-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.