PLJ 2013 SC (AJ&K) 58
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J.
RABIA AKHTER and another--Appellants
versus
MUHAMMAD AYUB and 2 others--Respondents
Civil Appeal No. 83 of 2010, decided on 27.6.2012.
(On appeal from the judgment and decree of the Shariat Court
Photo stat Copies--
----Not admissible in evidence--Oath Commissioner who attested photo stat copies did not appear in Court as a witness--Custody of original document--Original record lies in England and copies were attested by oath commissioner at AJK--Validity--Alleged documents were photostat copies, which cannot be relied upon in evidence--As regard document which was original that was not helpful to case of appellant--Moreover, Qazi was not produced as a witness in trial Court--Document could not be relied upon for proving the case. [P. 63] A & B
AJ&K Family Courts Procedure Rules, 1998--
----R. 4--Suit for jactitation of marriage--Question of jurisdiction--Family Court in whose jurisdiction cause of action wholly or in part arises or where parties reside together shall have jurisdiction to try the suit. [P. 63] C
AJ&K Family Courts Procedure Rules, 1998--
----Rr. 3(1) & 7(1)--Institution of plaint--Suit for jactitation of marriage was filed without any authority--Validity--Plaint was signed and verified by counsel for petitioner and not by plaintiff himself as such it was not competently filed, thus it merits dismissal--Plaint u/S. 7(1) shall be in writing, signed and verified by plaintiff and shall be presented Court having jurisdiction u/Rule 4 by plaintiff or through a counsel--Where plaintiff was a female, suit might be filed by her agent. [P. 63, 64] D, E & F
AJ&K Family Court Procedure Rules, 1998--
----R. 3(1)--No provisions that non-compliance of such rule will result into rejection of plaint or any other penalty--Validity--It is a celebrated principle of interpretation of statute that in absence of any penal provision the operation of rules shall be directory in nature and not mandatory. [P. , 64] G
Plaint--
----Non-signing of plaint--Effect of--Non signing of plaint and verification by plaintiff himself will not affect the filing of suit--Suit was competently filed in Family Court. [P. 64] H
AJ&K Family Courts Act, 1993--
----S. 5--Jactitation of marriage--Question of jurisdiction--Whether suit for jactitation of marriage can be filed by a husband or not or it can only be filed by woman/wife was an important question which requires resolution--Validity--Matter of jactitation of marriage was not initially part of Schedule--It was inserted an amendment brought in Act--Family Court has got exclusive jurisdiction for deciding question of jactitation of marriage--A suit can be filed by a person other than spouses involved in jactitation of marriage--And so can a suit be filed by spouses, against third party with a view to prevent them from denying their marriage--Woman was not his wife or a wife might claim that she was not wife of defendant and would refrain from claiming as such--A woman was his lawfully wedded wife and another person, who claims to be her husband or woman claims to be wife of another person, plaintiff might request for issuance of prohibitory decree--Family Court has exclusive jurisdiction to try a suit for jactitation of marriage. [Pp. 65, 66 & 69] I, J & K
Ch. Muhammad Siddique, Advocate for Appellants.
Raja Saadat Ali Kayani, Advocate for Respondents.
Date of hearing: 28.3.2012.
Judgment
Muhammad Azam Khan, C.J.--This appeal by leave of the Court arises out of the judgment of the Shariat Court 22nd February, 2010 , wherein the appeal filed by the appellants herein has been dismissed.
2. Necessary facts for the disposal of instant appeal are that the plaintiff, Respondent No. 1 herein, filed a suit for jactitation of marriage on 24th August. 2006, in the Court of Civil Judge Sehnsa, who was vested with the powers of Judge Family Court, alleging therein that the Nikah of Defendant/Appellant No. 1 with Defendant/Appellant No. 2 is fake, forged, against the law, based on fraud and against the facts which is liable to be cancelled Defendant No. 1, on the basis of Nikah solemnised 12th June, 2000, is lawfully wedded wife of the plaintiff. He has not divorced her. He also sought a perpetual injunction against Defendants No. 2 to refrain him from claiming Defendant No. 1 as his wife. The defendants were summoned and in the written statement they raised a preliminary objection that the suit is filed on the basis of a forged power-of-attorney. The plaintiff has no cause of action to file a suit. The plaintiff is residing in England 21st February, 2006 . Alter the expiry of period of Iddat, Defendant No. 1 has contracted marriage with Defendant No. 2 on 26th June, 2006 . The plaintiff has himself got prepared the divorce-deed. After necessary proceedings, the trial Court decreed the suit on 15th April, 2007 . Dissatisfied from the judgment and decree of the trial Court, the defendants, appellants herein, filed an appeal in the Shariat Court Shariat Court 22nd February, 2010 .
3. The learned counsel for the appellants argued that the judgment of the Shariat Court Lahore Lahore 24th August, 2006 , while the power-of-attorney in favour of agent was executed on 31st October, 2006 . The attorney had no authority to file the suit. The learned counsel further argued that under Rule 4 of the AJ&K Family Courts Procedure Rules, 1998, the plaint shall be signed and verified by the plaintiff himself. The plaint is signed and verified by the counsel for the plaintiff/respondent, therefore, the suit merits dismissal.
4. While controverting the arguments. Raja Saadat Ali Kayani, the learned counsel for Respondent No. 1, argued that the judgment of the Shariat Court England
5. We have heard the learned counsel for the parties and perused the record. Through the suit filed on 24th August, 2006 the Plaintiff/Respondent No. 1 claimed that Defendant/Appellant No. 1 herein is his lawfully wedded wife. He has not divorced her. The Nikah of Defendant No. 1 with Defendant No. 2 is fake, forged, against the law and Shariah, based on fraud, against the facts and liable to be cancelled. He requested for jactitation of marriage. He also sought perpetual injunction against Defendant No. 2 that he shall refrain from claiming Defendant No. 1 as his wife. The defendants/appellants herein relied upon the documents Ex.DA, DB, DC, DD, DF and DG. All these documents except DD and DF are photostat copies of certain documents which are claimed to be prepared in England 21st February, 2006 was further attested by Tufail Hussain Bukhari, advocate, Sehnsa, on7th March, 2007 . If Muhammad Ayub has divorced his wife, Rabia Akhter, the original document must have been in her custody, but she has not produced the same. Instead, she has produced photostat copy which is attested on the same day, i.e. 21st February, 2006 when it was prepared. There is another document on record, a certification issued by Muslim Law Council of England issued on 18th January, 2007 , five months after the institution of suit. The third document Ex.DC is purported to be a letter issued by Qazi Abdul Aziz Chishti on 28th August, 2000 that Muhammad Ayub has divorced his wife, Rabia Akhter on 21st February, 2006 . There is also a note on Ex.DC that the father's name of Muhammad Ayub has inadvertently been written as Risalat Khan. It is not mentioned by said Qazi that the alleged Talaq-Nama was written by him or someone-else. A perusal of two documents shows that the writing of both the documents is different. It is not in one hand. If the letter dated 28th August, 2006 is in the hand of Qazi Abdul Aziz then alleged Talaq-Nama dated 21st February, 2006 is not written in his hand. It cannot be relied upon. Ex.DD, a notice of some Bank in Yorkshire , for payment of charges is original document, while the other notice is a photostat copy. It is not clear that for what purpose the defendants brought on record these two documents. There is a birth certificate of a child, Hamass Khan, born to Rabia Akhter, wherein his father's name is entered as Muhammad Ayub. There is no dispute in respect of paternity of child. There is a photostat copy of alleged `Nikah-nama' of Appellant No. 1 and Appellant No. 2. This Photostat copy is also attested by Tufail Hussain Bukhari, Advocate, Sehnsa, Syed Tufail Hussain Bukhari, the Oath Commissioner who attested the documents, according to his stamp affixed on the documents, practices in Tehsil Court Sehnsa. He attested the documents as "attested true copy". The document can only be attested in such a wording by the authority which is in custody of the original document. The Oath Commissioner at Sehnsa was not competent to attest such documents, the original of which were in England
6. We have no quarrel with the rule of law laid down in the authorities titled Kabool Khan vs. Shamoon and others [PLJ 2002 Lahore 425], Muhammad Sarwar and 3 others vs. Jahangir Ahmad and 5 others [PLJ 2002 Lahore 1039] and Hafiz Tasadaq Hussain vs. Lal Khatoon and others [PLD 2011 SC 296] wherein it is held that if the documents are duly tendered in evidence without any objection, thereafter the objection on admissibility of such documents cannot be raised at a later stage. But in the instant case the fact remains that the alleged documents are photostat copies, which cannot be relied upon in evidence. As regards the other document which is original, that is not helpful to the case of the appellants. The certification issued by Qazi Abdul Aziz Chishti on 28th August, 2006 without referring to any record to the effect that Muhammad Ayub s/o Riasat Khan came to him on 21st February, 2006 and has divorced his wife Rabia Akhter and the name of father of Muhammad Ayub was inadvertently written as Risalat Khan in Talaq-Nama executed on 21st February, 2006, cannot be relied upon. The language of document itself casts serious doubt on it. Moreover, the said Qazi was not produced as a witness in the trial Court. This document cannot be relied upon for proving the case.
7. So far as the question of jurisdiction is concerned, under Rule 4 of the AJ&K Family Courts Procedure Rules, 1998, the Family Court in whose jurisdiction the cause of action wholly or in part arises or where the parties reside together shall have jurisdiction to try the suit. There is also a proviso to rule that in suits for dissolution of marriage or dower, the Court in local limits of which the wife ordinarily resides shall have jurisdiction. The instant suit is a suit for jactitation of marriage and according to the parties, defendant/Appellant No. 1, resides in the territorial limits of Family Court Sehnsa, therefore, the Family Court Sehnsa had jurisdiction to entertain the suit.
8. An important legal question which needs resolution is that the claim of the appellants is that the suit was filed without any authority. The suit was filed on 24th August, 2006 and the power-of-attorney was executed on 31st October, 2006 , two months after the filing of suit. A perusal of record reveals that the suit was filed on 24th August, 2006 and the plaintiff himself signed the power-of-attorney (wakalat-nama) in favour of Sajid Nawaz and Shokat Ali, Advocates. The power-of-attorney in favour of Tahir Qayyum was executed on 31st October, 2006 . He was authorised to look after the case. The suit was not filed through attorney Tahir Qayyum. It was directly filed by the plaintiff Muhammad Ayub. The objection has no force, therefore, the same is repelled.
9. We have also considered the argument that the plaint is signed and verified by the counsel for the plaintiff and not by the plaintiff himself as such it is not competently filed, thus it merits dismissal. Rule 3 of the Azad Jammu and Kashmir Family Courts Procedure Rules, 1998 deals with the institution of the plaints. For proper appreciation we deem it proper to reproduce the said rule which is as under:--
"Institution of plaint.--(1) A plaint under sub-section (1) of Section 7 shall be in writing, signed and verified by the plaintiff and shall be presented to the Court, having jurisdiction under Rule 4 of these rules by the plaintiff or through a counsel and where the plaintiff is a female by her agent.
(2) The plaint under sub-rule (1) shall also contain the following particulars--
(a) name of the Court in which the suit is brought and the fact showing that it has jurisdiction;
(b) name, description and place of residence of the plaintiff;
(c) name, description and place of residence of the defendant so far as can be ascertained;
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to the effect;
(e) the fact constituting the cause of action;
(f) the nature of the claim and valuation of the claim with particulars in brief and the relief claimed."
A perusal of Rule 3(1) reveals that a plaint under sub-section (1) of Section 7 shall be in writing, signed and verified by the plaintiff and shall be presented in the Court having jurisdiction under Rule 4 of these rules by the plaintiff or through a counsel. The rule further lays down that where the plaintiff is a female, the suit may be filed by her agent. Although the word "shall" has been used in Rule 3(1) in the Family Courts Procedure Rules, 1998, but there is no provision that non-compliance of such rule will result into rejection of plaint or any other penalty. It is a celebrated principle of interpretation of statutes that in absence of any penal provision in the rules, in case of non-compliance, the operation of rules shall be directory in nature and not mandatory. In a case titled Saeed-ud-Din vs. IIIrd Senior Civil Judge (East) Karachi Karachi
"In absence of any penal provision in the Rules in case of non-compliance of Rule 4 of the Sindh Muslim Family Courts Rules, 1965, sub-rule (2) will be taken to be directory in nature."
The non-signing of plaint and verification by the plaintiff himself will not affect the filing of the suit. The suit was competently filed in the Family Court.
10. Whether a suit for jactitation of marriage can be filed by a husband or not or it can only be filed by a woman/wife is also an important question which requires resolution. Section 5 of the AJ&K Family Courts Act, 1993 deals with the question of jurisdiction. For proper appreciation of law, we deem it proper to reproduce Section 5 which is as under:
"Jurisdiction.--The Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule."
The above section postulates that the matters specified in the Schedule of the Act shall be exclusively heard by the Family Courts and the Family Court shall have jurisdiction to entertain, hear and adjudicate upon such matters. We feel it necessary to reproduce the Schedule of the Act which is as under:--
"SCHEDULE
1. Dissolution of marriage.
2. Dower.
3. Maintenance.
4. Restitution of conjugal rights.
5. Custody of children.
6. Guardianship.
7. Jactitation of marriage.
8. Dowry."
The Family Court has exclusive jurisdiction to entertain, hear and adjudicate upon the matters enumerated in the Schedule. Jactitation of marriage falls at Serial No. 7 in the Schedule. The matter of jactitation of marriage was not initially part of the Schedule. It was inserted through an amendment brought in the Act on 23rd January, 1997 . The Family Court has got exclusive jurisdiction for deciding the question of jactitation of marriage. What is "jactitation of marriage"? It will be useful to reproduce the meanings of words "Jactitation of marriage" given in different dictionaries:--
Chamber's 20th Century Dictionary (New Edition 1973) page 702:
Jactitation of marriage, pretence of being married to another. [L.L. jactitatio, onis--L. jactitare, atum, to toss about, make a display of, freq. of jactare, to throw.]
Black's Law Dictionary (9th Edition) (page 910):
Jactitation: 1. A false boasting or claim that causes an injury to another. [Cases: Libel and Slander.--132. C.J. S. Libel and Slander; Injurious Falsehood].
2. Civil Law. Slander of title.
Jactitation of marriage: (1) false and actionable boasting or claiming that one is married to another.
2. An action against a person who falsely boasts of being married to the complainant.
`Jactitation of marriage is a cause of action which arises when a person falsely alleges that he or she is married to the petitioner, and the remedy sought is of perpetual injunction against the respondent to cease making such allegations. The cause is now uncommon in English municipal law and almost unknown in the conflict of laws.'
Webster's Third New International Dictionary (Volume II) page 1207;
Jactitation of marriage: False and actionable pretension that one is married to someone, xxx xxx xxx xxx."
Law Dictionary of Words and Phrases Judicially Defined (Edition 1986), page 406:
Jactitation: Jactitation of marriage is an action for the false, malicious and unexcusable boast, an assertion by a person that some-one-else is married to him or her. It is in the nature of a criminal suit; it has something in common with proceedings for defamation. Muhammedan Law provides for a suit for "jactitation of marriage'', praying for injunction to restrain the defendant from falsely claiming to be the plaintiff's husband or wife. A declaratory suit may lie under Section 34 of the Specific Relief Act, 1963."
The dictionary meaning of expression "jactitation of marriage" is that it is a false pretence of being married. False pretence may be by a man or a woman. The term "jactitation of marriage" is of wide implication and would seem to cover an assertion by either of the spouses or by a third party, denying the marriage between the alleged husband and wife and would therefore include an action either by one of the spouses against the other or by the spouses against third party. It could safely he concluded that a suit can be filed by a person other than the spouses involved in the jactitation of marriage. And so can a suit be filed by the spouses, against third party with a view to prevent them from denying their marriage. A person may claim that a woman is not his wife or a wife may claim that she is not wife of defendant and he/she shall refrain from claiming as such. In a suit by a plaintiff that a woman is his lawfully wedded wife and another person, who claims to be her husband or the woman claims to be the wife of another person, the plaintiff may request for issuance of a prohibitory decree. A suit for declaration that the defendant is not the husband or wife of the plaintiff and the defendant alleges to be wife or husband by the plaintiff is a suit for jactitation of marriage. In a case titled Mst. Amina Begum vs. Ghulam Nabi and 2 others [PLD 1974 Lahore
"7. The expression "Jactitation of marriage" is defined in the Wilson
`False Boast of marriage.--If anyone persistently and falsely alleges marriage with another, the latter may obtain in a suit for jactitation of marriage a decree of perpetual silence. Only the person complaining that he has so been misrepresented can present such a petition. It is now a rare procedure.'
A suit for jactitation is the only case in which matrimonial suit can, as of right, be proceeded without prima facie proof of a marriage de facto.
In Mir Asmat Ali v. Mahmudul Nisa [ILR 20 All. 96] the object of the suit was given as follows:--
`There can be no doubt that unless a man is entitled by means of the Civil Courts to put to silence a woman who falsely claims to be his wife, the man and others may suffer considerable hardships and his heirs may be harassed by false claims after his death.'
These quotations undoubtedly support the respondent. They lay down the form of a suit for jactitation of marriage. The question, however, is whether this form is exhaustive of the above suits and whether the expression "jactitation of marriage" has been used in the Schedule to the Family Courts Act as referring to a suit of this form. I am of the view that this form is not exhaustive. It is only the usual form in which petitions for jactitation of marriage have been made in Ecclesiastical Courts.
8. The word "jactitation" according to the Twentieth Century Dictionary means "bragging, public assertion, esp. ostentatious and false". "Jactitation of marriage" means "pretence of being married to another", in Goldstone v. Goldstone [(1922) 127 L.T.R. 32] it was held that:--
`Jactitation or marriage is an unwarrantable assertion that marriage exists and it has been within the jurisdiction of this Court for many years to intervene to put to silence the person making a false declaration of marriage.'
The Dictionary meaning of the expression jactitation of marriage and the general definition given in this authority would go to prove that jactitation is a false pretence of being married. It is not material whether the false pretence is made by the plaintiff or the defendant. What is relevant is that the boaster or pretender may be put to silence with the intervention of the Court. If it be essential to file a suit for permanent injunction to silence the person making the false claim, a suit for jactitation must be filed by the party denying the marriage. But such a relief is not necessary either under the law of England Pakistan Pakistan
It was further observed as under:--
"....... I do not see any reason why a suit for jactitation of marriage will not include a suit for declaration by a person falsely posing that he is the spouse of the defendant. In my view any declaration as to the status where one party alleges marriage and the other denies, it will amount to a decree for jactitation of marriage."
In Tajoo vs. Mst. Sattran [PLD 1974 Lahore
"It is clear from all these citations that a suit for a declaration that the defendant is not the husband or wife of the plaintiff and that the defendant alleges to be the wife or husband of the plaintiff, is a suit for jactitation of marriage. The present suit falls under this category and could therefore, be filed only before a Family Court."
In Mst. Zohran Bibi vs. Manzoor Ahmad and 2 others [PLD 1975 Lahore
"6. Coming to merits of the contention raised in this case, learned counsel for the respondent could nor 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, a 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 operation 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 be covered by those of Mst. Amina Bewgum and Tajoo relied upon by the learned counsel for the appellant. If that is so, the Civil Court
11. From the survey of above case law we have reached the conclusion that the Family Court has exclusive jurisdiction to try a suit for jactitation of marriage.
The result of above discussion is that finding no force in this appeal it is hereby dismissed with no order as to costs.
(R.A.) Appeal dismissed
No comments:
Post a Comment