Second MARRIAGE WITHOUT IDDAT

2016 CLC Lah 717

(a) Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Registration of FIR---Irregular marriage---Petitioner alleged that his daughter was abducted by respondents who also took away gold ornaments and cash amount with them from his house---Ex-officio Justice of Peace declined to interfere in the matter as daughter of the petitioner was a sui juris and had contracted second marriage after elapse of period of Iddat---Validity---Marriage entered into by a divorced lady before completion of Iddat period could be an irregular marriage and not void marriage---Marriage which was irregular could not be treated as void marriage---Union of husband and wife in irregular marriage could not be regarded as un-Islamic or against Sharia---Daughter of petitioner was divorced by her previous husband and if she had produced divorce deed, the same would be valid when the previous husband had not come forward to deny or dispute validity of 'Talaqnama'---High Court declined to interfere in the order passed by Ex-officio Justice of Peace---Petition was dismissed in circumstances.

Mst. Sughran v. Station House Officer and others 2004 YLR 1229; Fatima Bibi v. Station House Officer and others PLD 2005 Lah. 126 and Mst. Kundan Mai v. The State PLD 1988 FSC 89 ref.

Para No.2, Surah Al-Baqarah, Verse No.228 of Holy Quran; Mullah's Mohammadan Law; Shaukat Ali and others v. The State 2004 YLR 619 and Allah Dad v. Mukhtar and another 1992 SCMR 1273 rel.

(b) Islamic law---

----Marriage---Divorced lady---Iddat period---Non observance of---Effect---Marriage entered into by a divorced lady before completion of Iddat period could be an irregular marriage and not void marriage---Marriage which was irregular could not be treated as void marriage---Union of husband and wife in irregular marriage could not be regarded as un-Islamic or against Sharia.

Mst. Sughran. v. Station House Officer and others 2004 YLR 1229; Fatima Bibi v. Station House Officer, and others PLD 2005 Lah. 126 and Mst. Kundan Mai v. The State PLD 1988 FSC 89 ref.

Ch. Ghulam Farid Sanotra for Petitioner.

Ch. Iftikhar Iqbal Ahmad, A.A.G. for the State.

Malik Muhammad Azam Awan for Respondents.

Date of hearing: 11th September, 2015.

MUHAMMAD SHER VS ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, DISTRICT KHUSHAB
2016 C L C 717
[Lahore]
Before Hafiz Shahid Nadeem Kahloon, J
MUHAMMAD SHER----Petitioner
Versus
ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, DISTRICT KHUSHAB and 6 others----Respondents
Writ Petition No.19045 of 2011, heard on 11/09/2015.

JUDGMENT

HAFIZ SHAHID NADEEM KAHLOON, J.--- Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the vires of order dated 21.06.2011 passed by learned Ex-Officio Justice of Peace (Addl. Sessions Judge) Khushab, whereby the application made by the petitioner under Sections 22-A and 22-B, Cr.P.C. seeking direction for registration of a case against respondents Nos.3 to 6 was dismissed.

2.The brief facts as narrated in the petition under Sections 22-A and 22-B, Cr.P.C. for the registration of criminal case against respondents Nos.3 to 6 moved by petitioner before Ex-officio Justice of Peace, Khushab, are that on 01.05.2011 they abducted Mst. Farzana Bibi, daughter of the petitioner and also took away gold ornaments weighing 5-tolas and net cash of Rs.50,000/- with them from the house of the petitioner. It is note worthy that Mst. Farzana Bibi was earlier married with one Muhammad Sarwar, who divorced her on 06.02.2011. Whereupon she contracted second marriage with one Mujahid Iqbal (respondent No.3) without observing the period of Iddat on 02.05.2011, therefore said Mujahid Iqbal is committing zina with his daughter (Mst.Farzana Bibi), but the learned Ex-officio Justice of Peace after procuring the report from the police, dismissed the application of the petitioner vide impugned order dated 21.06.2011. Hence, the instant writ petition.

3.The learned counsel for the petitioner submits that according to the contents of petition filed before the learned Justice of Peace, clearly cognizable offence was made out as during the period of Iddat, no second marriage can be solemnized and as such Nikah would not be valid rather void and the result of illegal cohabitation. Further submits that it is settled law that when the information regarding the commission of cognizable offence is given to police officer, he is duty bound to register a case, but in this case, the police officer has failed to perform his statutory duty and learned Ex-officio Justice of Peace was erred in law by dismissing the petition without any lawful justification, therefore, the same is not sustainable in the eye of law and is liable to be set-aside. Learned counsel for the petitioner in his support referred case law "Mst. Sughran v. Station House Officer etc." (2004 YLR 1229), "Fatima Bibi. v. Station House Officer, etc." (PLD 2005 Lahore 126) and "Mst. Kundan Mai v. The State" (PLD 1988 Federal Shariat Court 89).

4.The learned Assistant Advocate General assisted by learned counsel for the respondents has opposed the contention of learned counsel for the petitioner by arguing that no one had abducted Mst. Farzana Bibi, who being sui juris contracted second marriage after elapsing the period of Iddat as her first husband namely Muhammad Sarwar divorced her on 06.02.2011 as is evident from the Talaq-nama which is annexed with this writ petition. Further argued that Mst. Farzana Bibi, the alleged abductee also got her statement recorded on oath, whereby she negated the contention of the petitioner and as such the lady who contracted the second marriage knows better whether she is in a position to contract marriage as per period of her menstruations, because three menstruations are essential to fulfill the requirements of Iddat. Therefore, learned Ex-officio Justice of Peace has rightly passed the well reasoned order, which does not suffer from any illegality and infirmity.

5.Arguments heard and record perused.

6.Perusal of record shows that allegedly on committing the offence, the petitioner moved an application to local police, but could not get the FIR registered. There-after he moved a petition under Sections 22-A and 22-B, Cr.P.C. before learned Ex-officio Justice of Peace, who after procuring the report passed the following order:-

"Mst. Farzana Bibi is a sui juris has contracted marriage with her free consent after obtaining a decree for dissolution of marriage. So far as contention of the petitioner is concerned, she contracted second marriage during the period of Iddat. In this regard, there is conflict of vexes and the lady who contracted the marriage knows better whether she is in a position to contract marriage keeping in view the period of her menstruation. In view of above, this application having no merit is hereby dismissed."

7.It has been observed by this Court that no one has abducted Mst. Farzana Bibi, daughter of the petitioner, who was divorced lady and being sui juris contracted second marriage with her free will and consent and against the wishes of her father as according to alleged abductee, her father was forcing her to contract second marriage with another person of his choice. As per alleged abductee, she was not in a Iddat period, when she contracted second marriage. On the other hand, according to the petitioner, Mst. Farzana Bibi without completing the period of Iddat, contracted second marriage, which is illegal and she is committing zina, but I am of the view that according to Injunction of Islam, Holy Quran and Sunnah, three menstruations are essential to complete the period of Iddat and the divorcee lady is best judge, who has knowledge or ascertain the same.

8.In Para No.2, Surah Al-Baqarah, Verses No.228 of Holy Quran, it has been stated by Almighty-Allah as under:-

"The divorced women shall wait concerning themselves for three menstrual periods and it is not lawful for them to hide what Allah has created in their wombs, if they believe in Allah and the Last Day. And their husbands have the better rights to take them back during that period provided they desire reconciliation. And women have rights similar to those (of their husbands) over them (as regards obedience and respect) in a just manner, but men have a degree (of responsibility) over them. Allah is All mighty, wise about all things."

9.It is settled Islamic law that the marriage entered into divorced lady before the completion of Iddat period would be irregular marriage and not void marriage as per law laid down in Mullah's Muhammadan Law. Marriage which is irregular cannot be treated as void marriage. The union of husband and wife in irregular marriage cannot be regarded against un-Islamic or Shariah. Alleged female accused having been divorced by previous husband if produced divorce-deed, would be valid when previous husband has not come forward to deny or dispute the validity of "Talaq-nama". In this regard reliance can be placed in case reported as "Shaukat Ali, etc. v. The State" (2004 YLR 619):

10.Even other-wise, Injunction of Islam with regard to the validity of marriage shall prevail for the propose of Ordinance, 1979 over the existing law. Reliance can be placed in this regard "Allah Dad v. Mukhtar and another." (1992 SCMR 1273). Wherein it has been held as under:--

"Remarriage of a woman requires a period of "Iddat" for 39-days. The period of "Iddat" laid down by the Holy Quran is not 90-days. It is rather three periods of menstruations which do not necessary extend to 90-days. According to Hanifi Jurists the minimum period of menstruation is 3-days and the minimum period of "Tuhr" (period of purity) is 15-days. In the light of these principles, the minimum period of "Iddat" may 39-days because this is the period in which it is possible for a woman to have three menstruations with two intervening period of purity."

It is, thus, clear that a marriage performed after 3-menstruations period from the divorce, can be a valid marriage according to Shariah.".

11.Moreover, the learned counsel for the petitioner could not point out any legal and factual infirmity in the impugned order passed by learned Ex-officio Justice of Peace and also could not refute what has been stated in the police report and parawise comments furnished by the police. In such circumstances, learned Ex-officio Justice of Peace has rightly passed impugned order after considering the real facts on every aspect of the case and thorough probe the matter. Citations referred above by the learned counsel for the petitioner are not applicable to the facts and circumstances of the present case.

Resultantly, the impugned order dated 21.06.2011 passed by learned Justice of Peace is in accordance with law and same is hereby up-held and instant writ petition being devoid of any merits is hereby dismissed.

MH/M-303/LPetition dismissed.

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HUSBAND CAN FILE CASE FOR RECEIVING THE GIFT ETC IN FAMILY COURT AND NOT IN CIVIL COURT, ON APPLYING COURT FEE.

2014 CLC 87

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

----S. 5, Sched. & S.7----Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), S.2(a)---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of bridal gifts, by husband after dissolution of marriage on the basis of Khula---Jurisdiction of Family Court---Scope---Respondent/husband after dissolution of marriage on the basis of khula filed suit seeking decree for recovery of gold ornaments/bridal gifts---Trial Court dismissed the suit for recovery being not maintainable before Family Court---Appellate Court accepted the appeal of respondent/husband and remanded the case to Family Court for decision afresh on merits---Contention of the petitioner was that Appellate Court erred in observing that Family Court has jurisdiction to try a suit for recovery of "bridal gifts" as restoration of dower to the husband---Validity---Subject-matter of the suit of respondent/husband could safely be termed as "bridal gifts"---Claim pertaining to recovery of "bridal gifts/personal property" of wife fell within the jurisdiction of Family Court, therefore, the suit for recovery of "bridal gifts" filed by husband was competent before Family Court---Constitutional petition was dismissed.

Muhammad Ijaz Ahmad Khan v. Judge, Family Court and another 2005 YLR 2799 ref.

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

----S. 5, Sched. & S.7---Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976) S.2(a)---Civil Procedure Code (V of 1908), S.10---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of bridal gifts by husband after dissolution of marriage on the basis of khula---Former suit not decided on merits---Res judicata, principle of---Scope---Petitioner/wife filed a suit for dissolution of marriage on the basis of khula which was resisted by the respondent/husband with claim of recovery of gold ornaments given to his wife as bridal gifts---Trial court decreed the suit of the petitioner/wife to the extent of dissolution of marriage on the basis of khula but to the extent of husband's claim for recovery of gold ornaments/bridal gifts, it was directed to knock the door of proper forum---Respondent/husband filed fresh suit seeking decree for recovery of gold ornaments before Family Court---Family Court dismissed the suit for recovery of bridal gifts being hit by res judicata---Appellate Court accepted the appeal of respondent/husband and remanded the case to trial court for decision afresh on merits---Contention of the petitioner/wife was that in presence of earlier judgment of the Family Court, whereby no relief was given to respondent/husband, second suit was not competent and the same was hit by principle of res judicata---Validity---Earlier decision of Family Court was not on merits of the controversy, therefore, subsequent suit would not hit by res judicata---In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits, therefore the subsequent suit for recoverywascompetent---Constitutionalpetitionwasdismissed.

Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332rel.

(c) Administration of justice---

----Spirit of law requires decision of controversies on merits rather than on technical knock out.

Akram Shaheen for Petitioner.

Mst. NOMAIL ZIA VS ADNAN RIAZ
2014 C L C 87
[Islamabad]
Before Muhammad Anwar Khan Kasi, C.J.
Mst. NOMAIL ZIA----Petitioner
Versus
ADNAN RIAZ----Respondent
Writ Petition No.3133 of 2013, decided on 16/09/2013.

ORDER

MUHAMMAD ANWAR KHAN KASI, C.J.--- The facts relevant for the disposal of this petition are that on 26-3-2011, the petitioner filed a suit for dissolution of marriage on the basis of Khula against respondent No.1, who contested the same through a written reply, wherein he prayed for dismissal of the suit with further prayer that if the plaintiff [petitioner herein] resists to carry on the marriage, she may be directed either to return the gold ornaments mentioned in the plaint and other articles or pay its value to the tune of Rs.25,00,000/-. [Twenty-Five Lac] The suit was decreed vide Judgment and decree dated 6-7-2011. It's operative Para 3 is reproduced hereunder:--

"The suit of plaintiff for dissolution of marriage is hereby decreed on the basis of khula. Copy of this Judgment be sent to Chairman Arbitration Council, concerned. It is contention of learned counsel for the defendant that she be ordered to restore the gifts and benefits, taken by her from defendant. In my humble view to this effect defendant has the other lawful course upon to him, If so advised." [Emphasis provided]

2.None of the parties questioned the judgment and decree of the learned Judge Family Court dated 6-7-2011, however, the respondent No.1 filed a suit for recovery of gold/diamond and other articles against the petitioner seeking decree of the same or in alternative value thereof. The petitioner contested the suit through written reply refuting the claim of respondent No.1 and also filed an application under Order VII, Rule 11, C.P.C. which was resisted by the respondent No.1 through a written reply. The learned trial Court, vide order dated 17-9-2012 accepted the application of the petitioner and rejected the plaint under Order VII Rule 11, C.P.C. Operative para 05 of the order is important which reads as under:---

"Butdespiteoffilinganyappealagainstthejudgmentdated 6-7-2011 being dissatisfied from the judgment, he filed instant suit for recovery of gold/diamond ornaments and other articles, whereas 3rd Schedule of West Pakistan Family Courts Act, 1964, section 5 Sched and S.10(4) of Muslim Family Laws Ordinance, the said issue had to be resolved in same so also the suit is barredunder section 10 of C.P.C., therefore, relying upon the case of Muhammad Ijaz Ahmad Khan vs. Judge Family Court and another" reported in 2005 YLR 2799 Lahore which is reproduced as under:---

The decree for dissolution of marriage having been passed in favour of Mst. Samia Naz is upheld and is not being disturbed but the case is remanded to the learned Judge Family Court, concerned, to grant an opportunity of hearing to the parties, record the evidence and to determine as to how much Haq Mehr was received by wife in consideration of marriage at the time of marriage and as to whether the petitioner/defendant was entitled to such benefits or not and to pass a decree strictly in accordance with law. In view of above discussion and relevant provision of law, the plaint is rejected under Order VII, Rule 11 C.P.C."

3.Feeling aggrieved by that order, respondent No.1 went in appeal which was allowed by the learned Additional District Judge-West, Islamabad vide Judgment dated 18-6-2013. The order impugned was set aside and the case was remanded to the learned Family Court for its decision in accordance with law.

4.Learned counsel questioned the order of learned Additional District Judge mainly on the ground that the subject-matter of dower is right of wife recoverable through Family Court, however, Family Court has no jurisdiction to restore any dowry to the husband, and therefore, respondent No.1 has no cause of action. It is further contended that the learned Appellate Court erred in observing that a Family Court has jurisdiction under section 5 of the Family Courts Ordinance to try a suit for recovery of bridal gifts as restoration of dower to the husband.

5.It is the contention of the learned counsel that in presence of earlier judgment of the learned Family Court, whereby no relief was given to the respondent No.1 and still holds the field, second suit is not competent and is hit by the principle of res judicata.

6.Heard and record perused.

7.The proposition in this case is that the petitioner filed a suit for dissolution of marriage on the basis of Khula which was resisted by the respondent No.1 [husband] wherein besides refuting the allegations of the wife, he also claimed for recovery of gold ornaments in case, the petitioner refused to live with him.

8.The learned Trial Court decreed the suit of the petitioner to the extent of dissolution on the basis of Khula but to the extent of claim of the respondent No.1, it was directed to knock the proper forum.

9.That judgment and decree was never challenged by the parties and thus attained finality.

10.Thereafter the respondent No.1 came up with fresh suit seeking decree for recovery of gold ornaments or price in lieu thereof. The petitioner besides filing written reply also moved a separate application under Order VII, Rule 11, C.P.C. which was allowed by the learned trial Court by observing that the respondent No.1 never filed appeal against the first decree which has attained finality wherein the claim of the respondent No.1 was not accepted, therefore, second suit is not maintainable on the basis of res judicata.

11.The respondent No.1 filed an appeal against the said judgment which was allowed by the learned Additional District Judge and the case was remanded to the learned trial Court for its decision afresh by observing that the suit is for recovery of dowry articles and, therefore, cannot be tried together with the suit for dissolution of marriage and that the learned Family Court is competent to try the suit.

12.Heard and record perused.

13.The claim of the respondent No.1 is contained in Para 6 of his plaint wherein he asserted that he had given certain gold ornaments to the petitioner on various occasions, from engagement till divorce, therefore, he is entitled to recover same as the petitioner had broken the marriage bond.

14.For resolving the controversy, the definition of bridal gifts has tobeascertained.Inthisrespect,section2(a)ofDowryaBridal Gifts [Restriction] Act, 1976 is very much relevant which reads as under:---

"2(a) "Bridal Gift" means any property given as a gift before, at or after the marriage, either directly or indirectly, by the bridegroom or his parents to the bride in connection with the marriage but does not include "Mehar".

15.The subject-matter of the suit of the respondent No.1, therefore, can safely be termed as Bridal Gifts under section 2 (a) of Dowry and Bridal Gifts [Restriction] Act, 1976.

16.Now we advert to the forum where a person with such claim may file a suit. Pursuant to Ordinance, LV of 2002, amendment was made in section 7 of West Pakistan Family Courts Act, 1964, whereby personal property of a wife as defined under section 2(a) of Bridal Gifts [Restriction] Act, 1976, was brought in the jurisdiction of Family Court. For convenience proviso to section 7 is reproduced hereunder:---

"Provided that a plaint for dissolution of marriage may contain all claims relating to dowry, maintenance, dower, personal property and belongings of wife, custody of children and visitation rights of parents to meet their children."

17.It is thus clear that the claim of the respondent No.1 falls within the jurisdiction of Family Court and, therefore, the suit of the respondent No.1 is competent in its present form.

18.Adverting to the next objection that the suit is hit by the principle of res judicata, it is obvious that a decision not being on merits of the controversy would not be hit by res judicata in a subsequent suit. This view is solicited from the case-law "Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332], wherein it was held that "in order that a matter may be said to have been heard and finally decided, the decision in the former must have been on the merits."

19.The respondent No.1 cannot be non-suited merely on the basis of technicalities. It is the spirit of law to decide controversies on merits rather than on technical knockout. The petitioner, on the other hand, shall have full opportunity to re-but the claim of the respondent No.1 by adducing her evidence.

20.In view of above, the second suit of the respondent No.1 is competent before the learned Judge Family Court, who shall decide the same after taking evidence from both the sides.

21.The petition, being devoid of merits, is dismissed in limine.

JJK/119/Isl.Petition dismissed.

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Wife filed Case to seek Khula on the ground that husband committed violence against her and that she can't live with her husband within the limits of Allah.

 2021 LHC 1942

Wife filed Case to seek Khula on the ground that husband committed violence against her and that she can't live with her husband within the limits of Allah.

Family court granted Exparte Decree on the ground that husband appeared and used delaying tactics in recording his statement.

Since, Family.law does not provide appeal against exparte Decree of Khula. Hence Husband filed writ petition which dismissed by Lahore High Court that evidence of family court can't be re assessed .

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S.5 Family Courts Act, 1964. Plea of oral divorce. Validity. Husband was required to send notice of divorce to Arbitration Council under Muslim Family Laws Ordinance, 1961 and also to send copy of such notice to wife by registered post. No such proceedings having been ever conducted, oral allegation of Talaq would neither be effective nor valid and binding on wife, who was legally entitled to past maintenance.

P L D 2006 Lahore 255

(a) Interlocutory application--

---Order passed in an interlocutory application---Validity---Such order was merely a tentative assessment and would not take place of findings to be recorded by Court on basis of evidence, which might be produced by parties.

(b) Civil Procedure Code (V of 1908)---

----O. XV, R.3---Decision of suit on basis of an issue out of several issues---Scope---Provision of O.XV, R.3, C.P.C., could be invoked in appropriate cases to dispose of a suit by decision on a certain issue---When determination of other issues was essential and also dependent upon recording of evidence, then fragmentation of trial would delay decision and prolong litigation, which course should not be encouraged---Principles.

Ibrahim v. Muhammad Hussain PLD 1975 SC 457; Mahomed Sulaiman v. Kumar Birendra AIR 1922 PC 405; Ray Nicholas Lines and others v. All India Spinners Association and another AIR (34) 1947 Pat 185; Joban Das v. Ganga Ram and others AIR (36) 1949 Him. Prad. 7; Bashir Ahmed and 8 others v. Aftab Ahmad and 2 others PLD 1976 Lah. 1433 and Raza Hussain v. Haji Qaisar Iqbal and 7 others 1996 MLD 55 rel.

(c) Administration of justice---

----Fragmentation of trial would delay decision and prolong litigation, thus, Court should not encourage such a course.

Dr. Danishwar Malik for Petitioner.

Ch. Bashir Ahmed and Muhammad Ahmed Qayyum for Respondent.

Date of hearing: 20th February, 2006.

 Dr. ANJUM HABIB VOHRA VS WASEEM AHMAD KHAN
P L D 2006 Lahore 255
Before Syed Zahid Hussain, J
Dr. ANJUM HABIB VOHRA---Petitioner
Versus
WASEEM AHMAD KHAN---Respondent
Civil Revision No.1714 of 2005, heard on 20/02/2006.

JUDGMENT

SYED ZAHID HUSSAIN, J.--Order dated 4-7-2005 whereby application moved by the petitioner for decision of issue No.3-A in the first instance was dismissed by the learned trial Court, has been assailed through this revision petition.

2. The contention of the learned counsel for the petitioner is that since Rule 3 of Order XV of the Code of Civil Procedure, 1908 permitted and enabled the petitioner to make such an application, the same was moved, which application has been misconceived by the learned trial Court and a wrong decision has been made as if the application was for treating the issue as "preliminary" one. It is further contended that even if, the. application mentioned an incorrect legal provision yet it was indeed an application under Order XV, Rule 3 of the Code of Civil Procedure, 1908, which should have been decided by 'the trial Court within the parameters of the said provision of law. According to the learned counsel such illegality committed by the trial Court, need to be corrected and interfered with by this Court in revisional jurisdiction under section 115 of the Code of Civil Procedure, 1908.

3. The learned counsel for the respondent on the other hand has supported the order passed by the learned trial Court who has urged that in the earlier round when C.R.No.597 of 2005 was disposed of by this court with consensus on 23-5-2005, not only the case was transferred from the Judicial Officer then seized of the matter it was ordered to be tried expeditiously but now an attempt has been made to prolong the litigation by seeking piecemeal decision of the matter although the respondent/plaintiff was ready to cooperate in the decision of the matter expeditiously.

4. The respective contentions have been considered. Suffice it to observe that in the suit for specific performance which is pending before the trial Court initially the issues were framed on 24-9-2004 whereafter an additional issue (No.3-A) was also framed. At the stage of recording of evidence, application for rejection of- the plaint under Order VII, Rule 11 of the Code of Civil Procedure, 1908 was filed by the petitioner/ defendant, which was dismissed by the learned trial Court vide order dated 18-1-2005. C.R. No.597/2005 was filed in order to assail the said order. The said revision petition was disposed of on 23-5-2005 in the following manner:--

"(i) That the factual controversies emerging from the respective pleas in the suit qua which even issues have been framed, need to be decided after recording evidence by the trial Court. Application for seeking rejection of the plaint under the circumstances and litigation ensuing qua the same would have merely prolonged the agony of litigation between the parties.

(ii) The apprehension of the petitioner as expressed by the learned 'counsel that while deciding application the trial Court has made certain observations which may prejudice the stance of the petitioner-defendant, can be taken care of, by observing that' such an order passed by the Court in an interlocutory application is merely a tentative assessment and does not take the plea of findings to be recorded by the Court on the basis of evidence that may be produced by the parties. I have no doubt that the court while dealing with the suit would not in any way be influenced by any such assertion noted in the order or observation made therein and that part of the order of the trial Court whereby the petitioner has been burdened with costs of Rs.2000 in view of the above consensus is modified that no costs will be claimed by the respondent from the petitioner.

(iii) In order to save the parties from lengthy and prolonged litigation, the learned counsel for the parties have agreed that the trial Court may be ordered to conclude the trial and dispose of the same expeditiously. Accordingly the trial Court is directed to conclude the trial and decide the suit before the end of year 2005.

(iv) In view of the approach adopted by the trial Court in order dated 18-1-2005, the learned counsel for the petitioner has expressed certain apprehensions that the said learned Court may not feel free to decide the matter on merits. In order to ward off this apprehension, the learned counsel for the respondent has agreed to the transfer of the suit to any other court of competent jurisdiction. For that matter, let the file be placed before the learned District Judge, Lahore, who will entrust the suit to some other learned Civil Judge, for its trial and conclusion in accordance with law."

It was thereafter that application (under Order XIV and section 151 of the Code of Civil Procedure, 1908) was filed on 21-6-2005 with the prayer that "the said issue may expediently be tried and decided first postponing the other issues to facilitate quick decision of the suit." Issue which was sought to be "tried and decided first" was No.3-A, which reads as follows:

"Whether the defendant has rescinded the sale agreement through notice dated 13-7-2004, and paid Rs.20,00,000 to the plaintiff ?OPD."

The application was contested and as observed above, was dismissed on 4-7-2005. A great stress has been laid by the learned counsel to highlight that the object and purpose of Rule 3 of Order XV of the Code of Civil Procedure, 1908 has been ignored by the trial Court who should have decided the said issue in the first instance.

5. On consideration of the matter I am however unable to countenance the stance of the learned counsel, since there were other issues, determination whereof was also essential. Indeed the decision of issue No.3-A by the 'trial Court in the first instance would have been dependant upon the recording of evidence. The possibility cannot be ruled out that the rest of the issues would have also entailed recording of evidence for their determination. It would have merely been duplication and double dealing of matter and exercise of recording evidence which would have continued to engage the parties in the litigation for a long time. That cannot be the object of the law. Not only that the fragmentation of the trial delays the decisions and prolongs the litigation, C the court should not encourage such a course. Indeed it was disapproved by the Hon'ble Supreme Court of Pakistan in Ibrahim v. Muhammad Hussain (PLD 1975 SC 457). Though Rule 3 of Order XV of the Code of Civil Procedure, 1908 can be invoked in appropriate cases to dispose of the suit by decision on a certain issue yet it is not ordinarily so done and the Court is expected to record findings and pronounce its opinion D on all issues particularly when the determination of the issues require recording of evidence. Reference in this context may be made to Mahomed Sulaiman v. Kumar Birendra (AIR 1922 Privy Council 405), Ray Nicholas Lines and others v. All India Spinners Association and another (AIR (34) 1947 Patna 185 ) and Joban Das v. Ganga Ram and others (AIR (36) 1949 Himachal Pradesh 7). In Bashir Ahmed and 8 others v. Aftab Ahmad and 2 others (PLD 1976 Lahore 1433) it was observed that since the evidence was required to be led for the disposal of almost all the issues, none of the issues could be decided separately without recording evidence on all the issues. The prayer made by one of the parties before the trial Court for decision of some of the issues was declined and revision petition was dismissed. In Raza Hussain v. Haji Qaisar Iqbal and 7 others (1996 MLD 55) with reference to Rule 3 of Order XV of the Code of Civil Procedure, 1908 it was observed that if the Court is called upon to record evidence of the parties for decision of an issue it should be decided along with the other issues. The order of the trial Court declining the prayer for decision of an issue in the first instance was maintained and revision petition was dismissed.

In the instant case, as mentioned above, number of issues have been framed. Issue No.3-A is one of those issues. All the issues require recording of evidence. It is not only consistent with the policy, rationale E and object of the law that the piecemeal decisions should be avoided, it is also in the interest of the parties as well to adopt such a course,' which may not prolong the litigation. In dismissing the application the learned trial court did not commit any illegality or error of jurisdiction which could attract the supervisory jurisdiction of this court under section 115 of the Code of Civil Procedure, 1908. I would, therefore, decline interference with the order passed by the trial Court.

6. It has been complained by the learned counsel for the petitioner that after the filing of the revision petition examination-in-chief of a witness was recorded by the trial Court, which he should not have done. The order-sheet shows that there was no restraint order by this Court till 18-7-2005 when the proceedings were stayed. No evidence, is stated to have recorded by the trial Court after the passing of such a restraint order. The learned counsel for the respondent, however, states' that the witness whose examination-in-chief was recorded will be produced by the respondent for facing cross-examination. It should redress such a grievance of the petitioner.

It may be observed that while disposing of the above mentioned earlier revision petition it was observed with the concurrence of the then learned counsel for the parties that the trial Court will decide the suit before the end of year, 2005. Since it is not possible now to adhere the said schedule it is expected and observed that the learned trial Court will proceed in the matter expeditiously and hopefully decide the suit before the end of year 2006.

The revision petition is dismissed accordingly with no order as to costs.

S.A.K./A-24/L???????????????????????????????????????????????????????????????????????????????????? Revision dismissed.

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-Decree for dissolution of marriage was granted to wife by Family Court on ground of impotency of husband on only evidence furnished by Lady Doctor to the effect that hymen of the wife being intact, she was a virgin--

1998 M L D 1216

Dissolution of Muslim Marriages Act (VII of 1939)---

----S. 2(v), proviso (c)---Dissolution of marriage on ground of impotency of husband---Decree for dissolution of marriage was granted to wife by Family Court on ground of impotency of husband on only evidence furnished by Lady Doctor to the effect that hymen of the wife being intact, she was a virgin-- According to settled medical and scientific phenomenon, factum of hymen being intact, was not a conclusive proof of virginity, because hymen in certain cases is so flexible that it is not ruptured and at times was ruptured by incidence of first delivery---Evidence on record indicated that husband and wife had tried to produce their own medical certificates by consulting Doctors themselves, but Court had not referred same for examination which had shown touch of personal involvement of Court---Better approach would have been to get the parties medically examined through Court---Application filed by husband under proviso (c) of S. 2(v) of Dissolution of Muslim Marriages Act, 1939, was also not considered by Family Court before passing decree for dissolution of marriage on ground of impotency of husband-- Family Court had acted without jurisdiction and also had exercised jurisdiction not vested in it as Family Court could not pass decree for dissolution of marriage on the ground of impotency of husband, unless, on application of husband, he was required to satisfy the Court within one yeas from the date of such order that he had ceased to be impotent---If husband so satisfies the Court within such period qua the same woman involved, no decree for dissolution of marriage would be passed on ground of impotency---Judgment of Family Court was set aside and case was remanded to be decided afresh after complying with provisions of proviso (e) of S. 2(v) of Dissolution of Muslim Marriages Act, 1939.

Qazi Badar-ul-Islam for Petitioner.

Sher Muhammad Khan Tanoli for Respondents.

Date of hearing: 11th February, 1998.

 TAJ DIN VS KARIM BUKHSHRT
1998 M L D 1216
[Peshawar]
Before Sardar Muhammad Raza and Tariq Pervez. JJ
ABDULLAH---Petitioner
versus
Mst. SHAHEEN and 2 others---Respondents
Writ Petition No. 151 of 1997, decided on 11/02/1998.

JUDGMENT

SARDAR MUHAMMAD RAZA, J.---Abdullah S/o Sher Zaman has ,called into question, under Article 199 of the Constitution, the judgment dated 28-11-1998 passed by Judge Family Court Mansehra; whereby, a decree for dissolution of marriage stands granted to Mst. Shaheen, the wife of Abdullah on the material ground, inter alia, of impotency.

2. Without referring to the minor or major details of evidence on record we are convinced at the very outset that the learned Judge Family Court had acted without jurisdiction and also has exercised the jurisdiction not vested m her. She had failed to apply the law in its true sense.

3. A decree based on impotency is covered by section 2(v) proviso (c) of the Dissolution of Muslim Marriages Act, 1939 where proviso (c) reproduced below is of prime importance.

"(c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground. "

4. No family Court can pass a decree for dissolution of marriage on the ground of impotency of husband unless, on the application of the husband, the latter is required to satisfy the Court within one year from the date of such order that he has ceased to be impotent. If the husband so satisfies the Court within such period, qua the same woman involved, no decree shall be passed on the ground of impotency.

5. In the instant case the decree was passed by Mrs. Muneera Abbasi learned Judge Family Court Mansehra on 28-11-1996 but before that, on 10-11-1996 the husband had filed an application (Annexure-F) the Contents whereof fully covered the requirements of proviso (c) and hence no decree could be passed unless further requirements of proviso (c) were complied with. The husband had to be provided time to satisfy the Court within the given period that he was not impotent. The learned Judge Family Court utterly failed to exercise the jurisdiction vested in her, in accordance with law.

6. While parting we may also remark that the impotency of the husband was based on the only evidence furnished by the Lady Doctor to the effect that the hymen of the wife was intact and that, hence, she was a virgin. The learned Judge was probably not aware of the settled medical and scientific phenomenon that the factum of hymen being intact, is not a conclusive proof of virginity. The hymen in certain cases is so flexible that it is not ruptured and at times is ruptured by the incidence of first delivery. Such type of singular evidence, we observe, must be appreciated by the Courts in the light of the aforesaid scientific and medical reality.

6-A. The evidence on record indicates that the husband and the wife have tried to produce their own medical certificates by consulting the Doctors themselves and without having been referred for such examination by the Court. This indicates a touch of personal involvement and, hence; the better approach would have been to get the parties medically examined through the Court. We would direct that the Court shall refer both the parties to be examined by a medical board for the required determination.

7. With these findings and observations the writ petition is accepted, the impugned judgment is set aside and the case is remanded back to the learned Judge' Family Court for giving decision afresh after complying with the provisions of proviso (c) to section 2 of the Dissolution of Muslim Marriages Acct. Parties are directed to appear before the Trial Court on 21-2-1998 with direction that-the trial shall be concluded without the least of the required delay.

H.B.T./43/P Petition accepted.

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-Action of Municipal Local Authorities determining the legality/genuineness or otherwise of Nikahnama between the parties, was without backing of legal authority--

2004 C L C 652

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

----Ss. 2(a), 5 & Sched---Muslim Family Laws Ordinance (VIII of 1961), Ss.6, 7, 8 & 9---Constitution of Pakistan (1973), Art. 199---Constitutional petition----Dispute regarding determination of legality/validity of marriage or genuineness or otherwise of Nikahnama---Forum to determine---Dispute regarding determination of legality/validity of the marriage or genuineness or otherwise of Nikahnama could not be questioned before Arbitration Council---Arbitration Council had jurisdiction only to matters mentioned in Ss.6, 7, 8 & 9 of Muslim Family Laws Ordinance, 1961 and for proceedings under those sections the Legislature had framed Rules under the Muslim Family Laws Ordinance---Arbitration Council had not the power to make unlawful anything declared lawful by Islam nor could do vice versa---Provisions of S.6 of Muslim Family Laws Ordinance, 1961 which dealt with polygamy to protect the rights of existing wife/wives and interest of her children, had not expressly declared the subsequent marriage illegal---Said law had only prescribed a procedure to be followed for subsequent marriages and punishment for its non-observance---If permission at the time of subsequent marriage was not sought from Arbitration Council, it would not make subsequent marriage as illegal or invalid---Disputes arising between spouses were to be adjudicated upon by Family Courts and matters/suits exclusively triable by Family Courts had been mentioned in Schedule under S.5 of West Pakistan Family Courts Act, 1964---Disputes mentioned in Schedule could only be decided by Family Court, but Family Court would not question the validity of any marriage registered in accordance with provisions of Muslim Family Laws Ordinance, 1961 nor record any evidence with regard thereto to be admissible before such Court---Suit in which the right to property or to an office is contested is a suit of civil nature "notwithstanding", that such right may depend entirely on the decision of question as to religious rites or ceremonies-- Petitioner, in the present case, whether was legally wedded wife of deceased or not could not be decided by Municipal Authorities but same was the exclusive jurisdiction of a Civil Court to determine the rights and interests of parties with regard to the property of deceased---Action of Municipal Local Authorities determining the legality/genuineness or otherwise of Nikahnama between the parties, was without backing of legal authority---All proceedings conducted by such authorities in the matters were declared illegal, without lawful authority and without jurisdiction by High Court in exercise of its Constitutional jurisdiction.

Nazir Ahmed Ghazi for Petitioner.

M. Sohail Dar, A.A. -G. for Respondents Nos. 1 to 3.

Rana Muhammad Arif for Respondent No.4.

Date of hearing: 16th October, 2003.

 ALIA PARVEEN VS EXECUTIVE DISTRICT OFFICER (REVENUE), SHEIKHUPURA
2004 C L C 652
[Lahore]
Before Muhammad Akhtar Shabbir, J
ALIA PARVEEN---Petitioner
Versus
EXECUTIVE DISTRICT OFFICER (REVENUE), SHEIKHUPURA and 3 others---Respondents
Writ Petition No. 7254 of 2003, heard on 16/10/2003.

JUDGMENT

The facts giving rise to the present writ petition are to the effect that the petitioner Aliya Perveen was married to Malik Muhammad Riaz son of Muhammad Khan in accordance with the Injunctions of Qur'an and Sunnah in the presence of respectable witnesses on 25-4-1994 and the Nikahnama was duly registered with the concerned Union Council. The spouses led their wedded life and enjoyed matrimonial relations for about four years as a result of which three children namely Rustam Riaz, Sufian Riaz and Laila were born. The husband of the petitioner had already married to Mst. Asmat Riaz-respondent No.4. From this wedlock the spouses had no issue.

2. Malik Muhammad Riaz--husband of the petitioner died unfortunately on 24-5-1997 leaving some landed property.

3. To deprive of the share of inheritance of the property of the deceased, the petitioner and her children brother of respondent No.4 had moved an application to respondent No.2-Assistant Director, Local Government, Sheikhupura, to make an enquiry to the effect that the Nikahnama of the petitioner with deceased Malik Riaz was ingenuine. Respondent No.2 entrusted the enquiry to the Project Manager Markaz Khanqah Dogran to determine the genuineness of the Nikahnama of the petitioner. Later on the enquiry was entrusted to the Project Manager, Ahmadpur who conducted the detailed inquiry, recorded statement of the respectable witnesses and. collected other material with regard to the disputed issue. The Inquiry Officer concluded and opined that the, petitioner was the legally-wedded wife of late Malik Riaz. During the pendency of the enquiry. proceedings a Mutation No.7932 of inheritance of the deceased was entered and the petitioner had approached to the Assistant Collector-II, Tehsil Sarai Alamgir, District Gujrat for sanctioning of mutation of inheritance in her favour and her children in accordance with the Muslim Law of Inheritance.

4. By sanctioning Mutation No.7932 petitioner and her children were deprived of the property left by the deceased. The inquiry conducted by Project Manager, Safdarabad, District Sheikhupura on 21-7-1998 was assailed by respondent No.4 before respondent No.1 who vide his order, dated 18-4-2003 remanded the matter to the Tehsil Municipal Officer, Sheikhupura, which has been challenged through the instant writ petition.

5. Learned counsel for the petitioner contended that the dispute with regard to the marriage of the petitioner with deceased Malik Muhammad Riaz and questions of genuine and ingenuineness of Nikahnama could not be determined by respondents Nos. 1 to 3. The order impugned by respondent No. 1 was without jurisdiction, a nullity in law.

6. On the other hand, learned counsel for the contesting respondent No.4 vehemently opposed the arguments of learned counsel for the petitioner, supported the impugned order raising objections and pointing out defects in the Part Nikah produced by the petitioner as Annexure "A". Learned counsel lastly argued with force that the powers of the Arbitration Council were conferred on the Assistant Director, Local Government-respondent No.2 when the Arbitration Council was not in existence. The learned counsel has further contended that while the contracting second marriage with the petitioner, Malik Muhammad Riaz did not get permission from the Arbitration Council. He has drawn the attention of this Court to the provisions of section 6 of the Muslim Family Laws Ordinance, 1961.

7. I have heard arguments of learned counsel for the parties and perused the record as well as examined the law.

8. Clause (a) of section 2 of the Muslim Family Laws Ordinance, 1961 emerges "Arbitration Council" which means a body consisting of the Chairman and a representative of each of the parties to a matter, dealt with in this Ordinance provided that, where any party failed to nominate a representative within the prescribed time, the body formed without such representative shall be the Arbitration Council. Section 6 of the Ordinance has empowered the Arbitration Council to accord permission in writing to a man to contract another marriage and if the marriage is contracted without the permission of the Arbitration Council, it would not be registered under the Ordinance, and the application for permission under subsection (1) of section 6 shall be submitted to the Chairman in the prescribed manner together with the prescribed fee and state the reasons for the proposed marriage and whether the consent of existing wife or wives has been obtained thereto, and in deciding the application the Arbitration Council shall record its reasons for the decision and any party may, in the prescribed manner within the prescribed period, and on payment of the prescribed fee, prefer an application for revision to the Collector.

9. Section 7 of the Ordinance further conferred powers on the Arbitration Council for the purpose of bringing about reconciliation between the parties, if a man wishes to divorce his wife, give the Chairman a notice in writing of his having done so and on receipt of the notice, the Chairman shall constitute an Arbitration Council and shall take all steps necessary to bring about such reconciliation. Section 9 further empowers the Arbitration Council to determine the maintenance allowance in favour of the wife, if any husband fails to maintain her.

10. From the plain reading of the above sections of the Ordinance it is manifestly clear that the Arbitration Council enjoys only those powers which are conferred on it by section 7, 8 and 9 of the Ordinance.

11. The dispute regarding determination of legality/validity of the marriage or genuineness/ingenuineness of Nikahnama cannot be questioned before the Arbitration Council. It shall have the jurisdiction only to those matters mentioned in the, above referred sections. For proceeding under these sections the Legislature has framed Rules under the Muslim Family Laws Ordinance, 1961.

12. The Arbitration Council has not the power to make unlawful anything declared lawful by Islam, nor could do vice versa. The philosophy behind the provision of section 6 of the Family Laws Ordinance deals with polygamy to protect the rights of the existing wife/wives and interest of leer children. Section 6 (ibid) has not expressly declared the subsequent marriage illegal and has only prescribed a procedure to be followed for the subsequent marriages and punishments for its non-observation and the spirit of the section is reformative only as in fact same has prescribed a corrective measures for prevention of injustice to the existing wife/wives.

13. If the permission at the time of marriage by Malik Riaz with the petitioner was riot sought from the Arbitration Council it would not make the marriage as illegal or invalid.

14. Section 3 of the Family Courts Act establishes Family Courts and the Family Courts enjoy the jurisdiction under section 5 of the Act, which is reproduced as under:--

"Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Courts entertain, hear arid adjudicate upon the matters specified in the Schedule."

Meaning thereby the disputes arising between the spouses are to be adjudicated upon by the Family Courts. The matters/suits exclusively triable by the Family Courts are mentioned in the schedule under section 5 of the Act which are (i) Dissolution of Marriage, (ii) Dower, (iii) Maintenance, (iv) Restitution of conjugal rights, (v) Custody of children, (vi) Guardianship and (vii) Jactitation of marriage.

15. Jactitation of marriage means-that marriage in fact exists or it is a false pretence of being married.

16. All the above mentioned disputes can only be decided/determined by the Family Court but the Family Court shall not question the validity of any marriage registered in accordance with the provisions of Muslim Family Laws Ordinance, nor record any evidence in regard thereto to be admissible before such Court. But this section does not prevent a party to the marriage from leading evidence to show that the marriage did not in fact take place as alleged or that fraud had been perpetrated against a party or that his/her signatures on the Nikahnama were also forged. Fraud vitiates even the most solemn transaction. A marriage which is otherwise void, for example because it was solemnized between the persons. Prohibited decrees cannot be challenged in a Family Court, merely because it was registered by Nikah Register in accordance with the provisions of section 5 or the Muslim Family Laws Ordinance. 1961. In this context reference can be made to the case of Muhammad Azam v. Muhammad Iqbal and others KLR 1984 Shariat Court 33

17. Family Courts were established for expeditious settlement and disposal of certain family disputes and exclusive jurisdiction was conferred upon the Court to entertain, hear and adjudicate upon the matters specified in the Schedule of the Family Courts Act. The question whether the marriage of the petitioner with Malik Muhammad Riaz had been contracted or not, can only be decided by the Family Court in its exclusive jurisdiction. Respondents Nos. 1 and 2 have no jurisdiction to declare or determine the question of marriage between the petitioner and her deceased husband Muhammad Riaz respondents Nos.1 and 2 by indulging themselves in the question of marriage of the spouses have exceeded the jurisdiction.

18. Learned counsel for the respondent when confronted with the above leeal aspect of the case, could not respond.

19. The application of challenging the Nikahnama of petitioner with Muhammad Riaz had been filed by Malik Amjad Hussain, the brother of respondent No.4 who having no locus standi was not competent to file the same. He was not a party to the suit. The dispute was between two wives of deceased Muhammad Riaz and that arose due to the property of the deceased and to deprive of the share of inheritance, whole drama was staged by the brother of respondent No.4, Malik Amjad Hussain.

20. As to the question of inheritance of the parties, Civil Court has the jurisdiction to try all suits of a civil nature except suits of which their cognizance is either expressly or impliedly barred. A suit in which the right to property or to an office is contested is a suit of a civil nature "notwithstanding', that such right may depend entirely on the decision of question as to religious rites or ceremonies.

21. The petitioner is whether legally-wedded wife of the deceased Malik Muhammad Riaz or not cannot be decided by respondents Nos. 1 to 3. It is the exclusive jurisdiction of a Civil Court only to determine the rights and interest of the parties with regard to the property of the deceased. The action of respondents Nos.1 to 3 determining the legality/ genuineness or ingenuineness of Nikahnama between the parties is without backing of legal authority. Learned counsel for the respondent Nos.4 has not been able to establish that how and from which law, respondents Nos. 1 to 3 have derived the powers to adjudicate upon the matter in issue.

22. For the foregoing reasons, this writ petition is accepted and all the proceedings conducted by respondents Nos.1 and 2 determining the genuineness/ingenuineness of Nikahnama of the petitioner with Malik Muhammad Riaz and the impugned order passed by respondent No.1 is declared illegal, without lawful authority without jurisdiction and of no legal effect.

H.B.T./A-990/LPetition accepted.

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