Syed SAADAT HUSSAIN SHAH Versus MADIHA BATOOL

SHAKEEL AHMAD, J.--- This constitutional petition has been preferred against the judgment and decree dated 29.4.2017, passed by the learned Additional District Judge-III, D.I.Khan, whereby the judgment and decree dated 12.11.2016 in family Suit No.185/3 of 2014 of Judge Family Court, D.I.Khan was set aside and the suit of the respondent/petitioner for jactitation of marriage was decreed as prayed for with costs.

2. Shortly narrated the facts relevant for disposal of the instant case are that the respondent/plaintiff brought a suit against the petitioner/ defendant seeking therein jactitation of marriage on the ground that no Nikah between the parties had been performed, therefore, the petitioner/defendant has got no right to claim her as his legally wedded wife. It was alleged that the respondent/plaintiff belongs to Shia sect and according to her sect, no Nikah can be performed in the absence of her father or guardian. She also alleged that defendant's father and her father are first cousins inter se and they have cordial relations with each other; that neither the Nikah was performed nor marriage ceremony was held between the parties, in alternative, she sought dissolution of marriage on the basis of Khulla, if she failed to prove her earlier stance.

3. After service of summons, the petitioner/defendant put his appearance, contested the suit by filing his written statement, raising therein factual and legal objections contending therein that respondent/ plaintiff is his legally wedded wife. From the divergent pleadings of the parties, following issues framed:--

1. Whether the plaintiff has got a cause of action?

2. Whether the suit is time barred?

3. Whether Nikah-Nama dated 23.10.2013 is a legal document?

4. Whether a legal relation between the parties as husband and wife exist on the basis of Nikah-Nama dated 23.10.2013?

5. Whether defendant is entitled for a decree of restitution of conjugal rights?

6. Whether plaintiff is entitled for a decree of jactitation of marriage or in case of Nikah for dissolution of marriage on the basis of marriage on the basis of Khulla? Relief?

4. After recording pro and contra evidence, vide judgment and decree dated 12.11.2016, the learned Judge Family Court-II, D.I. Khan decreed the suit and dissolved the marriage on the basis of Khulla against the defendant. Not contented with the same, the respondent/plaintiff filed appeal before learned Additional District Judge-III, D.I. Khan. The learned Additional District Judge-III, D.I. Khan, after affording an opportunity of hearing to both the parties, set aside the judgment and decree dated 29.4.2017, passed by the learned Judge Family Court-II, D.I.Khan, whereby the marriage has been dissolved on the basis of Khulla and a decree for jactitation of marriage was passed as prayed for with costs, hence, this petition.

5. The learned counsel for the petitioner argued that he has proved through oral as well as documentary evidence that a valid Nikah was performed between the parties, in such circumstances, at the most the marriage should have been dissolved on the basis of Khulla which was rightly decreed by the learned Judge Family Court, D.I.Khan. He next argued that the judgment and decree of the learned appeal court, whereby the judgment and decree of the Judge Family Court-II, D.I.Khan was set aside and a decree for jactitation of marriage was passed is illegal without lawful authority and in conflict with the evidence on record.

6. Conversely, the learned counsel for the respondent vociferously defended the impugned judgment and decree passed by the learned appeal court while arguing that the petitioner has failed to prove that Nikah was recited between the parties. He lastly, argued that the alleged Nikah-Nama has been proved to be forged and fictitious, therefore, the learned appeal court was justified in passing a decree for jactitation of marriage.

7. I have heard the arguments advanced by the learned counsel for the parties and perused the relevant record.

8. It will be advantageous to reproduce the contents of paras Nos. 1, 6 & 7 the plaint, which read as under:--

9. In the present case while going the pleading of the parties and the entire evidence, it is noticeable that in paras Nos. 6 and 7 of the plaint, the respondent/plaintiff has specifically stated that she cannot live with the petitioner/defendant. She further asserted that now the parties cannot live as husband and wife within the limits prescribed by Allah The Almighty, therefore, dissolution of marriage on the basis of Khulla is sought. If Nikah was not performed between the parties, then why she had sought dissolution of marriage on the basis of Khulla stating in the plaint that now the parties cannot live as husband and wife within the limits prescribed by Allah The Almighty.

10. Coming to the evidence produced by the parties in order to prove the execution of Nikah, the petitioner/defendant produced as many as 08 witnesses. Mashkoor Hussain DW-2, Secretary Union Council who produced the Nikah-Nama as Ex.DW-2/1. Ibad Ali, Nikah Khuwan DW-1, Imran Abbas DW-3 (marginal witness of affidavit Ex:DW-3/1, Saadat Hussain/defendant DW-4, Malik Ishrat Abbas DW-5 (marginal witness of affidavit Ex:DW-3/1), Bashir Hussain DW-6 (marginal witness of Nikah-Nama Ex:DW-2/1). Syed Farhat Abbas Kazimi DW-7 (witness of Nikah ceremony) and Hafiz Nazir Hussain DW-8 (writer of Fatwa Ex.DW-8/1). The Nikah Nama was registered with NADRA, computerized Nikah form was exhibited as Ex:DW-2/3 and marriage registration certificate is Ex:DW-2/4.The respondent was examined as PW-1, Syed Saleem Akhtar PW-2 (relative of the father of plaintiff).

11. No doubt, neither the father of the respondent/plaintiff participated in the Nikah/marriage ceremony of the parties nor it was held openly, as alleged by the petitioner/defendant it was not arranged marriage rather it was love marriage, therefore, Nikah was solemnized secretly. The learned appeal court held that due to non-participation of father and other relatives of the respondent/plaintiff related to her within the prohibited degree it casts doubt on execution of Nikah between the parties, but as discussed above, that it was not a arranged marriage rather it was held without the wishes of the parents of the respondent/ plaintiff, therefore, their participation in the marriage ceremony was out of question, particularly, when the ceremony of Nikah was held secretly. Hafiz Nazir Hussain, Madarris Jaam-e-Arabia Jamiat-ul-Najaf, Kotli Imam Hussain, D.I.Khan appeared as DW-8, who is the writer of Fatwa, Ex:Dw-8/1 belongs to Shia sect, he deposed that an adult and sane muslim girl is competent to contract marriage of her own sweet will, under the Shariah Muhammadi.

12. After going through the record, I reach to the conclusion that the learned appeal court has not touched these aspects of the case while passing the impugned judgment. However the appeal court is directed to keep in mind the following points/issues while deciding the appeal beside merit:-- i. Whether it was arranged marriage or otherwise, if otherwise whether it could be held secretly or openly? ii. Whether an adult and sane girl of Shia community can contract marriage in the absence of her guardian/parents, if not, its effect? iii. Whether the respondent/plaintiff has taken self-contradictory pleas in her pleading, if so, its effect?

Although I was minded to decide the case on merits instead of pulling the parties to another round of litigations, but, when the record was perused minutely, I deem it appropriate to accept the appeal, set aside the impugned judgment and decree dated 29.4.2017 of learned appeal court to decide the matter afresh in the light of observations made above. The learned appeal court is directed to decide the appeal within a period of one month from the date of receipt of this notice.

MQ/178/P Case remanded.