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.
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.
0 comments:
Post a Comment