ZOHRAN BIBI Versus MANZOOR AHMAD

This second appeal in a matrimonial matter arises out of a suit filed by Manzoor Ahmad respondent for declaration to the effect that he had divorced Mst. Zohra Bibi appellant on 30-8-67 and that the divorce had become effective since 30-11-67. He had also sought an injunction against two Union Committees to the effect that they should issue talaq certificates in his favour. The suit was dismissed on 10-7-69. Manzoor Ahmed filed an appeal which was allowed by the learned Additional District Judge, Lyallpur, on 3-6-70, therefore this second appeal by Mst. Zohra Bibi.

2. On pleadings of the parties, following issues were framed:-

"(1) Has Civil Court no jurisdiction to try this suit?

(2) Is this suit barred by the doctrine of res judicata?

(3) Whether the plaintiff had divorced defendant No. 1. If so, on what date?

(4) Is the plaintiff entitled to the issuance of permanent injunction prayed for?

(5) Relief."

On Issue No. 1, which relates to the jurisdiction of civil Court, it was held that it is the function of a civil Court to go into the question whether a public functionary like a Union Committee had acted without authority and without jurisdiction, therefore, it had the jurisdiction to try the suit. There is no discussion on this question in the judgment of the lower appellate Court, presumably, because the suit having been dismissed the present appel lant did not file any appeal.

3. Learned counsel for the appellant has, relying on Mst. Amina Begun v. Ghulam Nabi and 2 others P L D 1974 Lah. 78 and Tajoo v. Mst. Sattaran P L D 1974 Lah, 105, contended that the suit filed by the respondent was essentially one for jactitation of marriage and because by an amendment in the Family Courts Act, 1964 brought about in January, 1969 the suit for jactitation of marriage was exclusively triable by a Family Court, therefore, the civil Court had no jurisdiction. That being so, the decree passed by the learned lower Appellate Court in favour of the respondent without noticing the defect of jurisdiction, of the trial Court is illegal. Prima facie, the argument had force, therefore, the learned counsel for the respondent was called upon to state his case in this behalf. He, relying on the prayer in the plaint, contended that the suit was only to the effect that the divorce had become effective since 30-11-67 and further that the Union Committees were required to issue the Certificate of Talaq. Thus, according to him, there was no demand in the suit with regard to jactitation of marriage, namely, that the appellant-defendant should not claim herself to be the plaintiff/respondent's wife. On the other hand, according to him, the factum of marriage was not denied. That being so, the civil Court had jurisdiction in the matter. In the alternative, he contended that the issue of jurisdiction having been decided against the appellant, and she not having raised it earlier, cannot now be gone into in second appeal.

4. It needs to be noted that the learned counsel did not dispute the contention of the learned counsel for the appellant that if the Family Court had the exclusive jurisdiction to try the suit then the procedures laid down in the Family Courts Act for such a trial not having been gone through. the proceedings would be rendered nullified because of great divergence of the procedure before the Civil and Family Courts, particularly in the matter of compulsory efforts on the part of the trial Judge at conciliation. It also needs to be mentioned that in this behalf learned counsel for the appellant relied on the report of the Commission on Marriage and Family Laws, 1956 wherein it was opined that:-

"The first object of these Courts should be to effect conciliation between the parties. The Quranic injunction of referring the dispute between the spouses to two representatives of the parties concerned may be tried out by the Courts. The presiding officers may take active interest in the negotiations set on foot for the purpose. It may be necessary for these officers to meet the parties with their relatives either in Court or outside Court, informally, to explore possibilities of com promise.

If all efforts at a compromise between the parties fail and the referees appointed under the Quranic injunction, so recommend, the Court should be authorised to effect a dissolution of marriage between the husband and the wife, by a decree."

I have also in Mst. Fateh v. Bakhsha (R. S. A. No. 1021 of 1969, decided on 21-2-1974) held as follows:

"After having held that the suit was for `Dissolution of marriage' and was to be tried in accordance with the provisions of the Family Courts Act, 1964, it remains to be seen whether there is any force in the argument of the learned counsel for the respondent that there was no difference in the procedure in the two forums. Apart from matters of detail relating to evidence and production thereof, a conscious attempt by the Presiding Judge at reconciliation between the parties at specified stages during the trial is mandatory, rather, it is the essence of the whole new procedure for trial of such matrimonial matters. The argument of the learned counsel for the respondent that, generally, even the Civil Judges do make attempt at reconciliation cannot be accepted; because, firstly, there is no evidence to show that, in fact, in this case real attempt at proper stages was made and, secondly, the parties were not conscious of such procedures and opportunities when they prosecuted their respective cases. The legal course in this case for the learned trial Judge (even if he himself was the Family Judge) was to transfer the case/file to his jurisdiction under the Family Courts Act with notice to the parties and then to proceed with the trial in accordance with the provisions of that Act. After the conclusion of the trial, the provisions contained in section 21 of the Family Courts Act were also to be complied with. As neither the parties nor the learned trial Court were conscious about the law applicable in this matter, therefore, it cannot be held that a proper trial under the Family Court Act has taken place. The decree passed by the learned Civil Judge also does not show that it was passed under the Family Courts Act. The same, therefore, is without jurisdiction. That being so, it is liable to be set aside."

In this case if it is decided that it was a suit for jactitation of marriage then, in the light of the above discussion, it has to be held that the Civil Court had no jurisdiction to try the suit. The reasoning that the civil Court and Family Court are sometimes presided over by the same person(s), therefore, it amounts only to an irregularity, with respect, it is observed, would not apply to the law (Family Courts Act) under consideration. It prescribes a, special procedure for trial of cases which is one of its major objects. Even in the preamble stress has been laid on expeditious settlement and disposal of disputes relating to marriage and family affairs. A trial and proceedings not held in accordance with the procedure laid down in the Act would be rendered not merely irregular but illegal and void.

5. It is not at all claimed that in this case the trial was held by the learned Civil Judge in accordance with the law contained in the Family Courts Act and it is not a case merely of misdescription of the Court. The result would be that the trial would be deemed to have been held by a civil Court in accordance with the procedure otherwise than laid down in the Family Courts Act; and while in the same hierarchy of civil Court the first and second appeals would be competent under the Civil Procedure Code, it remains the duty of the appellate Courts to correct the error of jurisdiction by exercise of appellate authority (in this hierarchy of civil Court) with con sequential direction that the plaint be returned for presentation before proper Court. The facts in the case reported as Muhammad Ramzan v. Mst. Khalida Perveen P L D 1971 Lah. 813 were different. The finding in that case it appears was that the civil Court had constituted itself into a Family Court and thereafter, presum mably, tried the suit in accordance with the procedures of a Family Court and it was for that reason that it was also held therein that the provisions contain ed in section 100, C. P. C., would not be applicable and a second appeal in the High Court would not be competent. The facts and reasoning based thereon in that case, therefore, are distinguishable. In the present case, the position is that the civil Court did not constitute itself into a Family Court,' the procedures including these relating to conciliation provided in the Family Courts Act were not gone through, the parties and the Court were not at all. conscious of this aspect of the matter and the decree was not drawn as that of a Family Court. Therefore, it has to be held that the trial of this matter by a civil Court as such was illegal and without jurisdiction. The first appellate Court when exercising appellate jurisdiction under section 96 of the; C. P. C., did not notice this aspect of the matter, and committed a grave error of failure to exercise corrective appellate jurisdiction. That being so, both the judgments, namely, that of the trial Court as also of the first appellate Court would have to be set aside subject, of course, to the ensuing discussion on the other pleas raised by the learned counsel for the respondent.

6. Coming to the merits of the contention raised in this case, learned counsel for the respondent could not deny that in the contents of the plaint, it is asserted as one of the basis of the suit that the appellant having been divorced by the respondent through an effective talaq, continues to harass him by claiming herself to be his wife and seeking remedies against him accordingly. It also is an admitted position that the respondent claimed in the plaint that on account of talaq the appellant is no more his wife but despite that she and her co-defendants were denying these facts, therefore, cause of action had arisen. In these circumstances, learned counsel had to admit that in pith and substance the suit was for a declaration that by opera tion of law the talaq having become effective, the appellant could not claim to be the respondent's wife. That being the position, his case would b covered by those of Mst. Amina Begum and Tajoo relied upon by the learned counsel for the appellant. If that is so, the Civil Court would have no jurisdiction in the matter because this suit for jactitation of marriage would be exclusively triable by a Family Court. I hold accordingly; notwithstanding 1 the fact that no cross-objection was filed before the first appellate Court, as it being a question of jurisdiction can be raised in this appeal and, in any case, under Order XLI, rule 33, the first appellate Court could, despite absence of any cross-objection, have decided the point of jurisdiction in favour of the present appellant (respondent before that learned Court).

7. In the light of the above discussion, this appeal is allowed. The judgments and decrees of both the learned Courts below are set aside and it is directed that the plaint be returned to the plaintiff/respondent for presenta tion to the proper Court. There shall be no order as to costs.

S. A. H. Appeal allowed.