not be applicable in stricto senso but the principles embodied therein sans technicalities could be applied by the Family Court to advance the ends of justice provided there is no conflict or inconsistency with the provisions of the West Pakistan Family Courts Act, 1964. In support, reference can be made to Akhtar Ali Said Bcha v. Mst. Naheed Bibi (PLD 2003 Peshawar 63) wherein it was observed that "The purpose of enacting Family Courts Act is to frustrate the technicalities for the purpose of justice between the parties in the shortest possible manner. All that the Family Courts Act has done is that it has changed the forum, altered the method of trial and empowered the Court to grant better remedies. The provisions of C.P.C. are not applicable in stricto senso to proceedings before the Family Court by virtue of section 17 of the West Pakistan Family Courts Act, 1964. The purpose of enacting special law regarding the family disputes is for the purpose of advancement of justice and to avoid technicalities. It is settled proposition of law that Judge Family Court is competent to regulate its own proceedings as the West Pakistan Family Courts Act, 1964, does not make provision for every eventuality and unforeseen circumstance."
8. From the above citation, it is clear that although provisions of Qanun-e-Shahadat are not applicable in family courts proceedings but the principle laid down in the Qanun-e-Shahadat can be followed. Hence, it is necessary for a family court to follow the principle or jurisprudence of evidence at the time of recording evidence. It is the jurisprudence of the law of evidence that cross-examination is a litmus test of the truthfulness of the statement made by a witness on oath in examination-in-chief, as such the objects of cross-examination are:
a) to demolish or decline the evidentiary value of the witness by his adversary;
b) to extract the true facts in favour of the cross-examining lawyer's client from the mouth of the witness of the opponent party;
c) Impeaching the trustworthiness and integrity of witness to show he is unworthy of belief; and
d) to shake his credibility by injuring his character.
9. It is now clear that jurisprudence of law allows that the questions to be addressed in the course of cross-examination as to test the veracity of witness and to discover who he is and what is his position in life. The principles laid down for examination-in-chief and cross-examination are altogether different. Since impeachment of a witness is required; therefore, sufficient liberty has been provided to a party conducting cross-examination like asking of leading question and confronting the previous statements of the witness whether the same pertains to some other proceeding or event, no doubt subject to relevancy with the issue. It is worth noting that the word 'examination-in-chief' and 'cross-examination' are not distinctly mentioned in the Family Court Rules but the Family Courts used to follow the same, meaning thereby that though the provisions of Qanun-e-Shahadat are not applicable but the basic principle of evidence are to be considered by a Family Courts during recording of evidence, as such the same cannot be overlooked or avoided under the garb of non-applicability of Qanoon-e-Shahadat Order. Nevertheless, as it is a settled principle of cross-examination that a witness may be confronted with his or her previous statement. Email or other digital communication of a witness comes under the definition of previous statement, as such the witness may be suitably confronted during cross-examination with such digital document. After inception of electronic mail and in the era of social media, the mode of communication has been amazingly changed, and the courts should not be oblivion of the abundance of flow of communication and information through these mediums. If it is established that any information communicated by a person from his account through email, Facebook, WhatsApp, twitter etc., the same may conveniently be referred during cross-examination. It is my considered view that even the courts can use electronic mail and WhatsApp for communication to a party in respect of service etc., as these are the medium from which the delivery of message and its perusal by the party can easily be established. Thus any email written by a witness or addressed to him and received in his inbox is his document and the same can be used to confront him by just referring it or producing it if attention of witness is required to draw toward certain portion of the document. Even any other sorts of digital documents in the shape of messages, photographs or movie clips can be referred and used during cross-examination of a witness, provided it is established that the same had been shared by him on social media from his personal account.
10. As far as, the annexing of documents with the pleadings is concerned that is a legal requirement but its purpose is altogether different. Such documents may be used during cross examination but the intention of the legislature to annex them or refer in a list is entirely different. In Section 7(3)(i), the clause 'a plaintiff sues or relies upon a document' indicates that only those documents are required to be produced by the plaintiff on which his claim rests, so that other side may comprehend his claim properly and tailor his defence. Similarly, the defendant in a family suit has to disclose all the documents, relied by him but it does not mean that the cross-examination of a witness is restricted to those documents only. As per settled principle of evidence, if a witness speaks in a different tone during examination in chief or cross-examination, his adversary has a full right to confront him either from his previous statement or his own document. I am of the view that it is least necessary to file an application for additional evidence regarding some documents intending to produce and confront a witness during cross-examination, if those documents were originated or initiated by him. The trial Court has discarded the production of e-mail considering the same as secondary evidence by holding that it is just a photocopy or printout. I am of the view that during cross-examination, if e-mail is referred as a previous statement of the witness, its production is not necessary. However, if the lawyer conducting cross-examination is having an intention to draw attention of the witness towards the content or some portion of the e-mail then its production is necessary during cross-examination of the witness as exhibit and marking of the portion of email so confronted. It is rational that the learned trial judge was skeptical regarding admissibility of email as evidence, if he has not faced such situation before. In fact, email is a form of documentary evidence and the same can be admitted as evidence in court in the same way as other forms of documentary evidence. However, the reliability of such email will always be a question and the same will be subject to scrutiny. An email can be produced as a document in shape of hard-copy i.e. printout, but one may not consider an email or other form of electronic text message as a 'smoking gun' in favour of his case. This can be a particular issue and measures should be taken to protect the integrity and authenticity of email by digital signature (if available) and encryption etc. and insuring that the same should be available in his inbox or transferred to some other mailbox in his email account so that its genuineness can be established in case of denial. The major evidentiary issue for a trial judge arises in respect of a private digital communication to reach at a conclusion that the texts of electronic document were genuinely written by the other party or not. Besides getting some technical and expert assistance, a judge can overcome this problem of authentication of an e-mail or text message through different ways, which are;
i) the adverse party admits that the texts were written by him.
ii) a witness may come in witness box and say that he saw the message created.
iii) characteristic of the message itself speaks that it was created by the author for whom it is claimed as author of the same.
iv) circumstances of the case proof that it was created as claimed.
v) a 'reply authentication' specially for e-mail, i.e. an electronic reply showing both parties e-mail addresses and text messages clearly indicating that the same was sent in response to the text message that was initially sent.
11. Nevertheless, reliability of email or other electronically generated documents may be subject to attack but a party cannot be restrained to present it in the Court as a documentary evidence. As far as confrontation to a witness during cross-examination is concerned, in view of the above discussion, the same is also allowed if emails or other digital documents are generated or originated by the witness, who is facing cross-examination or on his behalf. The ultimate outcome of the above discussion is that the petitioner may confront the respondent with her previous statement either oral or in shape of document including digital document like email or any other form of electronically generated or created document communicated through the medium of internet. With these observations, the instant petition is allowed and the impugned orders are set aside. The petitioner may confront the respondent in the witness box during cross-examination with all the digitally created and communicated documents by her through e-mail or social media subject to relevancy of the same. The learned Family Court may form its opinion regarding the admissibility of the same on the parameters mentioned above. Petition allowed.
ZC/T-18/Sindh Petition allowed.

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تنسیخ نکاح کی ڈگری سے نکاح ختم نہیں ہںوتا، اس کے علاوہ اگر UC سے سرٹیفکیٹ بھی جاری ہںو جائے پھر بھی دونوں کے درمیان کسی بھی وقت راضی نامہ ہںو سکتا ہںے، مگر دونوں کو دوبارہ نکاح کرنا پڑے گا کیوں کے تنسیخ ڈگری کی صورت میں حلالہ کی ضرورت نہیں ہںوتی، حلالہ صرف شوہر کی طرف سے دی گئی طلاق کی صورت میں ہںوتا ہںے...!!

  PLD 2013 Lah 88,

تنسیخ نکاح کی ڈگری سے نکاح ختم نہیں ہںوتا، اس کے علاوہ اگر UC سے سرٹیفکیٹ بھی جاری ہںو جائے پھر بھی دونوں کے درمیان کسی بھی وقت راضی نامہ ہںو سکتا ہںے، مگر دونوں کو دوبارہ نکاح کرنا پڑے گا کیوں کے تنسیخ ڈگری کی صورت میں حلالہ کی ضرورت نہیں ہںوتی، حلالہ صرف شوہر کی طرف سے دی گئی طلاق کی صورت میں ہںوتا ہںے...!!

P L D 2013 Peshawar 88
Before Rooh-ul-Amin Khan and Malik Manzoor Hussain, JJ
Mst. SAEEDA JAVED---Petitioner
Versus
Writ Petition No.1962 of 2010, decided on 27th March, 2013.
JAVED IQBAL and 2 others---Respondents

----S. 5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Suit for dissolution

(a) West Pakistan Family Courts Act (XXXV of 1964)---

Dissolution of Muslim Marriages Act, 1939 recognized such ground for dissolution of marriage of marriage by wife on ground of infertility of husband---Maintainability---Neither Islam nor act of nature---Marriage in case of infertility of husband could be dissolved either by him by as fertility or infertility or other incapacitation for being beyond control of human being and an giving Talaq to wife or by her through "Khula"---Principles.

Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage on

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.10(4)---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---

marriage on an unclaimed ground of "Khula"---Validity---Wife, if either failed to prove claimed ground of infertility of husband---Suit dismissed by Family Court decreed by Appellate Court on ground of "Khula"---Husband's plea was that Appellate Court had no jurisdiction to dissolve dissolution of marriage on ground of "Khula"---Wife in case of dissolution of marriage on ground also recognized by Dissolution of Muslim Marriages Act, 1939 OR she was not desirous to live with husband for any reasons not recognized by the Act, would still be entitled to

ground of "Khula" would have to either remit dower amount, if not received by her or pay back spouses could not be forced to live a life devoid of harmony and happiness---Court in such case same to husband, if so received by her---Record showed that wife in the present case, was not ready to live with husband despite having failed to prove any cruelty on his part---Muslim had no alternative but to dissolve marriage on ground of "Khula" even being an unclaimed ground---Principles---High Court dismissed constitutional petition in circumstances.

Holly Quran Sura Baqara Verse 229 ref

Arshad Jamal Qureshi for Petitioner.

Niaz Wali Khan for Respondents.

JUDGMENT

Date of hearing: 27th March, 2013.

ROOH-UL-AMIN KHAN, J.---Through this single judgment we propose to dispose of

the instant writ petition and connected Review Petition No.18 of 2011 with C.M. No.12 of 2011

2010 passed by learned Additional District Judge-VII, Peshawar, whereby appeal of the

in Writ Petition No.2201 of 2010. Petitioner has assailed judgment and decree dated 20-3-

extent of dowry articles as prayed for as per list, however, the dissolution of marriage on the

respondent was accepted while the appeal filed by petitioner-plaintiff was also allowed but to the

accordingly. Petitioner also seeks review of judgment and order dated 15-2-2010 passed by this

ground of cruelty was converted into khula and the claim of house and gold ornaments stands

abandoned/infructuous and modified the judgment and decree passed by the Judge Family Court

maintenance allowance @ Rs.2000 per month from May 2007 and for future, cash amount of

Court in Writ Petition No. 2201 of 2010.

2. Brief facts of the case are that the petitioner herein filed a suit for recovery of

Rs.20,000 as dower, 15 tolas gold ornaments or its market value, house bearing No-3036

in lieu of the dower and maintenance etc. mentioned above. Just after the marriage the attitude of

measuring four marla, boundaries mentioned in plaint, and dowry articles as per list annexed

with the plaint. According to the plaint the marriage of the parties was solemnized on 14-2-1998,

the defendant became inhuman and cruel, who oftenly used to beat her, but she endued this

maintenance allowance and he has also not tried to take her back or to meet out the demand of

cruelty for the sake of better future and matrimonial ties. She also claimed that the defendant is

barren, infertile and not capable to born children. The defendant has ousted her in her three wears

and since then she is residing with her parents. The defendant has not paid her dower and

hearing the parties the learned trial court decreed the suit in favour of the petitioner/plaintiff to

the plaintiff. On summon the defendant contested the suit through filing written statement and

strongly rebutted the allegation of cruelty and non-payment of dower. From divergent pleadings

including relief and one Additional Issue. Pro and contra evidence were recorded and after

of the parties the learned Judge Family Court reduced the controversy into fifteen issues

before the District Judge, which were marked to Additional District Judge-VII, Peshawar, who

the extent of dissolution of marriage, recovery of half dower, cash amount of Rs.20,000 and gold

weighing 7 tolas. Some of the dowry articles and maintenance allowance, as prayed for, was also

3. Both the parties, feeling aggrieved of the said judgment and decree filed separate appeals

decreed in favour of the plaintiff-petitioner.

4. Dissatisfied with the judgment of Appellate Court, the petitioner approached this Court through the instant Constitutional Petition, as well as Writ Petition No.2201 of 2010, which were

vide judgment and decree dated 20-3-2010 accepted the appeal filed by respondent, set aside the

judgment and decree dated 14-12-2009 passed by the Judge Family Court. The marriage was

dissolved on the basis of Khula instead of cruelty and the claim of house and gold ornaments

stands abandoned/ infructuous while the appeal filed by petitioner-plaintiff was also allowed to

the extent of dowry articles as prayed for as per list.

6. Arguments of learned counsel for the parties heard and record of the case gone through.

decided by this Court vide judgment dated 15-12-2010.

5. The petitioner, aggrieved from the judgment dated 15-12-2010, passed by this Court in

Writ Petition No.2201 of 2010, filed Review Petition No.18 of 2011, while the respondent,

dissatisfied from the aforesaid judgment of this court passed in instant writ petition, approached

the august Supreme Court of Pakistan through Constitutional Petition No.110-P of 2011. The

judgment of this court dated 15-12-2010 and remitted the case back to this court for decision

august Supreme Court after granting leave accepted the Appeal No.30-P of 2011, set aside the

afresh on merit in accordance with law.

conclusion that the plaintiff has failed to prove any physical torture or cruelty yet the marriage

7. Record divulged that plaintiff-petitioner filed suit for dissolution of her marriage on the

ground of cruelty and infertility of respondent-defendant. To this effect a specific issue

1-A. Whether the plaintiff is entitled for dissolution of marriage on the basis of infertility

reproduced below was framed by the trial court:--

"Additional Issue:

was dissolved and the wife was held entitled for recovery of dower, and maintenance for the

and cruelty, if so its effect?"

8. After adducing pro and contra evidence by the parties, the learned trial court arrived at a

fact about incapability of defendant to create children. She has also admitted that except the

reason that the defendant had concealed his infertility from the plaintiff, which amount to

cruelty. The Additional District Judge set at naught the finding of the trial court and held hat the

conclusion of the trial court is based on misreading of evidence of the parties and misappreciation of law on the subject, thus the marriage between the parties was dissolved on the

basis of Khula'.

9. From perusal of record it transpired that the plaintiff herself has admitted before the

Hazrat Ibraheem Aleh Salam and his wife Sara. The two main account of this story is as

court, while recording her statement, that at the time of her marriage she was in knowledge of the

medical receipt and prescription of 1999 she has not brought on record any medical evidence to

10. Infertility is not a recognized ground for dissolution of marriage under the Dissolution of

prove that the defendant is still suffering from the said disease.

or infertility or any other incapacitation is beyond the control of human being and an act of

Muslim Marriages, Act 1939, thus, it could not be based for dissolution of marriage. The fertility

code of life. There are two stories of infertility in Holly Qur'an out of which the first is that of

nature. In this regard we would sought guidance from the Holly Qur'an, which is a complete

follows:--

"And his wife was standing (there) and she laughed: But we gave her glad tidings of

Isaac and after him, of Jacob. She said "Alas for me; Shall I bear a child, seeing I am an old

woman, and my husband here, is an old man? That indeed would be a wonderful thing" They

people of the house! For He is indeed worthy of all praise full of Glory!" 11:71:73.

said; "Dost thou wonder at Allah's decree? The grace of Allah and His blessing on you. O ye

And they (angels) gave him (Ibrahim) glad tidings of a son endowed with knowledge.

They said "Even so has thy Lord spoken and He is full of wisdom and knowledge" 51-28-30".

But his wife came forward clamoring she smote her forehead and said: "A barren old woman!"

The detail concerning the life of Sara and Ibrahim Aleh Salam received from Ahadith reveals

they have no children. One must also accept, what Allah has planned for mankind. It is also

that the Sara was old about ninety years and Ibrahim Aleh Salam was 100 years old, and God

blessed them with a child. Here one can take a lesson that the life of spouses do not end, because

bond of marriage, love, faith and tenderness kept the couple together even during infertility.

important to take notice of the example set by Hazrat Ibrahim Aleh Salam and his barren wife

Sara. Both were never harsh to each other in words or deeds, nor they abandoned each other. The

Second story relates to Hazrat Zakariya Aleh Salam and his wife Ishba. Allah says in Quran

emulation in good works; they used to call on Us with love and reverence, and humble

Majeed:--

"And (remember) Zakariya, when he cried to his Lord: "O my Lord! Leave me not

without offspring, though thou art the best of inheritors." So We listened to him: and We granted

him Yahya: We cared his wife's (Barrenness) for him. These (three) were ever quick in

all of the Ummah must learn, as Allah says "He leaves barren whom He wills 42:50:"

themselves before Us.21:89:90.

From the above quoted two cases, it is clear than crystal that Ibrahim Aleh Salam did not

shunned, shammed, divorced or look down his wife for the reason of infertility. It is a lesson that

of the couples, having no children and issueless would have been living separately. Even the

It is a decree from Allah and it is, therefore, the legislature while drafting and promulgating the

Dissolution of Muslim Marriages Act, 1939, very wisely not recognized the infertility as a valid

divorce (Talaq Salasa) or from the wife side through "Khula".

ground for dissolution of marriage. If it would have been introduced in the statute then majority

religion of "Islam" has never approved the dissolution of marriage on such a ground. However,

even then if the wife or the husband desirous of children and any one of them is infertile and

incapable to born, they can dissolve the marriage amicably i.e. from the husband side through

11. Learned counsel for the petitioner also argued that the plaintiff has never claimed

are flimsy and not convincing. The Muslim Family Court Act, 1964 provide a mechanism for

dissolution of her marriage on the basis of "Khula", therefore, the Appellate Court was not

vested with power to dissolve the marriage on the unclaimed ground i.e. "Khula". He went on to

say that the judgment of the Appellate Court against law and liable to be set aside.

trial of the matrimonial and family disputes between the spouses. Section 10(4) of the Act, ibid,

12. We are not agreed with the above arguments of learned counsel for petitioner as the same

decree for dissolution of marriage forthwith and also restore to husband the "Haq Meher"

provides that in pre-trial proceedings if no compromise or reconciliation is possible between the parties, the court shall proceed and shall decide the matter after recording pro and contra

evidence. It further provides that notwithstanding any decision or judgment of any court or

received by the wife in consideration of marriage. By inserting the above quoted provisions in

Tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass

dissolution of marriage along with other benefit. But if she fails to prove then the mere fact that

the Act, ibid, the legislature has recognized the dissolution of marriage through "Khula". The

legislature while introducing the amendment in the Act ibid, have derived wisdom from the verse

No.229 "Sura Baqara of HOLLY QURAN and instances of "Khula:, whereby marriage of SabitIbne-Qais was dissolved by the Holly Prophet Hazrat Muhammad (S.A.W.) on a complaint made

by Jamila (wife of Sabit-Ibne-Qais) for relieving her from the Nikah of Sabit-Ibne-Qais.

13. It is by now well-settled law that if the dissolution of marriage is claimed by the wife on

14. In the instant case both the courts below have arrived at a unanimous conclusion that the

any ground recognized under the Muslim Marriages Act, 1939, then it is her duty to prove the

allegation. If she succeeded to prove the allegation then the court shall grant her decree for

the wife could not establish her allegation qua grounds taken for dissolution of marriage would

not disentitle her for termination of marriage contract on the ground of "Khula". In such

eventuality the court is under legal obligation to grant decree for dissolution of marriage, but on

the basis of Khula and for the same she shall remit the dower amount if not received or pay it

back to the husband, if so received. "Islam" does not force on the spouses a life devoid of

SAK/164/P Petition dismissed.

harmony and happiness and if the wife is not desirous to live with her husband for any reason,

even not recognized by the Statute, it permit separation, on the basis of "Khula".

plaintiff has failed to prove any cruelty on the part of the defendant-husband and despite the fact

the wife is not ready to live with the husband. In these circumstances there was no alternate with

not claimed her dissolution on the ground of "Khula".

the court but to dissolve the marriage on the basis of Khula' notwithstanding the fact that she has

15. In view of the above discussion, we hold that the judgment of the learned appellate court

of 2010 are hereby dismissed.

is based on proper appreciation of evidence and does not suffer from any illegality or

irregularity. The instant writ petition and review Petition No.18 of 2011 in Writ Petition No.2201

Read More

Case Law (No valid marriage (not recognized under the Muslim Law), even if registered, having taken place, provisions of Art.35, Constitution would not be applicable.)

کسی لڑکی کو اغواء کرکے زبردستی نکاح پڑھوایا گیا ہو تو ایسے نکاح کی کوئی قانونی حیثیت نہیں ہے

PLD 2006 SC 489

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 23, 17, 5 & Sched.---Muslim Family Laws Ordinance (VIII of 1961), Ss.5 & 3---West Pakistan Rules under Muslim Family Laws Ordinance, 1961, Rr.7, 8, 9, 10 & 11---Qanun-e-Shahadat (10 of 1984), Art. 79---Civil Procedure Code (V of 1908), Ss.10 & 11---Oaths Act (X of 1873), Ss.8, 9, 10 & 11---Registration of marriage---Procedure elaborated---Jactitation of marriage---Family Court had exclusive jurisdiction to adjudicate upon the case of jactitation of marriage brought before it even though marriage was registered under the Muslim Family Laws Ordinance, 1961, which Ordinance essentially referred to and dealt with valid marriages solemnized under the Islamic Sharia and not otherwise---Principles.

Malla v. Mst. Jawai and others 1981 CLC 1097; Younus v. Mst. Naseeran and Abdul Ghafoor 1992 CLC 42 and Mst. Nighat Ijaz v. Muhammad Jameel PLD 1994 Kar. 46 ref.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 33, 5 & Sched.--Muslim Family Laws Ordinance (VIII of 1961), Ss.5 & 3---Constitution of Pakistan (1973), Arts.199 & 185(3)---Jactitation of marriage---Valid and lawful marriage---Burden of proof---Principles---Lady, in her pleadings categorically contended that she was abducted by the man with the help of his companions and thereafter, without her free-will and accord entered into a marriage contract with her and eventually on the intervention of the respectables of the area she was restored to her parents and during this period the man started claiming her as his legally wedded wife---Claim of the lady, being in negative form and nature, obviously she could not have been burdened to substantiate the same by producing further evidence that she did not, in the exercise of her own free will and accord, entered into a contract of marriage---Record also showed that the alleged Nikah was not performed even in the district where the lady was ordinarily residing rather, hundreds of miles away from her place of ordinary abode---Stated Nikah was registered and performed in a mosque, where no relative, friend or any other acquaintance of the bride was present, therefore, in such a situation, the evidence of lady which withstood the test of cross-examination was sufficient to convince that she did not enter into contract of marriage out of her own free-will in exercise of her right of option---Lady, therefore, succeeded in discharging the onus of the issue and thereupon the burden shifted to the man to rebut the same through evidence that Nikah between the parties was validly and lawfully performed by the lady in exercise of her free-will being the persona majora, who consented for the same and thereby entered into the contract of marriage by performance of Nikah---Man, in peculiar facts and circumstances of the case, was obliged to have proved the factum of performance of a valid Nikah and such onus on him could not have been successfully discharged unless the witnesses of Nikah and other witnesses in whose presence lady allegedly appointed the cited witness in the Nikahnama to act her Wakilfor Nikah, was produced, which in the present case was completely wanting---Material evidence in the case having been misread, misconstrued and misapplied by the lower forums i.e. Family Court and the Appellate Court, by upholding the marriage as valid one, interference of High Court in exercise of its constitutional jurisdiction, was very much called for to rectify the manifest error committed by them in the exercise of their jurisdiction.

(c) Constitution of Pakistan (1973)---

----Art. 35---Protection of family---No valid marriage (not recognized under the Muslim Law), even if registered, having taken place, provisions of Art.35, Constitution would not be applicable.

Hamid Khan, Senior Advocate Supreme Court and Mehmoodul Islam, Advocate Supreme Court for Petitioner.

Ch. Muhammad Ashfaque, Advocate Supreme Court for Respondent No.1.

Date of hearing: 15th February, 2006. 

MATLOOB HUSSAIN VS Mst. SHAHIDA

P L D 2006 Supreme Court 489

Present: M. Javed Buttar and Raja Fayyaz Ahmed, JJ

MATLOOB HUSSAIN---Petitioner

Versus

Mst. SHAHIDA and 2 others---Respondents

Civil Petition No.2368-L of 2004, decided on 15/02/2006.

(On appeal from the judgment dated 17-6-2004 of the Lahore High Court, Multan Bench, Multan, passed in W.P. No.1444 of 2004).

JUDGMENT

RAJA FAYYAZ AHMED, J.---This Civil Petition for leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been directed against the judgment dated 17-6-2004 passed by the learned Single Judge in Chambers of the Lahore High Court, Multan Bench, whereby the Writ Petition No.1444/2004 filed by respondent No.1 against the consolidated judgment of the learned Additional District Judge, Jampur, District Rajanpur passed in Family Appeals Nos.71 & 79/2003, was allowed and the suit for jactitation of marriage filed by respondent No.1 was decreed in her favour by reversing the appellate decree, whereas; the suit of the petitioner for restitution of conjugal rights was dismissed.

2. The brief facts of the case are that respondent No.1 on 11-6-2001 filed a suit for jactitation of marriage against the petitioner on the averments that she was married to one Mashooq, who died on 7-2-2001 whereafter, she started residing with her parents in their house, during this period the petitioner went on claiming that respondent No.1 was his legally wedded wife although; she never contracted marriage with the petitioner out of her own free-will and accord rather; was abducted by the petitioner with the help of his companions and eventually on the intervention of the respectable persons of the area her custody was restored to her parents. In the above said situation when the parents of respondent No.1 contacted the petitioner about his alleged claim of marriage, the petitioner declared that Nikah was performed between the parties on 8-5-2001. Consequently, she filed the suit contending therein that no valid marriage existed between the parties and the document relating to the alleged Nikah was a fake and forged document, fraudulently prepared and thus of no legal effect, accordingly prayed in the suit that the decree for jactitation of marriage be passed in her favour.

3. The petitioner resisted the suit of respondent No.1 on the ground that she was married to him' 'n the exercise of her own free-will being a persona majora and Nikah was accordingly performed between the parties, as well as; duly registered with the Nikah Registrar. It was further contended in the written statement that respondent No.1 had earlier filed Writ Petition No.4143/HR/2001 in the Lahore High Court, Multan Bench, in which she admitted to be the wedded wife of the petitioner. The petitioner, subsequently on 8-12-2001 also filed suit for restitution of conjugal rights in the Family Court, Jampur, which was resisted by respondent No.1 by means of her written statement. Both the suits were consolidated and out of pleadings of the parties following issues were framed:

"(1) Whether the Nikah between the parties as alleged by the defendant ever contracted? OPD.

(2) Whether alleged Nikah between the parties was a result of fraud? OPP.

(3) Whether plaintiff was entitled to the decree for jactitation of marriage keeping in view the averments of the plaint? OPP.

(4) Whether in view of preliminary objections Nos.1, 2 and 5 of the written statement the suit of the plaintiff was not maintainable? OPD.

(5) Whether the plaintiff had got no cause of action to file the present suit? OPD.

(6) Relief."

4. Both the parties produced their respective evidence in support of their case. The learned Family Court, hereinafter 'referred to as `the learned trial Court', vide consolidated judgment and decree dated 29-3-2003 dismissed both the suits. Both the parties, i.e. the petitioner and respondent No.1 challenged the decree of the learned trial Court by preferring appeals in the Court of learned Additional District Judge, Jampur, District Rajan Pur, hereinafter referred to as `the learned appellate Court', which dismissed the appeal of respondent No.1, by decreeing the suit for restitution of conjugal rights in favour. of the petitioner by accepting his appeal and maintained the decree of the learned trial Court in the suit filed by respondent No.1 for jactitation of marriage.

5. The learned Senior Advocate Supreme Court for the petitioner and Ch. Muhammad Ishfaque, Advocate Supreme Court for respondent No.1/caveator have been heard. Mr. Hamid Khan, Senior Advocate Supreme Court for the petitioner contended that respondent No.1 out of her own free-will in the exercise of her right being sui juris contracted marriage with the petitioner and Nikah between the parties was performed by the Nikah Khawan in presence of the witnesses, who also appeared in the witness box and affirmed the performance of Nikah between the parties against the specified dower amount incorporated in the Nikahnama duly registered as provided by the law. He explained that prior to marriage there was a clear understanding between the parties, which eventually culminated into the contract of Nikah, whereafter, both the spouses were living happily but the parents of respondent No.1 were not happy over this marriage, therefore; in order to settle the things, she was sent to the house of her parents, where she under the influence and inducement of her parents resiled from the marriage and filed a baseless suit for jactitation of marriage. According to the learned counsel, a well reasoned judgment was passed by the learned appellate Court, which reappraised the entire evidence in its true perspective and no material part of the evidence adduced by the parties was misread., non-read or misconstrued to which no exception can be taken and merely because another view/conclusion could have possibly been drawn from the evidence would not furnish any valid and legal basis for the interference in writ jurisdiction. According to the learned counsel, the appellate forum available under the Family Courts Act reasonably had exercised the jurisdiction and has appraised the entire evidence, which therefore, left no room for the learned Judge in the High Court to have taken up the matter for the re-appraisal of evidence. The learned Senior Advocate Supreme Court maintained that the learned Judge in the High Court exceeded the jurisdiction, while exercising extraordinary discretionary powers under Article-199 bf the Constitution of Islamic Republic of Pakistan, 1973, not warranted in the light of the evidence available on record and according to the learned counsel for the petitioner, not the quantum but the quality of evidence mattered with regard to the performance of Nikah and the execution of Nikahnama was duly proved by the Nikah khawan, inasmuch as; within the purview of Article-35 of the Constitution, as per public policy a marriage between the spouses is to be saved instead of breaking the marriage tie/contract registered with Nikah Registrar. According to the learned counsel, presumption of truthfulness of Nikah registered under the Family Laws Ordinance with the Nikah Registrar is immune from being challenged in the Family Court within the meaning of section 23 of the Family Act, 1964. He further argued that the standard of proof of the execution of the document/Nikahnama was wrongly applied by the learned Judge in the High Court in terms of Article-79 of the Qanun-e-Shandat, 1984, although; the provisions of Qanun-e-Shandat Order have been made inapplicable to the proceedings before a Family Court by virtue of? section-17(1) of the Family Courts Act, 1964. Further, the learned counsel argued that even from the circumstances of the case it transpired abundantly that respondent No.1 actually wanted to marry the petitioner, who voluntarily contracted marriage with the petitioner out of her own free-will but subsequently on account of intervention and undue influence of her parents resiled from the marriage contract though a valid marriage existed between the parties.

6. On the other hand, the learned Advocate Supreme Court for respondent No.1 contended that since the petitioner claimed to have entered into a valid Nikah with respondent No.1, therefore, onus heavily was upon him to prove that a valid Nikah existed between the parties, who even failed to produce the witnesses of the Nikah and the witnesses in whose presence allegedly respondent No.1 appointed her wakil for the purpose of Nikah,, inasmuch as; Nikah Khawan on his own incorporated the name of the wakil, who too was not produced in the witness box. Also according to the learned counsel, the performance of a valid Nikah between the parties was not proved through the purported Nikah Khawan and since material pieces of evidence available on record regarding Nikah were misread and misconstrued, as well as; the. evidence on the point was not appreciated in its true perspective, therefore, the learned Judge in the High Court appropriately in the exercise of writ jurisdiction interfered into the findings of facts to which no exception can be taken. The learned counsel in the light of above referred Article of the Constitution and section 23 of the Family Courts Act, contended that these provisions relate to a valid and legal Nikah duly registered with the Nikah Registrar and are not meant to provide a cover to a false and fake Nikah. The learned counsel for respondent No.1 has relied upon reported cases i.e. (1) Malta v. Mst. Jawai etc (1981 CLC 1097), (2) Younus v. Mst. Nazeeran and Abdul Ghafoor 1992 CLC 42 and (3) Mst. Nighat Ijaz v. Muhammad Jameel (PLD 1994 Karachi 46).

7. The contentions advanced on behalf of the parties by their learned counsel' have been considered in the light of the impugned judgment and the evidence available on record gone through with the assistance of the learned counsel for the parties including the cited case law.

Before dilating upon the merits of the case, it would be appropriate to first consider the legal aspects of the case in view of the contentions of the learned Senior Advocate Supreme Court for the petitioner. It has been contended that since the Nikah was performed A between the parties and was duly registered under the Family Laws Ordinance, 1961, hereinafter referred to as `the Ordinance', therefore, the same is immune from being challenged before the Family Court in view of section-23 of the Family Courts Act, 1964, hereinafter referred to as `the Act'. It may be seen that by virtue of section- or the Ordinance every marriage solemnized under Muslim Family Laws shall be registered in accordance with the provisions of the `Ordinance', by the Nikah Registrar of the union council in which marriage has been solemnized as per provisions of subsection (1) of section-5 of the `Ordinance', whereas; the forms of Nikahnama and the registers including the record pertaining to Nikahnama are required to be maintained by the Nikah Registrar and preserved by the Union Councils, in which marriages shall be registered and copies of Nikahnama shall be supplied to the parties on payment of prescribed fees by virtue of provisions of subsection (5) of the said section and; whereas, for the purpose of registration of marriages Rules-7 to 11 of the Muslim Family Rules, 1961, hereinafter referred to as `the Rules', have been enacted regarding grant of licence to a person to act as Nikah Registrar under section 5(1) of the Ordinance, his competence to the office for the grant of licence, maintenance of Nikah Register, the page marking, fixation of seal, payment of fees of the registration of Nikah by the bridegroom and the prescribed forms for Nikah etc.

Undisputedly, the Family Court under the Act, has the exclusive jurisdiction subject to the provisions of the Ordinance and the Conciliation Courts Ordinance, 1961 to entertain, here and adjudicate upon the matters specified in the schedule to the Act, which includes a suit for jactitation of marriage, whereas; by virtue of provisions of section 17 of the Act except as otherwise provided by or under the Family Courts Act, the provisions of the Evidence Act,1872, (substituted by Qanun-e-Shahadat, 1984) and the Code of Civil Procedure, 1908 except sections-10 and 11 have been made inapplicable to the proceedings before a Family Court. However, by virtue of subsection (2) of section 17 of the Act, sections 8 to 11 of the Oaths Act, 1873 have been made applicable to all the proceedings before a Family Court. Thus, it is manifest that the provisions of Qanun-e-Shahadat, 1984 and C.P.C. do not apply to the proceedings before the Family Court except sections-10 and 11 ibid. However, for regulating the procedure; a Family Court may follow for adjudicating upon a suit to which its jurisdiction exclusively extends, which may be most appropriate, inexpensive for expeditious disposal of cases, just and fair and not otherwise expressly provided by or under the Act and not inconsistent with the provisions of the Act, which may even include the principles of procedure laid down under C.P.C: to achieve the object of the special enactment focused for early and effective decision of cases by a Family Court. Section 23 of the Act, was therefore, enacted tier the expeditious disposal of cases coming before a Family Court in which the validity of any marriage registered in accordance with the provisions of the Muslim Family Laws Ordinance, 1961 cannot be questioned nor shall any evidence with regard thereto be admissible before such Court meaning thereby that the validity of any marriage registered in accordance with the provisions of the Ordinance, shall not be questionable before the Family Court nor shall any evidence in regard thereto be admissible before the said Court. The provisions of section 23 of the Act therefore, have to be read in conjunction with sections 3 and 5 of the Ordinance, which leaves no doubt in our mind that provisions of the Ordinance shall have the effect notwithstanding any law, custom or usage, and; the registration of Muslim Marriages shall take place in accordance with the provisions of the Ordinance and every marriage solemnized under `Muslim Laws' shall compulsorily be registered in accordance with the provisions of the `Ordinance'. The words used in section 3 `registration of Muslim Marriages' and `every marriage solemnized under the `Muslim Laws' essentially refers to a valid marriage under the Muslim Laws and not a void marriage or not solemnized in accord with the mandate of Sharia i.e. under `Muslim Laws' such as; disability under the `Muslim Laws' of a person to enter into a contract of marriage or incapacity of a Muslim to enter into a marriage with a person not otherwise disqualified to contract marriage or a marriage contract entered into by any party to the marriage as a result of coercion, undue influence or misrepresentation, except a marriage under the `Muslim Laws' by two persons not suffering from any incompetency or incapacity may enter into a contract of marriage prior to its registration under the Ordinance. The proceedings for registration of marriage simultaneously on performance of Nikah or immediately preceding its registration or prior to it must relate to a valid marriage contract between sui juris and to be capable and competent to enter into a contract of marriage; therefore, it may be safely said that intention of a law giver by enacting 'the Ordinance' was that a valid marriage solemnized under `Muslim Laws' to be essentially registered under the Ordinance, 1961 and not a void marriage, which is not recognized as a valid marriage under the `Muslim Laws' and; therefore, overriding effect has been given to the provisions of `the Ordinance' by virtue of section-3 of the Ordinance which provide that the provisions of the Ordinance, 1961 shall have the effect, notwithstanding any law, custom or usage and; the registration of the Muslim Marriages shall take place only in accordance with the provision of `the Ordinance'. Therefore, the provisions of section-23 of the Act referred to above shall not have the effect of ouster of the jurisdiction of a Family Court in a suit in which the validity of the marriage though registered under provisions of `Ordinance', has been questioned nor shall any evidence in regard thereto be inadmissible before the said Court for the simple reason that unless a valid marriage under the Muslim Laws was/has been solemnized and registered in accordance with the provisions of the Ordinance, the jurisdiction of the Family Court will not stand ousted, therefore; the special enactment on the subject was enacted and exclusive jurisdiction has been conferred upon the Family Courts to adjudicate upon the matters enumerated in the schedule to the Act, including `jactitation of marriage' else; the provisions of section-5 of the Act, read with Schedule relating to `jactitation of marriage' shall stand frustrated thus; we are.of the considered view that a Family Court has the exclusive A jurisdiction to adjudicate upon the case of `jactitation of marriage' brought before it even though registered under the Ordinance, which as above discussed, essentially refers to and deals with valid marriages solemnized under the Muslim Sharia and not otherwise. The contention of the learned counsel for the petitioner in such behalf noted above are devoid of any substance.

8. Adverting to the other contentions of the learned counsel for the petitioner, one. cannot lose sight of to the pleadings of the parties. It was categorically contended by respondent No.1 in her pleadings that she was abducted by the petitioner with the help of his companions and thereafter without her free-will and accord entered into a marriage contract with her and eventually on the intervention of the respectable persons of the area she was restored to her parents and during this period the petitioner started claiming respondent No.1, as his legally wedded wife, who declared that Nikah was performed between the parties on 8-5-2001. As the claim of respondent No.1 was in negative form and nature obviously could not have been burdened to substantiate the same by producing further evidence that she did not in the exercise of her own free-will and accord enter into a contract of marriage and secondly; it is apparent from the available record that the alleged Nikah was not performed even in the district in which she was ordinarily residing rather; hundreds of miles away from her place of ordinary abode the stated Nikah was registered and peserformed in a mosque, where no relative, friend or any other acquaintance of the bride was present, therefore, in such a situation, the evidence of respondent which withstood the test of cross-examination was sufficient to believe that she did not enter into contract of marriage out of her own free-will in exercise of her right of option accordingly, she succeeded in discharging the onus of the issue and thereupon; the burden shifted to the petitioner to rebut the same through evidence that Niakh between the parties was validly and lawfully performed by respondent No.1 in exercise of her free-will being the persona majora, who consented for the same and thereby entered into the contract of marriage by performance of Nikah with the petitioner and; to prove the factum besides his own statement, the petitioner produced Ghulam Murtaza s/o Khuda Bukhsh, Pesh Imam and Nikah Khawan of Mouza Jampur Kanora, who also produced attested copy of the registered Nikahnama Exh-D/1. According to this witness consequent upon the `offer and acceptance' between the parties, Nikah was performed in the mosque of Mouza Jampur Kanora in presence of witnesses Ghulam Sarwar and Muhammad Bukhsh and he got affixed thumb impression of Shahida Mai on the Nikahnama on which the bridegroom also inscribed his signature and at the time of Nikah prompt dower amount of Rs.5,000 for the bride was fixed besides five tolas gold made ornaments, incorporated in the Nikahnama, as provided to the bride. DW-1 admitted that name of the wakil for the bride was written in Exh-D/1 by him on his own in the assembly and similarly on his own he wrote the names of the witnesses in column No.8 of Nikahnama and none of them was present before him nor does he personally know any of these witnesses. He also admitted that in column No.5 of the Nikahnama he has shown the bride as widow. He further admitted that 2/4 other persons were also present in the mosque and he did not personally know the bride. He explained that he had obtained the photograph of the bride, which was attached to a separate form but readily the same is not in his possession. Statement of respondent No.1 was also recorded by the learned Single Judge of the Lahore High Court, Multan Bench, Multan in Writ Petition No.5180/2001 on 16-7-2001 tendered in evidence by respondent No.1 as Exh-P-3 in which she stated that she was never married to petitioner Matloob Hussain and even did not know him, who had abducted her and her thumb impression was taken on blank papers, as well as; no Nikah was ever performed and in respect of the Nikahnama filed by the petitioner, the suit for jactitation of marriage instituted by her is pending. She stated that she wanted to go back with her father and is not ready to accompany the petitioner, who should have been sent behind the bars for abducting her and for being cruel to her, is filing repeated petitions of the like nature. It appears from the record that sometime after the restoration of her custody by the petitioner to her parents, she was residing with them and during this period of time, the petitioner filed the above mentioned petition in the Lahore High Court, in which her statement referred to above was recorded.

9. In the peculiar facts and circumstances of this case, it was obligatory on the part of the petitioner, in view of his pleadings to have proved the factum of performance of a valid Nikah with respondent No.1 and obviously as above discussed, the onus on the part of the petitioner could not have been successfully discharged unless the witnesses of Nikah and the other witnesses in whose presence, respondent No.1 appointed the cited witness in the Nikahnama to act as her wakil for Nikah was produced, which in the instant case is completely wanting. Ghulam Murtaza DW did not personally know respondent No.1 and her alleged Nikah was performed inside the mosque, in which according to the DW, 2/4 other persons were also present but none of them was produced before the Family Court by the petitioner nor any explanation has been furnished by him as to the factor, which prompted him to go through the Nikah in the mosque in absence of even any of his own relatives or friends and the affixation of thumb impression of respondent No.1 on the Nikahnama per se in the given facts and evidence in the case would not be sufficient to prove the factum of performance of a valid Nikah between the parties. These substantial and important factors apparent in the evidence available on record were not duly considered and dealt with in its true perspective by the learned Family Court and the Appellate Court, which rather; misconstrued and misapplied, the same though germane to the case and amounted to the jurisdictional errors committed by these forums, essentially to be exercised in accordance with the law. The contention of the petitioner's learned counsel is also devoid of any substance that the evidence on record was appraised in its true perspective by the learned appellate Court and no material part thereof was misconstrued and misread and that in exercise of extraordinary jurisdiction, the learned Single Judge in the High Court could not have interfered into the appellate Court's decree because another view could possibly be taken from the evidence on record. This is not so in the instant case, as above discussed, the material evidence was misread, misconstrued and misapplied by the forums i.e. Family Court and the learned Appellate Court, therefore, interference in the exercise of writ jurisdiction was very much called for to rectify the manifest errors committed by the learned Courts below in the exercise of jurisdiction.

10. As far as the provisions of Article-35 of the Constitution of Islamic Republic of Pakistan, 1973 are concerned, the same cannot be made applicable to the case in hand for the simple reason that no valid marriage (not recognized under the Muslim Law) even if be registered c has been given protection by the above said Article, which otherwise has no relevance to this case, in view of its ,peculiar facts and circumstances.

11. Moreover, there appears to be no reason to believe that the provisions of the Qanun-e-Shahadat, 1984 (Erstwhile, Evidence Act, 1872) were made applicable to the case by the learned Judge in the High Court.

12. In our considered view, the learned Single Judge in the High Court appropriately interfered into the decree passed by the learned appellate Court to which no exception in view of the reasons mentioned in the impugned judgment can be taken.

13. For what has been stated above, this petition being without any merit is dismissed and leave to appeal is refused.

M.B.A./M-69/S?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.

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