Suit for Jactitation of Marriage Judgment

PLJ 2010 Sh.C. (AJ&K) 1

Present: Iftikhar Hussain Butt, J.

PARVEEN NAZ & another--Appellants

versus

CH. MAQBOOL AHMAD and 4 others--Respondents

Civil Appeal No. 116 of 2005, decided on 10.4.2009.

Nikahnama--

----Suit for jactitation of marriage was dismissed for want of proof--Suit for restitution of conjugal right was decreed--Challenge to--Controversy between the parties--Question of--Whether appellant was married or not--Burden to prove--Non-production of attesting witnesses--Non-availability of nikahnama or attesting witnesses of `nikahnama' will not adversely affect the case of respondent in peculiar facts and circumstances of the case, which is otherwise abundantly proved.  [P. 7] A

PLD 1973 Baghdad-ul-Jadid 48, rel.

Nikah Ceremony--

----The absence of witnesses of "Nikah" ceremony would not make the marriage void but only irregular whereas void but only irregular whereas a marriage duly performed in presence of two persons cannot be described as invalid in any case.     [P. 8] B

PLD 1950 Lah 504, rel.

Mr. Azad Khan Tareen, Advocate for Appellants.

Syed Arshad Gillani, Advocate for Respondents.

Date of hearing: 10.4.2009.

Judgment

This appeal has been directed against the decision and decrees of learned Judge Family Court, Muzaffarabad dated 30.07.2005, whereby the suit filed by Appellant No. 1 was dismissed for want of proof and a decree for restitution of conjugal right was passed in favour of Respondent No. 1.

The necessary facts forming the background of instant appeal are that Mst. Parveen Naz, Appellant No. 1 filed a suit for jactitation of marriage against Respondent No. 1, herein. She averred that she was married to Muhammad Munir in her child-hood but after attaining puberty she dissolved the marriage at her own and obtained divorce from him on 8.8.2002. She further contended that other respondents after killing her father planned to sell her to some different people but she liked Imran Jadoon, Appellant No. 2 and wanted to marry him. For the purpose she appeared before Magistrate 1st class Muzaffarabad on 27.1.2005 and stated that she wanted to marry to Appellant No. 2 but Respondents Nos. 2 to 5 wanted to sell her to some other persons. She has married to Appellant No. 2 on 5.12.2004 but on account of a fictitious case initiated by Respondent No. 1, city police Muzaffarabad arrested her and Appellant No. 2 on 4.02.2005 but they were released on bail by Shariat Courton 30.03.2005. The Appellant No. 1 also stated that she was never married to Respondent No. 1 and did not admit the fake `Nikahnama'. She further prayed that a decree for jactitation of marriage against Respondent No. 1 may be passed and Respondents Nos. 2 to 5 be ordered not to intervene in lives of the appellants. The respondents, who filed their written statements, refuted the allegations leveled in the plaint. The respondents submitted that Appellant No. 1 after obtaining divorce from Muhammad Munir contracted `Nikah' with Respondent No. 1 on 11.2.2003 in lieu of dower Rs. 50,525/- at Karachi in presence of her mother and brother. The respondent further stated that on 24.3.2003, Appellant No. 1 filed a suit for dissolution of her marriage, which was dismissed on 13.8.2003 as withdrawn, which proves that Appellant No. 1 was married to Respondent No. 1. The respondents also submitted that after `Nikah' the Appellant No. 1 remained populated with Respondent No. 1 and has been performing marital obligations but on 24.7.2004, she left her house in his absence and after searching her, he lodged an F.I.R on 26.07.2004 whereby Appellant No. 1 was recovered from the house of the Appellant No. 2 on 4.2.2005. The respondents further stated that Appellant No. 1 has contracted second marriage without obtaining divorce from him; therefore, she has got no cause of action and her suit entails dismissal.

In the light of pleadings of the parties the learned Judge Family Court framed the following issues:--

1.    Whether the plaintiff is entitled to a decree for jactitation of marriage? OPP.

2.    In case Issue No. 1 is not proved whether Defendant No. 1 is husband of the plaintiff? OPD.

3.    Relief.

Ch. Maqbool Ahmed, Respondent No. 1 also filed a suit for restitution of conjugal rights before Judge Family Court on 30.6.2006 whereby he repeated the story narrated in his written statement mentioned above, whereas the appellants and others also refuted his suit and repeated the submission averred in the suit for jactitation of marriage filed by Appellant No. 1.

In the light of above stated suit for restitution of conjugal rights, an additional issue was framed on 6.7.2005 in the following manner:--

Whether Respondent No. 1 is entitled to a decree for restitution of conjugal rights? OPD.

The learned Judge Family Court consolidated both the suits and proceeded in the suit filed for jactitation of marriage.

In support of her suit, Mst. Parveen Naz entered into the witness-box and produced Abdul Jalil Qureshi `Nikahkhawan', Ghulam Khan the maternal uncle of Appellant No. 2 and Khani Zaman father of Appellant No. 2 as her witnesses. She also produced `Nikahnama' Exh.PA and copy of the judgment of Family Court dated 17.2.2004 Exh.PB.

On the other hand, Respondent No. 1 also appeared in the witness-box and produced Muhammad Siddique, his father, Mst. Khanum Noor, mother of Appellant No. 1 and Muhammad Shafique brother of Appellant No. 1 as his witnesses. The respondents also produced documents `Nikahnama' Exh.PA, a certified copy of the suit for dissolution of marriage filed by Appellant No. 1 in Karachi Family Court Exh.DB, a copy of compromise deed Exh. DC, a copy of the private complaint Exh.DD, a copy of the challan report Exh.DE, the statement of Appellant No. 1 and her witness, who identified her Exh.DF, a copy of divorce deed Exh.DH and, copy of an agreement deed Exh.DH in support of his claim.

After completion of the proceedings, the learned Judge Family Court dismissed the suit filed by Mst. Parveen Naz Appellant No. 1 for want of proof and passed a decree for restitution of conjugal rights in favour of Ch. Maqbool Ahmed Respondent No. 1, against Appellant No. 1 vide its decision dated 30.07.2005. Hence this appeal.

Azad Khan Tareen, the learned Counsel for the appellant argued with vehemence that the respondents have produced a Photo-stat copy of `Nikahnama' which cannot be relied upon because fake thumb impressions have been affixed upon it. The learned Counsel pointed out that the Appellant No. 1 after obtaining divorce from Munir Ahmed contracted second marriage with Appellant No. 2 but a fake case was registered against appellants and they were arrested by the police. The learned Counsel further contended that during earthquake the challan file has perished; therefore, original Nikahnama could not be produced before the court below. The learned Counsel pressed into service the submission that the appellants have produced Nikahkhawan and the witnesses present at the time of `Nikah' ceremony who have fully supported the version of the appellants but the learned Judge Family Court ignored the cogent and trustworthy evidence while relying upon the evidence of related and interested witnesses produced by respondents. The learned Counsel also submitted that Respondent No. 1 neither produced Nikahkhawan nor any of the witnesses present at the time of `Nikah' ceremony. The learned counsel laid great stress upon the point that respondents have produced a copy of the judgment of Judge Family Court Karachi about another Parveen Bibi his ex-wife whereby the Appellant No. 1 has clearly stated in her deposition that she has contracted second marriage with Appellant No. 2 with her freewill; therefore, the court below fell in grave error while dismissing the suit filed by Appellant No. 1. In support of the arguments, the learned counsel referred to me the following case law:--

1.    1995 CLC 531.

2.    PLJ 2004 AJK 58.

On the other hand, Syed Arshad Gillani, the learned counsel for the respondents vigorously argued that Respondent No. 1 has produced original Nikahnama Exh. DA to prove the factum of his Nikah. The learned Counsel further contended that respondent has also produced a copy of private complaint Exh.DD filed by Appellant No. 1 whereby she admitted to be wife of Respondent No. 1. The learned Counsel also referred to the statement of appellant Exh.DF dated 25.6.2004, whereby she admitted the fact that she is residing with her husband, Respondent No. 1. The learned Counsel pointed out that Appellant No. 1 in her statement recorded on 27.1.2005 submitted before the court that she wanted to marry Imran Jadoon, Appellant No. 2; therefore, the story of Nikah ceremony dated 5.12.2004 has been refuted by herself; thus, Nikahnama Exh.PA is vague and not trustworthy. The learned Counsel laid great stress upon the point that Appellant No. 1 has admitted the Para (6) of the suit for restitution of conjugal rights filed by Respondent No. 1, thus, she has admitted that she is wife of Respondent No. 1 and now she is debarred from taking a different stance. The learned Counsel submitted that it has been amply proved on the record by oral as well as documentary evidence that Appellant No. 1 was married to Respondent No. 1 therefore, till the first marriage exists, Appellant No. 1 was not legally allowed to contract a second marriage; therefore, the Court below did not commit any error or illegality while dismissing her suit. The learned counsel defended the impugned decision and decrees on all counts.

I have given my due consideration to the arguments addressed at Bar and perused the case-law cited by the learned Counsel for the appellants. The controversy between the parties is as to whether Appellant No. 1 was married to Respondent No. 1 or not. In this regard, the burden to prove the fact that Appellant No. 1 was never married to Respondent No. 1 was laid upon the shoulders of Appellant No. 1. To prove her claim, the appellant not only herself entered into the witness box but she also produced Abdul Jalil Qureshi Nikahkhawan, Gnulam Khan and Khanizaman as her witnesses. All the above-mentioned witnesses are closely related to Imran Jadoon, Appellant No. 2. Khanizaman is his father, Ghulam Khan is his maternal uncle whereas daughter-in-law of Abdul Jalil is sister of Appellant No. 2 but according to the perusal of aforesaid evidence, the appellants have tried to prove that Appellant No. 1 was married to Appellant No. 2 on 5.12.2004. In this context, a certified copy of `Nikahnama' Exh.PA and a certified copy of the suit for restitution of conjugal rights filed by Respondent No. 1 against her ex-wife were produced. During the course of cross-examination, it was admitted by Abdul Jalil Qureshi Nikahkhawan that at the time of `Nikah' ceremony, he was not informed that Appellant No. 1 was married to Respondent No. 1; however, after 3/4 months of `Nikah' when a case was registered against the appellants and others, he came to know that there was a lot of confusion and chaos about the aforementioned marriage. On the contrary, the respondents refuted the claim of Appellant No. 1 and categorically proved the fact that Appellant No. 1 was married to Respondent No. 1 on 11.2.2003. In this regard, an original `Nikahnama' Exh.DA was produced by Respondent No. 1 and he deposed his version in detail. He also produced a copy of the suit for dissolution of marriage filed by Appellant No. 1 before Judge Family Court Karachi dated 24.3.2003 and document Exh.DC a copy of the withdrawal of aforementioned suit dated 13.8.2003, which proves the fact that Appellant No. 1 was married to Respondent No. 1 on 11.2.2003. The respondent also produced a copy of private complaint under Section 107, Cr.P.C presented before a Criminal Court at Muzaffarabad dated 25.6.2004 Exh.DD, which shows that Mst. Parveen Naz was wife of Respondent No. 1 at that time. The statements of Mst. Parveen Naz dated 25.6.2004 and of Respondent No. 1 as a witness of the complaint Exh.DF have also been produced to prove the factum of marriage. Thereafter, a copy of challan report under Section 173, Cr.P.C Exh.DE was also produced whereby after investigation of the case, I.O. reached the conclusion that Mst. Parveen Naz was wife of Respondent No. 1, who was abducted by the accused-persons including Appellant No. 2 and `Zina' has been committed with her. The Respondent No. 1 has further produced a divorce deed Exh.DG and an agreement deed Exh.DH executed by Appellant No. 1 whereby she obtained divorce from Muhammad Munir her ex-husband and thereafter she solemnized second marriage with Appellant No. 2. Besides the above mentioned documentary evidence, Respondent No. 1 has produced Muhammad Siddique, his father, Mst. Khanum Noor, the mother and Muhammad Shafique brother of Appellant No. 1 as his witnesses, who have fully supported the version of Respondent No. 1 and deposed that they participated in the marriage ceremony of Appellant No. 1 with Respondent No. 1 at Karachi. They also supported the contents of `Nikahnama' Exh.DA. The other party has also admitted the presence of Mst. Khanum Noor and Muhammad Shafique, the witnesses for the respondents, during the cross-examination upon Respondent No. 1 whereby it was suggested to him whether it is correct that Mst. Khanum Noor and Muhammad Shafique were present in `Nikah' ceremony. In this manner, the appellants have admitted the presence of both the above mentioned witnesses for Respondent No. 1 at the time of marriage.

It will not be out of place to mention here that in para (6) of the suit for restitution of conjugal rights filed by Respondent No. 1, it was averred that Appellant No. 1 in connivance with other defendants contracted second marriage without obtaining divorce from him and she also filed a private complaint under Section 107, Cr.P.C before a Criminal Court Muzaffarabad, whereby she admitted to be the wife of Respondent No. 1 on 25.6.2004 but the filing of private complaint whereby Appellant No. 1 stated to be the wife of Respondent No. 1 was admitted as correct by the appellants and other defendants of the suit whereas other part of the aforesaid para was also not specifically denied. In this manner, the appellants have admitted the fact that before contracting marriage with Appellant No. 2, the relation of Appellant No. 1 with Respondent No. 1 was in existence till 25.6.2004.

In the light of above stated oral and documentary evidence, the appellants have miserably failed to prove the fact that Appellant No. 1 was never married to Respondent No. 1 rather it has been proved on the record that on 11.2.2003 Appellant No. 1 was married to Respondent No. 1 at Karachi in presence of her mother, brother, father of Respondent No. 1 and other family members and the above relation still survives.

It will be relevant to note here that according to appellants they married on 5.12.2004 but in Para (4) of her plaint, she averred that on 27.1.2005, she appeared before Magistrate 1st Class Muzaffarabad and stated that she wanted to marry to Appellant No. 2. If she would have already married to Appellant No. 2 on 5.12.2004 then she should have mentioned and deposed in her statement that she is wife of Appellant No. 2. In support of aforesaid version, Appellant No. 1 has annexed with her suit a Photostat copy of her statement recorded by Magistrate 1st Class Muzaffarabad dated 27.1.2005.

I cannot subscribe to this view of the learned Counsel for the appellants that due to non-production of attesting witnesses of `Nikahnama' Exh.DA, the factum of `Nikah' could not be proved. Suffice to note that the presence of witnesses for the respondents has been admitted by the appellants at the time of `Nikah' ceremony, who have clearly proved the factum of `Nikah' between Appellant No. 1 and Respondent No. 1; therefore, the non-availability of Nikahkhawan or attesting witnesses of `Nikahnama' will not adversely affect the case of Respondent No. 1 in peculiar facts and circumstances of the case, which is otherwise abundantly proved.

In this regard, I am fortified by a case reported as Mst. Qadul & 7 others V. Allah Bachaya & 2 others (PLD 1973 Baghdad-ul-Jadid 48), wherein the following principle was enunciated at page 60 of the report:

"It becomes abundantly clear that claims to marriage must not fail merely on account of the absence or the non-availability of witnesses of marriage but circumstantial evidence would also be very much relevant and at times conclusive. It is equally well settled as mentioned in that evidence of repute has been unanimously held to be admissible in four matters, namely: marriage, paternity; death and judicial decisions. Some jurists are of the view that evidence of repute is admissible in six cases."

Even otherwise, the absence of witnesses of `Nikah' ceremony would not make the marriage void but only irregular whereas a marriage duly performed in presence of two persons cannot be described as invalid in any case. My aforesaid view finds support from a (case titled as Shahzada Begum V. Abdul Hamid (PLD 1950 Lahore 504), wherein it has been opined at page 506 of the report in the following manner:

"According to the various text books on Muslim Law, even the absence of witnesses at the nikah would merely make the marriage irregular and not void. Reference in this connection may be made to Para 197 of Mulia's Muhammadan Law, 11th Edition, and Pages 101 and 114 of Wilson's Anglo Muhammadan Law, 6th Edition. There is also a Single Bench authority of the Allahabad High Court in Mst. Bashirunnisa and another V. Bunvad Ali and another (50 IC 677 (1919)) in support of the view that a marriage contracted without witnesses is not illegal, but merely irregular and irregularity would be curable by consummation of the marriage. The late Syed Amir Ali adopted a similar view in Volume 11 of Muhammadan Law, 5th Edition, Page 312, and it would seem to follow that a marriage duly performed in the presence of two persons could not be described as invalid in any sense. I, therefore, repel the contention raised by learned counsel for the appellant on the first ground."

This argument of the learned Counsel for the appellants is also not tenable that the copy of judgment Exh.PB produced by Respondent No. 1 relates to another Parveen Bibi ex-wife of Respondent No. 1 because the plain reading of the aforesaid suit shows that the suit was filed by Mst. Parveen Bibi d/o Din Muhammad Appellant No. 1 and not by Mst. Parveen Bibi d/o Abdul Hameed, the ex-wife of Respondent No. 1.

As discussed above, the appellants miserably failed to prove their case whereas the Respondent No. 1 has abundantly proved that Appellant No. 1 was married to him atKarachi in presence of her mother, brother, father of Respondent No. 1 and other notables of the tribe. In this manner, Appellant No. 1 was not at all justified to contract a second marriage without obtaining divorce from Respondent No. 1. On this account, the findings of the Court below have been recorded in a legal and proper manner after careful appraisal of the evidence of the parties; thus, does not call for any interference by this Court.

As far as the case law cited by the learned Counsel for the appellants is concerned, is quite distinguishable from the facts of instant case; therefore, does not require any detailed analytical survey.

The upshot of above discussion is that finding no force in this appeal, it is hereby dismissed.

(M.S.A.)    Appeal dismissed.