NASIR AHMAD SHAIKH Versus MRS. NAHID A. SHAIKH
ORDER
By this petition filed under Article 199 of the Constitution of Pakistan the petitioner has challenged the judgment and decree passed on 15th March, 1982 in Family Suit No. 996 of 1979 by the respondent No. 3 and those passed by the respondent No. 2 in Family Appeal No. 102 of 1985 on 11‑1‑1986 granting maintenance to the respondent No. 1 pa‑~able by the petitioner.
The facts briefly stated leading to the filing of this petition are ,as follows:‑‑
1. (i) That the petitioner and the respondent No. 1 were married on 5‑2‑1958 as per Nikahnama produced as Annexure 'A' to the petition in accordance with Sunni Hanafi Law. In the said Nikahnama the petitioner/ husband has been shown as belonging to Hanafi sect of Sunni Muslims. After about lapse of a period of almost 20 years of married life the petitioner, who according to respondent No. 1 was maintained and supported by her during the completion of his education and in obtaining Certificate of Competency as Master Mariner on 29th March, 1972 as a result of which he started earning substantial salary, on 22‑2‑1979 married another lady at Islamabad according to Sunni Hanafi Law (Annexure 'D' to the counter‑affidavit) but without her consent.
(ii) Relations between the parties thus became strained, and the respondent No. 1 filed Family Suit No.996 of 1979 in the Court of XXIX Civil Judge/Family Judge Karachi for recovery of maintenance.
The petitioner/ husband filed his written statement through his attorney in which the claim of the respondent No. 1 was contested by him. The statement made in the plaint that the parties were married according to Sunni Hanafi Law was admitted. Jurisdiction of the said family Court, however, was challenged on the ground that the provisions of Muslim Family Laws Ordinance are not applicable to the petitioner as he is a national of a foreign country, i.e. United Kingdom.
The learned trial Court after the pre‑trial failed, as the petitioner had remained absent, on the pleadings of the parties framed the following issues:‑‑
"(1) Whether suit is not maintainable?
(2) Whether plaintiff can recover amount spent on education of the defendant through this suit?
(3) Whether the defendant has failed and neglected to maintain the plaintiff and is liable to provide separate maintenance to her, if so at what rate and since when?
(4) What should the decree be?
(iii) The respondent No. 1/wife examined herself and also produced five more witnesses in support of her case.
No evidence was led by the petitioner who had remained absent.
(1V) On the evidence on record and after hearing the counsel for the respondent No. 1, the learned Family Judge answered issues Nos. 1 and 2 in the negative. On appreciation of the evidence on record the learned Family Judge under Issue No. 3 reached the following conclusion:‑‑
"The plaintiff's as to her statement that the parties were married the defendant was passed by getting Rs.150 p.m. in 1958 as a cadet and gradually he attained the position of a captain and is earning about Rs.25,000. Although plaintiff has no documentary proof of the defendant's salary at present but it has not been denied that he is not a captain on a ship therefore, it will over and about of Rs.20,000 on a foreign ship. The defendant is maintaining his second wife and the reasonable amount of maintenance for the plaintiff would be Rs.2,500 p.m. The defendant is working on ship and his plea that, he is jobless for the last 6‑7 months as per his written statement is not to be believed as after filing of the written statement he has not appeased in the Court and applications on his behalf were moved that he is out of station in respect of his job. The plaintiff has demanded Rs.10,000 p.m. which is exorbitant keeping in view that the defendant has two wives and the plaintiff has no issue from him. It has been proved beyond doubt that defendant has not maintained her from July 1978 till present date. She is, therefore, entitled for the maintenance from July 1978 at the rate of Rs.2,500 p.m. till the marriage between the parties is dissolved or they join each other. Issue is answer in affirmative."
The learned Family Judge under Issue No. 4 held:‑‑
"The plaintiff has established her case in view of my findings on issues Nos. 1 and 3 she is entitled to a sum of Rs.2,500 p.m. from July 1978 till the dissolution of marriage takes place between the parties or they join each other. Consequently the suit of the plaintiff is decreed with costs."
2. No appeal was filed against the above judgment and decree which was passed on 15‑3‑1982.
3.(i) The respondent No. 3/wife on 27‑4‑1982 filed Execution Application No. 14/83 in the Court of VIIth Civil Judge, Karachi (East). Notice of this application was issued and served upon the petitioner who made appearance before the Execution Court and raised objections. These objections were dismissed on 27th October, 1984 and the Execution Court directed the Judgment Debtor/the petitioner to pay the decretal amount within one month of the passing of the said order, failing which the decretal amount was directed to be recovered as land revenue arrears in accordance with section 13(3) of the West Pakistan Family Courts Act, 1964.
(ii) Against the order parsed in execution application referred to above the petitioner/husband filed Family Appeal No. 190 of 1984 in the Court of District Judge, Karachi.
The said Appellate Court, however, dismissed the said appeal by order passed on 20‑1‑1985.
(iii) The above orders were not further challenged and thus the same also attained finality.
4.(i) It appears that thereafter the petitioner/ husband filed an application in the Family Suit No. 996/79 for setting aside the judgment passed on 15th March, 1982. This application, however, was dismissed by the said learned Judge by order passes > on 1‑12‑1985 on the conclusion reached that no case was made out by the petitioner/ husband for setting aside the decree/judgment obtained by the respondent No. 1‑wife/the decree holder in the suit.
(ii) The petitioner against the above o:der filed appeal (Family Appeal No. 102 of 1985). The appeal was dismissed by the learned land Additional District Judge, Karachi (East), on 11‑1‑1986 with the observations inter alia that the decree passed against the appellant (petitioner) was not an ex parte decree as he had contested the above referred suit and that the decree against him granting maintenance to the respondent No. 1 had not been obtained by any fraud or misrepresentation.
The order passed by the trial Court on 1‑12‑‑1985 dismissing the application for setting aside judgment was thus upheld.
5. The petitioner has now filed this petition under Article 199 of the Constitution of Pakistan, 1973 wherein he has prayed that the judgment and decree, dated 15‑3‑1982 passed by the respondent No. 3/the Civil Judge Court No. VII, Karachi (East), confirmed by the respondent No. 2/Additional District Judge Karachi (East), on 11‑1‑1986 be declared as null, void and without jurisdiction.
6. (i) The learned Advocate for the petitioner argued at the hearing in support of the petition that his client is an Ahmadi by faith and thus he is not a Muslim for the purposes of the Constitution or law in view of the amendment incorporated by the Constitution (Second Amendment) Act No. XLIX of 1974. The learned counsel accordingly submitted that the marriage of the respondent No. 1 a Muslim, with petitioner a non‑Muslim, was void and the Family Court had no jurisdiction to entertain the suit filed by the respondent No. 1 for grant of maintenance under West Pakistan Family Courts Act, 1964.
(ii) I am afraid this plea is not open to be take by the petitioner in these proceedings for the reason that no such plea was taken in the written statement filed by him in Family Suit No. 499 of 1979. On the contrary I find that in para 1 of the plaint in the aforementioned suit the respondent No. 1 had expressly pleaded:‑‑
6. (i.) The learned Advocate for the petitioner argued at the hearing in support of the petition that his client is an Ahmadi by faith and thus he is not a Muslim for the purposes of the Constitution or law in view of the amendment incorporated by the Constitution (Second Amendment) Act No. XLIX of 1974. The learned counsel accordingly submitted that the marriage of the respondent No. 1 a Muslim, with petitioner a non‑Muslim, was void and the Family Court had no jurisdiction to entertain the suit filed by the respondent No. 1 for grant of maintenance under West Pakistan Family Courts Act, 1964.
(ii) I am afraid this plea is not open to be takes( by the petitioner in these proceedings for the reason that no such plea was taken in the written statement filed by him in Family Suit No. 499 of 1979. On the contrary I find that in pare 1 of the plaint in the aforementioned suit the respondent No. 1 had expressly pleaded:‑‑
"That the plaintiff was married to the defendant on 5‑2‑1958 at Karachi according to Muslim Hanfi Law. A copy of the Nikahnama is sled herewith and marked as 'A'."
In his written statement filed by the defendant /petitioner replied to the above plea as follows:‑‑
" The contents of pare 1 are not denied and is submitted that the marriage had taken place under Sunni Muslim Law .
(iii) A photo copy of the Nikahnama has also been produced in this Court which shows that the marriage ceremony was performed by a Kazi of Sunni faith and in the said Nikahnama which was also signed by the petitioner he himself admitted that he is a "Hanafi" . The relevant entry is reproduced below:‑‑
7. 1 also find on the record a photo copy of Iqrarnama, dated 10th Rajab 1377 Hujra (corresponding 5‑2‑1958) executed by the petitioner in the presence of witnesses and in which also he has described himself as a Haeafi (Sunn i Muslim) by faith. a issues named iii the suit on which the parties went to trial have already been) reproduced above which would show that the petitioner/the defendant B had not pressed any issue on the plea now taken before this Court that the suit was not maintainable against him under West Pakistan Family Courts Act, 1964 as he is an Ahmadi not governed by the West Pakistan Family Courts Act, 1964 or that he is not liable to maintain the respondent No. 1 a Muslim lady for the reason that his marriage with her, therefore, was not valid. To the view thus taken I find support from the case of Chaudhry Brothers Limited v. Jahranwala Central Co‑operative Bank Limited 1968 S C M R 804 wherein the Honourable Supreme Court observed:‑‑
"No evidence should have been allowed to be adduced on facts which had not been raised in the pleadings or incorporated in the issues."
8. The attempt on the part of the petitioner to introduce a new plea at a belated stage much after the suit had been decreed against him granting maintenance to the respondent No. 1 according to Muslim Law is obviously mala fide in order to defeat the decree passed by a competent Court of jurisdiction.
Besides being of the opinion that such a plea is not open to the petitioner being against the pleadings in the suit and the material on the record, it may be observed that it is now well settled law that a new point cannot be allowed to be raised for the first time' before the High Court while invoking its constitutional jurisdiction.
9. For the aforementioned reasons this petition, being without any merit and calling for no interference by this Court in exercise of its constitutional jurisdiction, is dismissed in limine.
The above are the reasons for the short order passed on 23‑2‑1986.
A . A Petition dismissed.