latest judgment on family case WP 3812/19
Our landmark latest judgment on family case by law society Pakistan Shaukat Rafique Bajwa Advocate Supreme court of Pakistan.
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.
(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 W.P. No. 3812 of 2019.
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, W.P. No. 3812 of 2019.
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 W.P. No. 3812 of 2019.
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; W.P. No. 3812 of 2019.
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 leveled 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 W.P. No. 3812 of 2019.
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 W.P. No. 3812 of 2019.
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 W.P. No. 3812 of 2019.
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 W.P. No. 3812 of 2019.
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 W.P. No. 3812 of 2019.
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, W.P. No. 3812 of 2019.
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 W.P. No. 3812 of 2019.
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 W.P. No. 3812 of 2019.
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.
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 W.P. No. 3812 of 2019.
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 W.P. No. 3812 of 2019.
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 W.P. No. 3812 of 2019.
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 W.P. No. 3812 of 2019.
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 W.P. No. 3812 of 2019.
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 W.P. No. 3812 of 2019.
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 W.P. No. 3812 of 2019.
Qur’an, opinions of Muslim scholars as well as Ahadees, the Federal Shariat Court has inter-alia observed as under: – W.P. No. 3812 of 2019. –23—
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- 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 W.P. No. 3812 of 2019.
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.
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.
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.
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.
& 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.
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.
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.
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.
(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.
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.
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.