LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
W.P. No. 3812 of 2019.
Mst. Saman Naseer v. Additional District Judge, Lahore etc.
J U D G M E N T
Date of hearing: 13.11.2019, 14.11.2019, 20.11.2019,
05.12.2019, 09.12.2019, 19.12.2019 &
23.12.2019.
Petitioner by: Mr. Abdul Khaliq Safrani, Advocate assisted
by Mr. Muhammad Awais Riaz, Advocate.
Respondents by: Mr. Shoukat Rafiq Bajwa, Advocate assisted
by Mr. Faiz ur Rehman, Advocate for
respondent No.3 .
Shujaat Ali Khan, J: – Unnecessary details apart, the
petitioner filed suit for jactitation of marriage against
respondent No.3 which was dismissed by the learned Judge
Family Court, Lahore (learned Trial Court) vide judgment &
decree, dated 04.05.2018, however, marriage between the
parties was dissolved on the basis of Khula. Being aggrieved of
the decision rendered by the learned Trial Court, the petitioner
preferred an appeal but without any success as the same was
dismissed by the learned Additional District Judge, Lahore
W.P. No. 3812 of 2019.
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(learned Appellate Court) through judgment & decree, dated
22.12.2018; hence this petition.
2. Learned counsel for the petitioner submits that upon
denial of execution of valid Nikah by the petitioner, onus
shifted on the shoulders of respondent No.3 to prove valid
Nikah between the parties but learned Trial Court wrongly
placed onus of the said issue on the petitioner; that initially,
while filing written statement, respondent No.3 mentioned the
date of marriage as 26.11.2013 and that of departure (rukhsti) as
26.11.2014 but while filing suit for restitution of conjugal rights
he averred that departure (rukhsti) took place on the date of
Nikah i.e. 26.11.2013 and in the affidavit-in-evidence filed
before learned Trial Court he knowingly omitted to mention the
date of marriage with a view to camouflage material
contradiction on his part during various proceedings; that both
the courts below also formed opinion against the petitioner for
untenable reason that she did not appear in the witness box
without considering that not only under section 17 of the
Family Courts Act, 1964 she could appear before the Court
through an attorney but also she entered appearance before
learned Trial Court through attorney after seeking requisite
permission from the Court; that careless attitude on the part of
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the learned Trial Court is evident from the fact that though it
observed in its judgment that the audio recording, initially
produced by respondent No.3, was not available on court file
but in the later part of the judgment it relied upon the same;
that DW-4 & DW-6, who allegedly witnessed the Nikah
between the parties, did not utter even a word about the fact that
the petitioner put her signatures or thumb impression in their
presence; that non-mentioning of exact address of the petitioner
in Nikah Nama by the Nikah Khawan is proof of the fact that
vague address was mentioned just to justify his jurisdiction to
register the forged and fraudulent document (Nikah Nama); that
material contradiction on the part of the DWs is evinced from
the fact according to DW-3 the Nikah Nama was completed by
his son who never entered the witness box whereas to the rest of
the DWs the same was filled in by DW-3 (Nikah Khawan)
himself; that mala-fide on the part of respondent No.3 is evident
from the fact that though the petitioner is resident of Lahore but
her address in the Nikah Nama was shown as that of Burewala;
that according to father of respondent No.3, he visited the
parties on 28.11.2014 when they were putting up in a rented
house in Valencia Town, Lahore but according to the Rent
Deed the period of tenancy was to start from 01.12.2014, thus,
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it could not be believed that the parties started to live in that
house even prior to start of tenancy period; that contumacious
conduct of respondent No.3 is established from the fact that in
the Tenancy Agreement not only there is cutting on the date
relating to issuance of stamp paper which was used for the said
purpose but also the signing of said document by a witness on
22.11.2014 even prior to issuance of the stamp paper renders
the entire story doubtful; that since respondent No.3 did not rely
upon the Nikah Nama in the list of reliance, thus, he could not
be allowed to produce the same at some subsequent stage; that
upon coming to know about the material contradiction in the
stances taken in the written statement and the suit filed by him
for restitution of conjugal rights, respondent No.3 filed
application for amendment of his suit for restitution of conjugal
rights which was dismissed by the learned Trial Court whose
order remained intact upto this Court; that during proceedings
before the learned Trial Court, the petitioner gave consent that
if it was proved from the location of her cell phone or through
the audio recording, produced by respondent No.3, that she was
available in Burewala on the date of Nikah she would withdraw
her suit but the same was neither accepted by respondent No.3
nor was given any weightage by the courts below; that though
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Nikah Nama is considered to be a public document but when its
authenticity is impugned by any of the parties, it assumes the
status of a private document and that the party claiming benefit
under a document is bound to prove its execution. Relies on
Matloob Hussain v. Mst. Shahida and 2 others (PLD 2006 SC
489), Qalandri Bibi v. Mst. Irum Bibi and others (2019 YLR
86), Sardara and Allah Ditta through Legal Heirs v. Mst.
Bashir Begum and another (PLD 2016 Lahore 587), Mst.
Ruqayya Bibi v. Additional District Judge etc. (PLD 2012
Lahore 408), Mushtaq Ahmed Malik v. Muhammad Sunawar
Choudhary and another (2003 YLR 406) and Hafiz Abdul
Waheed v. Miss Asma Jehangir and another (PLD 1997
Lahore 301).
3. Conversely, learned counsel representing respondent
No.3, while defending the impugned decisions of the courts
below, submits that according to the documents appended with
this petition the statement of the petitioner was recorded on
25.06.2016 through courtesy of the Local Commission, namely,
Mr. Shahzad Amin, Advocate but the said statement having not
been signed by the learned Trial Court could not be used
against the respondent; that concurrent findings of facts
recorded by the courts below cannot be interfered by this Court;
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that learned counsel representing the petitioner has argued the
matter as an appeal and relied upon certain provisions of
Qanoon-e-Shahadat Order, 1984 and CPC despite the fact that
both these enactments are inapplicable in familial matters; that
despite addressing the Court at length, learned counsel
representing the petitioner has not been able to point out any
legal infirmity in the well-reasoned decisions of the courts
below justifying interference by this court in exercise of its
constitutional jurisdiction; that since it was run-away marriage,
routine formalities could not be fulfilled, thus, the points
agitated by the learned counsel representing the petitioner do
not justify upsetting the concurrent findings of the courts
below; that though in the plaint the petitioner levelled allegation
of misrepresentation and fraud but she did not produce any
evidence to prove the same; that PW-1, during evidence,
admitted that the photographs, produced before him, were of his
niece (petitioner) thus solemnization of valid Nikah stood
proved; that mala-fide on the part of the petitioner is evident
from the fact that none of the PWs uttered even a word about
the exact location of the petitioner on the date of Nikah
meaning thereby that she was available with respondent No.3 at
Burewala; that even while appearing before the Judicial
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Magistrate at Tandlianwala, the petitioner did not clarify that
where she was on the date of Nikah; that the Bailiff, deputed in
the habeas corpus petition filed by respondent No.3, raided the
house of the petitioner whereupon he was told by maternal
uncle of the petitioner (PW-1) that she was missing from the
house for so many days which fact also lends support to claim
of respondent No.3 that the petitioner contracted valid marriage
with him; that the petitioner being more than 27 years of age at
the time of Nikah competently exercised her right to contract
marriage according to her own whims; that even in a letter,
addressed by the petitioner to respondent No.3, she clarified
that she did not file the suit out of which present proceedings
have emanated which fact is sufficient to believe that her family
compelled her to disown the contents of Nikah Nama; that
inconsistent attitude on the part of the petitioner is evident from
the fact that on the one hand she has taken the stance that she
was alien to respondent No.3 but on the other in the caption of
the suit has provided his full particulars, including CNIC
Number; that a party, which alleges a fact, is bound to prove the
same and since the petitioner alleged impersonation at the time
of solemnization of Nikah, she was bound to prove that some
other lady was produced in her place at the relevant time; that
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according to report of the Bailiff, deputed in the habeas corpus
petition filed by respondent No.3, maternal uncle of the
petitioner (PW-1) informed that she was missing for last two
weeks and the said report having not been challenged any
further and being a public document, carries presumption of
correctness; that when a witness is found guilty of telling a lie,
his/her entire statement is to be discarded; that though the
petitioner got registered a criminal case against respondent
No.3, wherein PW-1 is witness, but during evidence he (PW-1)
refused to recognize respondent No.3; that the pleas raised by
respondent No.3 before the fora were not specifically rebutted
by PW-1, thus, the same amounted to admission; that PW-2
admitted that at the time of raid by the bailiff, deputed in the
habeas corpus petition filed by respondent No.3 the petitioner
was not available in her house, thus, she was bound to establish
her exact location anywhere else at the relevant time; that PW-2
did not deny execution of Nikah between the parties with the
only difference that it was not Sharai Nikah; that PW-2
admitted that English signatures of the petitioner, available on
Nikah Nama, matched with her signatures available on her
CNIC; that voluntary portion of statement of a witness cannot
be used to decide a matter; that section 18 of the Family Courts
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Act, 1964 only provides for appearance of a person through an
attorney who has been called to appear as a witness but since
the petitioner herself filed suit and pursued it till the stage of
evidence, no persuasive reasons were given by learned Trial
Court while permitting her to appear through attorney; that it is
very ironical that most of the family members of the petitioner
are leading bachelor life, thus, their unhappiness over the
marriage between the parties was natural; that since the last
lines of document available at Page No.99 corresponds to the
opening lines of document available at Page No.101, it stands
established that documents available at Page Nos.100 & 101
were inserted at some subsequent stage; that while showing his
bona fide, respondent No.3 filed application for comparison of
signatures of the petitioner on Nikah Nama with her admitted
signatures but the same was hotly contested by her and
resultantly the same was dismissed by learned Trial Court with
the observation that the same was filed belatedly; that during
proceedings before learned Trial Court, in the first instance the
petitioner side offered for virginity test of the petitioner to
confirm as to whether the marriage between the parties was
consummated or not but when respondent No.3 filed formal
application in that regard, the petitioner opposed it tooth and
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nail just to conceal the reality; that since respondent No.3
succeeded to prove that he had been living with the petitioner as
husband-wife, the execution of tenancy in favour of respondent
No.3 at some subsequent point was immaterial as in routine the
landlords hand over physical possession of the rented premises
to the tenants even before completion of codal formalities; that
it is well-established by now that evidence recorded in one case
cannot be used in another case except for the purposes of
confrontation to a witness; that since respondent No.3 amended
plaint of his suit for restitution of conjugal rights, with
permission of the Court, any deficiency in the un-amended
plaint could not be used against him; that suggestion,
howsoever strong, cannot be used as substitute of a fact; that
inconsistent attitude of the petitioner is apparent from the fact
that in the first instance she alleged that her signatures were
forged by respondent No.3 but subsequently while improving
her case she took the plea that some other lady was produced in
her place at the time of Nikah; that personal appearance of the
petitioner in the witness box case was also necessary for the
reason that certain questions, in particular those relating to the
measurement for stitching of bride suit, could only be answered
by herself and not by the attorney; that love-letter written by the
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petitioner to respondent No.3, with her blood, stands proof of
the fact that they were fully involved with each other which
ultimately resulted into solemnization of run-away marriage as
parents of both sides were not ready for arrange marriage; that
bona fide on the part of respondent No.3 is visible from the fact
that despite animosity with the family of the petitioner, he opted
to attend funeral of mother of the petitioner when he was not
only brutally thrashed but also a criminal case was got
registered against him; that though after issuance of medico
legal report pursuant to the direction of the Magistrate
concerned, a criminal case was registered against family of the
petitioner but the same was cancelled within 09 days of its
registration due to the pressure of the petitioner’s family on
account of their sound financial status; that cursory statement of
the petitioner, made in the complaint filed by her at
Tandlianwala, shows that at the relevant time she was not
available in her parental house rather she was enjoying blissful
marital life with respondent No.3; that sanction of marriage
grant by the Bank in favour of respondent No.3 at the crucial
time also affirms that valid marriage was solemnized between
the parties; that minor discrepancies, highlighted by learned
counsel for the petitioner during the course of arguments,
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cannot be used to interfere in the concurrent findings of facts
recorded by the courts below; that when the petitioner failed to
rebut the assertion of respondent No.3 that on 26.11.2013 he
was on leave from the Bank in connection with his marriage the
plea of respondent No.3 was to be taken as correct; that to
arrive at a just conclusion, respondent No.3 filed an application
for verification of thumb impression of the petitioner on various
documents but the said request was hotly contested by the
petitioner just to avoid unveiling of truth; that though the
petitioner challenged certain orders of learned Trial Court by
filing constitutional petitions (writ petitions) before this court
but none of them was decided on merits, thus, the assertion of
the petitioner that the orders passed by learned Trial Court were
upheld by this Court is against the record; that section 18 ibid is
only attracted when a person so required is Parda Nasheen lady
or is unable to appear before the Court due to any other reason
but in the case in hand when the petitioner opted for run-away
marriage she could not be treated as Parda Nasheen lady; that
appearance of the petitioner in person before different fora prior
to filing of the suit, under discussion, speaks volumes about the
fact that she could not be dubbed as Parda Nasheen lady; that
after brushing aside the objections of the petitioner against
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production of photographs before the learned Trial Court, the
same were rightly relied upon by the courts below; that with a
naked eye, it can be discerned that signatures of the petitioner
on different documents, appended with this petition as well as
those available on Nikah Nama are identical; that since all the
contentions of the petitioner were dealt with by the learned
Appellate Court, one by one, no interference is called for by
this Court in these proceedings; that since the petitioner was 27
years of age at the time of marriage it cannot be believed that
she signed the Nikah Nama due to some pressure, duress or
coercion; that when fraud was not specified in the pleadings,
both the courts below rightly disbelieved the said plea of the
petitioner; that the case-law, referred by learned counsel for the
petitioner, is inapplicable due to peculiar facts and
circumstances of the present case inasmuch as in the case of
Matloob Hussain (Supra) the Apex Court of the country has
held that where the thumb impression of the bride was obtained
after abduction mere signing or thumb-marking the Nikah
Nama was inconsequential and marriage between the parties
could not be held valid. While concluding his arguments,
learned counsel representing respondent No.3 has drawn
attention of the court towards the alleged unethical material
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being telecasted by different Media Houses ruining our social
threadbare with the prayer that this court should take note of
such acts while issuing direction to the relevant authorities to
control such contents which encourage run-away marriages and
disintegration of our family system. In support of his
contentions, learned counsel has relied upon the cases reported
as Notice to police Constable Khizar Hayat son of Hadait Ullah
on account of his false statement (PLD 2019 S.C. 527),
Muhammad Idrees and others v. Muhammad Pervaiz and
others (2010 SCMR 5), Muhammad Sharif v. Additional
District Judge and others (2007 SCMR 49), Allies Book
Corporation through L.Rs. v. Sultan Ahmad and others (2006
SCMR 152), Ghulam Nabi v. Additional District Judge, Jhelum
and 47 others (2001 SCMR 683), Jamia Mahmoodia Masjid
through its Nazim v. Additional Commissioner (Revenue),
Multan Division and 2 others (1995 SCMR 1243), Ameena
Haq v. Rab Nawaz Khan, etc. (PLJ 2018 Lahore 1088),
Muhammad Ejaz and 18 others v. Noor Khan and 3 others
(PLJ 2018 Lahore 11), Zahur Ahmad through L.Rs. and others
v. Pakistan Cargo Services (Pvt.) Limited through Chief
Executive and 4 others (2017 CLC 1032), Wahid Bakhsh and
others v. Ameer Bakhsh and others (2015 CLC 1387), Mst.
W.P. No. 3812 of 2019.
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Gulshan Parveen v. Amar Safeer Khan and 10 others (2014
CLC 397), Dildar Hussain alias Dibar v. Judge Family Court,
Sub-Divisional Courts, Tehsil Chichawatni and another (2014
MLD 1388), Asmatullah v. Allah Nawaz and others (2007
MLD 1329), Mst. Safia v. Mst. Bibi and 14 others (2005 MLD
646), Mst. Kausar Perveen v. Additional District Judge,
Chichawatni, District Sahiwal and another (2000 YLR 577),
Muhammad Riaz v. Mst. Noor-ul-Islam and 2 others (1998
CLC 1036) and Riasat Ali and 9 others v. Rahim Bakhsh and
others (1992 CLC 2193).
4. While exercising his right of rebuttal, learned counsel for
the petitioner contends that availability of CNIC and address of
respondent No.3 with the petitioner was natural as she collected
the same from the of Nikah Nama forged by him, thus said fact
alone cannot be used to believe that valid Nikah was
solemnized between the parties; that non-appearance of the
petitioner in the witness box, in person, was not fatal as she had
the option to appear through attorney in terms of Section 18
ibid; that mala-fide on the part of respondent No.3 is manifest
from the fact that instead of reading evidence in entirety, he has
relied on piecemeal evidence suitable to him; that the alleged
filing of complaint by the petitioner at Tandlianwal and
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recording of her statement on the same day speaks volumes
about mala-fide conduct of respondent No.3; that as according
to respondent No.3 the petitioner was available at Burewala at
the relevant time, he could conveniently manage filing of the
complaint at Burewala and attestation of her affidavit at the said
place but filing of complaint at Tandlianwala and attestation of
the affidavit there speaks volumes about his fallacious claim;
that reliance of respondent No.3 on cordial relations between
the parties as classmates cannot be used as substitute of valid
Nikah Nama for the reason that development of intimacy
between the class fellows in routine is natural; that the Nikah
Khawan, while giving evidence in the year 2017, admitted that
he never seen the petitioner till making of his statement before
the learned Trial Court; that in his affidavit-in-evidence, DW-4
stated that he was only known to respondent No.3, thus, the
alleged signing of Nikah Nama by the petitioner before him is
inconsequential; that though during proceedings before the
learned Trial Court respondent No.3 produced audio script but
when the petitioner asked for its forensic analysis he managed
its removal from the court record; that as a matter of fact all the
formalities were completed by the Nikah Khawan on telephone;
that according to the law laid down in the case of Matloob
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Hussain (Supra) when there is no relative of the bride available
at the time of Nikah her will cannot be considered as free; that
after disowning contents of Nikah Nama by the petitioner, onus
was on respondent No.3 to prove execution of valid Nikah but
he miserably failed to discharge said onus; that in the case of
Mst. Ramzan Bibi v. Additional District Judge and others (1995
CLC 1506) it has been held that when there is nobody
identifying the bride, marriage is invalid. In addition to his oral
submissions in rebuttal, learned counsel for the petitioner has
also filed written arguments in rebuttal with the contentions that
the petitioner only came to know about the preparation of
alleged Nikah by respondent No.3 on 12.12.2014 when the
Bailiff of the Court raided her house pursuant to order passed
by the Court in a habeas corpus petition filed by respondent
No.3; that mala fide on the part of respondent No.3 is evident
from the fact that he used scandalous language in the written
statement just to malign the character of the petitioner; that
since as per section 18 ibid the petitioner had the option either
to appear herself or through an attorney, the objection raised by
learned counsel for respondent No.3 in that regard is illfounded; that sinister efforts on the part of respondent No.3 to
malign the petitioner’s character are evident from the fact that
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during the course of evidence, questions damaging the character
and repute of the petitioner were put to the PWs; that when
DW-4 admitted that there was cutting on the time mentioned in
his affidavit-in- evidence with the further clarification that there
was no mention of specific place where Nikah was performed,
the suit filed by the petitioner was to be decreed as prayed for;
that admission on the part of Nikah Khawan that Nikah Nama
was not filled in by him rather the same was completed by his
son speaks volumes about his mala fide conduct; that admission
on the part of Nikah Khawan that Nikah Nama available in the
UC was not attested by the competent authority rather it bore
only stamp of the competent authority also supports the version
of the petitioner that no valid Nikah was solemnized between
the parties; that DW-5 failed to mention in his statement that
the cursory statement in the complaint filed at Tandlianwala
was made in his presence; that admission on the part of
Muhammad Aslam (DW-2) that he never seen the parties as
husband and wife in Burewala belies the claim of respondent
No.3 that valid marriage was contracted between the parties;
that amendment in the written statement by respondent No.3
after completion of cross-examination on PWs in the suit for
jactitation of marriage stands proof of the fact that the same was
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only an after-thought; that stance of PW-1 that the petitioner
was missing two weeks prior to 12.12.2014, when Bailiff raided
house of the petitioner, cannot be used against her for the
reason that he (PW-1) was not permanent resident of said house
rather he came from outside at the time of raid by the bailiff
thus he was not aware about the whereabouts of the petitioner;
that while responding to a suggestion, Naseer Ahmad (PW-2)
clarified that on 12.12.2014, the petitioner was with her
maternal aunt (ممانی (at Muslim Town, Lahore; that simple
snaps, which can be edited by anybody, cannot be relied upon
to establish a valid Nikah.
5. I gave anxious hearing to the learned counsel for the
parties on multiple dates in addition to going through the
documents, appended with this petition, as well as the case-law,
cited at the bar.
6. A perusal of the plaint shows that the petitioner prayed
for jactitation of marriage on the grounds that nobody was
appointed as Wakeel on behalf of the petitioner-plaintiff; that
the witnesses of the marriage were not related to the petitionerplaintiff; that the petitioner never gave her consent for Nikah;
that signatures and thumb impressions of the petitioner-plaintiff
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on the Nikah Nama were result of fraud and that the petitionerplaintiff never resided with respondent No.3-defendant as wife.
7. According to Para No.250 of Muhammadan Law by D.F.
Mullah marriage (Nikah) means a contract which has for its
object pro-creation and legality of children. Further, according
to Para No.251 of the said Book, every Muhammadan (Muslim)
of sound mind and who has attained puberty may enter into a
contract of marriage. Moreover, essentials of valid marriage
have been enshrined under para No.252 of said Book which for
convenience of reference is reproduced herein below: –
“252. Essentials of a marriage.— It is essential to the
validity of a marriage that there should be a proposal
made by or on behalf of one of the parties to the
marriage, and an acceptance of the proposal or on
behalf of the other, in the presence and hearing of two
male or one male and two female witnesses, who must be
sane and adult Muhammedans. The proposal and
acceptance must both be expressed at one meeting; a
proposal made at one meeting and an acceptance made
at another meeting do not constitute a valid marriage.
Neither writing nor any religious ceremony is essential.
Under section 5, Muslim Family Laws Ordinance, 1961
every marriage solemnized under the Muslim Law shall
be registered.”
According to the afore-quoted Para three ingredients of valid
marriage are proposal, acceptance and presence of two male or
one male and two female witnesses. Insofar as the marriage
between the parties is concerned, suffice it to note that a bare
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perusal of Nikah Nama shows that marriage between the parties
was witnessed by Mirza Arshad Ali (DW-4) and Muhammad
Niaz (DW-6) and the same was performed by Hafiz Samee
Ullah (DW-3). Further, factum of said marriage was
incorporated in record of the Union Council concerned on the
same day and in token thereof Computerized Marriage
Registration Certificate was issued on 27.11.2013. In this
backdrop, respondent No.3 discharged his initial onus of
fulfilling pre-requisites of a valid Nikah Nama.
8. Now taking up the plea of the petitioner that no Wakeel
was appointed on her behalf at the Nikah Nama, I am of the
humble view that since she was more than 27 years of age at the
time of Nikah she was competent enough to enter into Nikah
with anybody according to her own whims even without
intervention of a third person, in particular Wakeel. In this
regard, I stand guided by the judgments reported as Muhammad
Imtiaz and another v. The State (PLD 1981 FSC 308), Zarjuma
alia Jamna Bibi v. Station House Officer, Police Station Saddar
District Bhakkar and 4 others (PLD 2009 LHR 546) and
Muhammad Afzaal v. Sessions Judge, Multan and 3 others
(PLD 2008 Lahore 479). In the case of Muhammad Imtiaz and
another (Supra) while discussing the verses from the Holy
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Qur’an, opinions of Muslim scholars as well as Ahadees, the
Federal Shariat Court has inter-alia observed as under: –
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9. As far as the plea of the petitioner that the persons, who
witnessed the Nikah, were not related to her is concerned,
suffice it to note that since marriage between the parties was
solemnized against wishes of their families it cannot be
believed that some immediate family members of the petitioner
would have participated in the said marriage especially when
there is great difference between the social/financial status of
the parties. Further, as noted above, according to Para No.252
ibid the only requirement of the law is presence of two male or
one male and two female witnesses at the time of offer and
acceptance irrespective of the fact that they are closely related
to the parties or not.
10. Now coming to the contention of the petitioner that her
signatures and thumb impression, on the alleged Nikah Nama,
were product of fraud and misrepresentation, I am of the
humble view that that when a party alleges a specific fact it is
bound to prove the same. Reliance in this regard can be placed
on the cases reported as Allah Bakhsh and others v. Bakhsha
and others (2003 SCMR 1011), Noor Muhammad v. Jamal Din
and others (12000 CLC 305) and The HUB Power Co. v.
WAPDA (1999 CLC 1320). Insofar as the case in hand is
concerned, though the petitioner alleged fraud and
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misrepresentation but she did not specify the same. Had it been
sole allegation of fraud then it was exclusive duty of respondent
No.3 to prove execution of valid Nikah but when the petitioner
also alleged impersonation/misrepresentation she was bound to
prove that who else was produced in her place at the time of
alleged Nikah but having not done so she miserably failed to
prove the allegations levelled in the plaint. The consequences of
levelling vague allegation of fraud, without specification, in the
pleadings has been dealt with by the superior courts in the cases
reported as Khan Muhammad v. Muhammad Din through L.Rs
(2010 SCMR 1351), Taj Muhammad Khan through L.Rs and
another v. Mst. Munawar Jan and 2 others (2009 SCMR 598),
Mst. Sahib Noor v. Haji Ahmad (1988 SCMR 1703) and
Muhammad Haroon v. Mst. Razia Begum and 6 others (2001
CLC 810). If authenticity of the impugned judgments and
decrees is adjudged on the touchstone of the afore-referred
decisions of the Superior Courts, there leaves no ambiguity that
no illegality has been committed by the courts below while
dismissing the suit of the petitioner-plaintiff and dissolving the
marriage between the parties on the basis of Khula.
11. During the course of arguments, learned counsel for the
petitioner took exception against the fact that the petitioner
W.P. No. 3812 of 2019.
–30–
never resided with respondent No.3 in Valencia Town, Lahore
as his wife. A cursory glance over the address of respondent
No.3 mentioned in the plaint shows that the petitioner herself
has provided address of respondent No.3 as that of Valencia
Town, Lahore. According to respondent No.3, Nikah was
performed by DW-3. Though Nikah Khawan (DW-3) was put
to the test of lengthy cross-examination but the petitioner failed
to have anything from his mouth suggesting that he did not
perform Nikah between the parties.
12. Learned counsel for the petitioner argued with
vehemence that time and place of performance of Nikah was
not disclosed by respondent No.3. The said assertion of the
petitioner stands negated from the fact that while replying to a
suggestion, Nikah Khawan (DW-3) clarified that he performed
Nikah at his residence. According to the practice in vogue,
Nikah is either arranged in the house of the bride, mosque or
any wedding hall where the parties choose to celebrate their
wedding, thus, solemnization of Nikah in the house of DW-3
especially in the wake of the fact that it was run-away marriage,
cannot be disbelieved.
13. As far as objection of the petitioner against performance
of Nikah by DW-3 and completion of entries of Nikah Nama by
W.P. No. 3812 of 2019.
–31–
his son, is concerned, suffice it to note that as per section 5 of
the Muslim Family Law Ordinance, 1981, even a person who is
not a Nikah Registrar can facilitate performance of Nikah
between the parties with the condition that he would bring the
factum of Nikah to the Nikah Registrar concerned. Insofar as
the case in hand is concerned, when the petitioner-plaintiff
failed to impeach the conduct of the Nikah Khawan towards
performance of Nikah between the parties, mere completion of
entries of Nikah Nama by son of DW-3 cannot be used to
believe that marriage between the parties did not take place
especially when DW-3 specifically repelled the suggestion of
the petitioner-plaintiff side that the petitioner never visited
Burewala.
14. It is relevant to note over here that Mirza Arshad Ali,
DW-4, during his cross-examination, clarified that he met the
petitioner first time at the time of Nikah which fact also affirms
that the said witness witnessed Nikah between the parties.
Likewise, DW-6, while clarifying certain points regarding
marriage between the parties, stated that on 26.11.2013
respondent No.3 was on leave from Bank. He further stated that
both the parties put their signatures and thumb impressions on
Nikah Nama in his presence, thus, credibility of said witness
W.P. No. 3812 of 2019.
–32–
cannot be doubted merely on the ground that he was not related
to the petitioner especially when marriage between the parties
was result of a love-affair.
15. It is imperative to note that the petitioner, in her affidavit,
sworn at Burewala, attested by Mr. Imran Ali Sheikh Advocate
(DW-5), stated that she contracted marriage with respondent
No.3 on her own volition. The contents of the said affidavit also
stands corroborated from the plaint filed by the petitioner at
Tandlianwala. Had the said complaint not filed by the
petitioner, she could easily move impugning veracity of the said
complaint but admittedly till date no such move was made by
her meaning thereby that the same was prima-facie filed by her
but while succumbing to the pressure exerted by her family
members, she had to file suit for jactitation of marriage out of
which instant petition has emanated.
16. During the course of arguments, learned counsel for the
petitioner has put much emphasis on the fact that contents of
the Tenancy Agreement qua House No.106-P, Valencia Town,
Lahore do not coincide with the stance taken by respondent
No.3 and his witnesses during evidence. In this regard, I am of
the view that when solemnization of a valid marriage between
the parties is established from the statements of DW-3, DW-4
W.P. No. 3812 of 2019.
–33–
& DW-6, the said fact assumes secondary role. Even otherwise,
execution of said tenancy in favour of respondent No.3 lends
support to his case that he managed residence for the petitioner
at Lahore according to her status.
17. A bare perusal of order, dated 12.03.2014, passed by the
learned Judicial Magistrate at Tandlianwala shows that the
petitioner herself appeared before the court and made cursory
statement wherein she stated that she was never abducted by
anybody rather she has solemnized marriage with respondent
No.3 on her own volition and free will and started living with
respondent No.3 as his wife from 26.11.2013. Admittedly, till
date the petitioner has not made any effort for cancellation of
said statement which, being part of the judicial record, carries
presumption of correctness.
18. There is no denying the fact that initially in suit for
restitution of conjugal rights, respondent No.3 contradicted on
the point of solemnization of Nikah and departure but
subsequently, with permission of the Court, he filed amended
plaint rectifying certain errors/omissions. In this backdrop,
contents of un-amended plaint cannot be used to rely upon the
acclaimed contradiction on the part of respondent No.3 while
W.P. No. 3812 of 2019. –34–
filing Written Statement and Suit for Restitution of Conjugal
Rights.
19. It is interesting to note that on the one hand the
petitioner is of the view that somebody else was managed by
respondent No.3 in her place at the time of marriage but on the
other she opposed application of respondent No.3 for
comparison of her signatures and thumb impressions available
on Nikah Nama. If the petitioner was sure about the fact that
she did not sign/thumb marked Nikah Nama, she was supposed
to give consent for their comparison to unveil the truth.
Likewise, during evidence the petitioner side offered for
virginity test of the petitioner but when respondent No.3 moved
formal application in that regard, instead of fulfilling the
undertaking given during the evidence, the petitioner opposed it
tooth and nail which fact also supports plea of respondent No.3
that marriage between the parties was consummated.
20. During the course of arguments, learned counsel for the
petitioner questioned authenticity of Nikah Nama on the ground
that though the petitioner was resident of Lahore but her
address in Nikah Nama was mentioned that of Burewala. The
said stance of the petitioner stands negated from the contents of
Nikah Nama inasmuch as according to entry against column
W.P. No. 3812 of 2019. –35–
No.4 of Nikah Nama, while incorporating permanent address of
the petitioner, her temporary address was also mentioned. It
was incumbent upon the petitioner to establish that on
26.11.2013 she was not available in Burewala rather she was
present somewhere else but despite producing voluminous
documentary evidence she failed to do so.
21. This Court has no sympathy with respondent No.3 but at
the same time it has to decide the matter on the basis of
available evidence. The entire evidence produced by the
petitioner is suggestive of the fact that instead of claiming that
no marriage was solemnized between the parties she took the
plea that no Sharai marriage was solemnized between them.
Marriages can be categorized as valid, invalid, void and
voidable and the lacunas pointed out by learned counsel for the
petitioner cannot be considered sufficient to render marriage
between the parties as void or invalid as the irregularities, being
of trivial nature, cannot be used to negate the contents of Nikah
Nama which being a public document carries presumption of
correctness.
22. It is very ironical to note that respondent No.3, during
evidence as well as before this Court, produced photographs
wherein the petitioner has been shown signing Nikah Nama and
W.P. No. 3812 of 2019. –36–
accompanying respondent No.3 in bridal suiting which is only
possible between husband and wife but the petitioner side
bluntly refused to recognize the petitioner in the said
photographs.
23. The intimacy between the parties, as disclosed in the
plaint, also lends support to the plea of respondent No.3 that the
petitioner contracted marriage with her own but when faced
with rigors of pressure of her family she opted to file suit for
jactitation of marriage.
24. Now coming to request of learned counsel for respondent
No.3 that since such marriages are rampant due to the material
aired on electronic media, the media houses be bound down to
censor vulgar, scandalous material ruining our society, I am of
the view that since Pakistan Electronic Media Regulatory
Authority (PEMRA) has been established by the Federal
Government to cope with such complaints, it would be
advisable for respondent No.3 or his counsel or any other
member of the society to agitate said issue before the said
forum.
25. As per law laid down by the Apex Court of the country in
the case of Farhat Jabeen v. Muhammad Safdar and others
W.P. No. 3812 of 2019. –37–
(2011 SCMR 1073) concurrent findings of facts recorded by
the courts below cannot be upset in Constitutional jurisdiction
until and unless they are proved to be perverse or result of
arbitrariness which is not the position in the case in hand.
26. Now coming to the case-law, cited by learned counsel for
the petitioner, I am of the view that the same is not applicable to
the facts and circumstances of the instant case inasmuch as in
the case of Matloob Hussain (Supra) the Apex Court of the
country has held that when signatures/thumb impressions of
bride were obtained on Nikah Nama, after abduction, the same
did not constitute valid marriage rather the same was to be
dissolved through decree for jactitation of marriage whereas in
the case in hand according to the petitioner herself the alleged
Nikah Nama was result of fraud and misrepresentation without
levelling any allegation of abduction. Similarly, in the case of
Mst. Kausar Parveen (Supra) it was held that when Nikah
Nama has been impugned by any side it cannot be treated as a
public document but the Nikah in the said case between the
parties was disbelieved mainly for the reason that the marginal
witnesses of Nikah Nama were not produced by the husband
whereas in the case in hand respondent No.3 not only produced
marginal witnesses but also the Nikah Khawan concerned. In
W.P. No. 3812 of 2019. –38–
the cases of Qalandari Bibi and Ruqayya Bibi (Supra) it was
held that bride can appear through an authorized agent. Since
this Court is not reversing the findings of the courts below on
the said point, the said judgments are irrelevant. Now coming to
the case of Hafiz Abdul Waheed (Supra) I have observed that in
the said case a Larger Bench of this Court held that free consent
of female is sine-qua-non for a valid marriage. Insofar as the
case in hand is concerned, when signing and thumb marking of
Nikah Nama by the petitioner was supported by her plaint filed
at Tandlianwala, wherein her cursory statement was also
recorded, it cannot be believed that her consent was not free
especially when she was not only well-educated but also was of
27 years of age. In the case of Sardara and Allah Ditta through
Legal Heirs (Supra) this Court held that in case where place,
time and the person before whom the gift was made by the
donor is missing the gift mutation cannot be sanctified whereas
in the case in hand, the stance of the respondent No.3 regarding
valid marriage stands endorsed from the contents of the Nikah
Nama coupled with the statement of the Nikah Khawan and
marginal witnesses in addition to the statement made by the
petitioner herself in her complaint filed at Tandlianwala.
Coming to the case of Mushtaq Ahmed Malik (Supra) this
W.P. No. 3812 of 2019. –39–
Court declared that voluntary portion of statement of a witness
cannot be used to decide a question whereas in the matter in
hand, though most of the witnesses also made voluntary
statements but the courts below came to unanimous conclusion
that valid marriage between the parties was established from the
evidence, conduct and surrounding circumstances. In the case
of Mst. Ramzan Bibi (Supra), the authenticity of the Nikah was
discarded inter-alia for the reasons that witnesses of Nikah
Nama were not produced which is not the position in the case in
hand.
27. For what has been noted above, I see no force in this
petition which is accordingly dismissed with no order as to
costs.
Judge
Announced in Open Court today i.e. 23.01.2020.
Approved for Reporting.
Judge