Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mst. Saman Naseer VS Respondent: Additional District Judge, Lahore etc
Court Name: Lahore High Court Judge(s): Shujaat Ali Khan Title: Mst. Saman Naseer vs Additional District Judge, Lahore etc Case No.: W.P. No. 3812 of 2019 Date of Judgment:2020-01-23 Reported As: 2020 LHC 47, 2020 CLC 549, PLJ 2020 Lahore 111 Result: Petition dismissed
JUDGMENT
JUDGMENT Shujaat Ali Khan, J. Unnecessary details apart, the petitioner filed suit for jactitation of marriage against respondent No.3 which was dismissed by the learned Judge Family Court, Lahore (learned Trial Court) vide judgment & decree, dated 04.05.2018, however, marriage between the parties was dissolved on the basis of Khula. Being aggrieved of the decision rendered by the learned Trial Court, the petitioner preferred an appeal but without any success as the same was dismissed by the learned Additional District Judge, Lahore (learned Appellate Court) through judgment & decree, dated 22.12.2018; hence this petition. 2. Learned counsel for the petitioner submits that upon denial of execution of valid Nikah by the petitioner, onus shifted on the shoulders of respondent No.3 to prove valid Nikah between the parties but learned Trial Court wrongly placed onus of the said issue on the petitioner; that initially, while filing written statement, respondent No.3 mentioned the date of marriage as 26.11.2013 and that of departure (rukhsti) as 26.11.2014 but while filing suit for restitution of conjugal rights he averred that departure (rukhsti) took place on the date of Nikah i.e. 26.11.2013 and in the affidavit- in-evidence filed before learned Trial Court he knowingly omitted to mention the date of marriage with a view to camouflage material contradiction on his part during various proceedings; that both the courts below also formed opinion against the petitioner for untenable reason that she did not appear in the witness box without considering that not only under section 17 of the Family Courts Act, 1964 she could appear before the Court through an attorney but also she entered appearance before learned Trial Court through attorney after seeking requisite permission from the Court; that careless attitude on the part of the learned Trial Court is evident from the fact that though it
---
## Page 2
observed in its judgment that the audio recording, initially produced by respondent No.3, was not available on court file but in the later part of the judgment it relied upon the same; that DW-4 & DW-6, who allegedly witnessed the Nikah between the parties, did not utter even a word about the fact that the petitioner put her signatures or thumb impression in their presence; that non- mentioning of exact address of the petitioner in Nikah Nama by the Nikah Khawan is proof of the fact that vague address was mentioned just to justify his jurisdiction to register the forged and fraudulent document (Nikah Nama); that material contradiction on the part of the DWs is evinced from the fact according to DW-3 the Nikah Nama was completed by his son who never entered the witness box whereas to the rest of the DWs the same was filled in by DW-3 (Nikah Khawan) himself; that mala-fide on the part of respondent No.3 is evident from the fact that though the petitioner is resident of Lahore but her address in the Nikah Nama was shown as that of Burewala; that according to father of respondent No.3, he visited the parties on 28.11.2014 when they were putting up in a rented house in Valencia Town, Lahore but according to the Rent Deed the period of tenancy was to start from 01.12.2014, thus, it could not be believed that the parties started to live in that house even prior to start of tenancy period; that contumacious conduct of respondent No.3 is established from the fact that in the Tenancy Agreement not only there is cutting on the date relating to issuance of stamp paper which was used for the said purpose but also the signing of said document by a witness on 22.11.2014 even prior to issuance of the stamp paper renders the entire story doubtful; that since respondent No.3 did not rely upon the Nikah Nama in the list of reliance, thus, he could not be allowed to produce the same at some subsequent stage; that upon coming to know about the material contradiction in the stances taken in the written statement and the suit filed by him for restitution of conjugal rights, respondent No.3 filed application for amendment of his suit for restitution of conjugal rights which was dismissed by the learned Trial Court whose order remained intact upto this Court; that during proceedings before the learned Trial Court, the petitioner gave consent that if it was proved from the location of her cell phone or through the audio recording, produced by respondent No.3, that she was available in Burewala on the date of Nikah she would withdraw her suit but the same was neither accepted by respondent No.3 nor was given any weightage by the courts below; that though Nikah Nama is considered to be a public document but when its authenticity is impugned by any of the parties, it assumes the status of a private document and that the party claiming benefit under a document is bound to prove its execution. Relies on Matloob Hussain v. Mst. Shahida and 2 others (PLD 2006 SC 489), Qalandri Bibi v. Mst. Irum Bibi and others (2019 YLR 86), Sardara and Allah Ditta through Legal Heirs v. Mst. Bashir Begum and another (PLD 2016 Lahore 587), Mst. Ruqayya Bibi v. Additional District Judge etc. (PLD 2012 Lahore 408), Mushtaq Ahmed Malik v. Muhammad Sunawar Choudhary and another (2003 YLR 406) and Hafiz Abdul Waheed v. Miss Asma Jehangir and another (PLD 1997 Lahore 301). 3. Conversely, learned counsel representing respondent No.3, while defending the impugned decisions of the courts below, submits that according to the documents appended with this petition the statement of the petitioner was recorded on 25.06.2016 through courtesy of the Local Commission, namely, Mr. Shahzad Amin, Advocate but the said statement having not been signed by the learned Trial Court could not be used against the respondent; that concurrent findings of facts recorded by the courts below cannot be interfered by this Court; that learned counsel representing the petitioner has argued the matter as an appeal and relied upon certain provisions of Qanoon-e-Shahadat Order, 1984 and CPC despite the fact that both these enactments are inapplicable in familial matters; that despite addressing the Court at length, learned counsel representing the petitioner has not been able to point out any legal infirmity in the well-reasoned decisions of the courts below justifying interference by this court in exercise of its constitutional jurisdiction; that since it was run-away marriage, routine formalities could not be fulfilled, thus, the
---
## Page 3
points agitated by the learned counsel representing the petitioner do not justify upsetting the concurrent findings of the courts below; that though in the plaint the petitioner levelled allegation of misrepresentation and fraud but she did not produce any evidence to prove the same; that PW- 1, during evidence, admitted that the photographs, produced before him, were of his niece (petitioner) thus solemnization of valid Nikah stood proved; that mala-fide on the part of the petitioner is evident from the fact that none of the PWs uttered even a word about the exact location of the petitioner on the date of Nikah meaning thereby that she was available with respondent No.3 at Burewala; that even while appearing before the Judicial Magistrate at Tandlianwala, the petitioner did not clarify that where she was on the date of Nikah; that the Bailiff, deputed in the habeas corpus petition filed by respondent No.3, raided the house of the petitioner whereupon he was told by maternal uncle of the petitioner (PW-1) that she was missing from the house for so many days which fact also lends support to claim of respondent No.3 that the petitioner contracted valid marriage with him; that the petitioner being more than 27 years of age at the time of Nikah competently exercised her right to contract marriage according to her own whims; that even in a letter, addressed by the petitioner to respondent No.3, she clarified that she did not file the suit out of which present proceedings have emanated which fact is sufficient to believe that her family compelled her to disown the contents of Nikah Nama; that inconsistent attitude on the part of the petitioner is evident from the fact that on the one hand she has taken the stance that she was alien to respondent No.3 but on the other in the caption of the suit has provided his full particulars, including CNIC Number; that a party, which alleges a fact, is bound to prove the same and since the petitioner alleged impersonation at the time of solemnization of Nikah, she was bound to prove that some other lady was produced in her place at the relevant time; that according to report of the Bailiff, deputed in the habeas corpus petition filed by respondent No.3, maternal uncle of the petitioner (PW-1) informed that she was missing for last two weeks and the said report having not been challenged any further and being a public document, carries presumption of correctness; that when a witness is found guilty of telling a lie, his/her entire statement is to be discarded; that though the petitioner got registered a criminal case against respondent No.3, wherein PW-1 is witness, but during evidence he (PW-1) refused to recognize respondent No.3; that the pleas raised by respondent No.3 before the fora were not specifically rebutted by PW-1, thus, the same amounted to admission; that PW-2 admitted that at the time of raid by the bailiff, deputed in the habeas corpus petition filed by respondent No.3 the petitioner was not available in her house, thus, she was bound to establish her exact location anywhere else at the relevant time; that PW-2 did not deny execution of Nikah between the parties with the only difference that it was not Sharai Nikah; that PW-2 admitted that English signatures of the petitioner, available on Nikah Nama, matched with her signatures available on her CNIC; that voluntary portion of statement of a witness cannot be used to decide a matter; that section 18 of the Family Courts Act, 1964 only provides for appearance of a person through an attorney who has been called to appear as a witness but since the petitioner herself filed suit and pursued it till the stage of evidence, no persuasive reasons were given by learned Trial Court while permitting her to appear through attorney; that it is very ironical that most of the family members of the petitioner are leading bachelor life, thus, their unhappiness over the marriage between the parties was natural; that since the last lines of document available at Page No.99 corresponds to the opening lines of document available at Page No.101, it stands established that documents available at Page Nos.100 & 101 were inserted at some subsequent stage; that while showing his bona fide, respondent No.3 filed application for comparison of signatures of the petitioner on Nikah Nama with her admitted signatures but the same was hotly contested by her and resultantly the same was dismissed by learned Trial Court with the observation that the same was filed belatedly; that during proceedings before learned Trial Court, in the first instance the petitioner side offered for
---
## Page 4
virginity test of the petitioner to confirm as to whether the marriage between the parties was consummated or not but when respondent No.3 filed formal application in that regard, the petitioner opposed it tooth and nail just to conceal the reality; that since respondent No.3 succeeded to prove that he had been living with the petitioner as husband-wife, the execution of tenancy in favour of respondent No.3 at some subsequent point was immaterial as in routine the landlords hand over physical possession of the rented premises to the tenants even before completion of codal formalities; that it is well-established by now that evidence recorded in one case cannot be used in another case except for the purposes of confrontation to a witness; that since respondent No.3 amended plaint of his suit for restitution of conjugal rights, with permission of the Court, any deficiency in the un-amended plaint could not be used against him; that suggestion, howsoever strong, cannot be used as substitute of a fact; that inconsistent attitude of the petitioner is apparent from the fact that in the first instance she alleged that her signatures were forged by respondent No.3 but subsequently while improving her case she took the plea that some other lady was produced in her place at the time of Nikah; that personal appearance of the petitioner in the witness box case was also necessary for the reason that certain questions, in particular those relating to the measurement for stitching of bride suit, could only be answered by herself and not by the attorney; that love-letter written by the petitioner to respondent No.3, with her blood, stands proof of the fact that they were fully involved with each other which ultimately resulted into solemnization of run-away marriage as parents of both sides were not ready for arrange marriage; that bona fide on the part of respondent No.3 is visible from the fact that despite animosity with the family of the petitioner, he opted to attend funeral of mother of the petitioner when he was not only brutally thrashed but also a criminal case was got registered against him; that though after issuance of medico legal report pursuant to the direction of the Magistrate concerned, a criminal case was registered against family of the petitioner but the same was cancelled within 09 days of its registration due to the pressure of the petitioner's family on account of their sound financial status; that cursory statement of the petitioner, made in the complaint filed by her at Tandlianwala, shows that at the relevant time she was not available in her parental house rather she was enjoying blissful marital life with respondent No.3; that sanction of marriage grant by the Bank in favour of respondent No.3 at the crucial time also affirms that valid marriage was solemnized between the parties; that minor discrepancies, highlighted by learned counsel for the petitioner during the course of arguments, cannot be used to interfere in the concurrent findings of facts recorded by the courts below; that when the petitioner failed to rebut the assertion of respondent No.3 that on 26.11.2013 he was on leave from the Bank in connection with his marriage the plea of respondent No.3 was to be taken as correct; that to arrive at a just conclusion, respondent No.3 filed an application for verification of thumb impression of the petitioner on various documents but the said request was hotly contested by the petitioner just to avoid unveiling of truth; that though the petitioner challenged certain orders of learned Trial Court by filing constitutional petitions (writ petitions) before this court but none of them was decided on merits, thus, the assertion of the petitioner that the orders passed by learned Trial Court were upheld by this Court is against the record; that section 18 ibid is only attracted when a person so required is Parda Nasheen lady or is unable to appear before the Court due to any other reason but in the case in hand when the petitioner opted for run-away marriage she could not be treated as Parda Nasheen lady; that appearance of the petitioner in person before different fora prior to filing of the suit, under discussion, speaks volumes about the fact that she could not be dubbed as Parda Nasheen lady; that after brushing aside the objections of the petitioner against production of photographs before the learned Trial Court, the same were rightly relied upon by the courts below; that with a naked eye, it can be discerned that signatures of the petitioner on different documents, appended with this petition as well as those available on Nikah Nama are identical;
---
## Page 5
that since all the contentions of the petitioner were dealt with by the learned Appellate Court, one by one, no interference is called for by this Court in these proceedings; that since the petitioner was 27 years of age at the time of marriage it cannot be believed that she signed the Nikah Nama due to some pressure, duress or coercion; that when fraud was not specified in the pleadings, both the courts below rightly disbelieved the said plea of the petitioner; that the case-law, referred by learned counsel for the petitioner, is inapplicable due to peculiar facts and circumstances of the present case inasmuch as in the case of Matloob Hussain (Supra) the Apex Court of the country has held that where the thumb impression of the bride was obtained after abduction mere signing or thumb-marking the Nikah Nama was inconsequential and marriage between the parties could not be held valid. While concluding his arguments, learned counsel representing respondent No.3 has drawn attention of the court towards the alleged unethical material being telecasted by different Media Houses ruining our social threadbare with the prayer that this court should take note of such acts while issuing direction to the relevant authorities to control such contents which encourage run-away marriages and disintegration of our family system. In support of his contentions, learned counsel has relied upon the cases reported as Notice to police Constable Khizar Hayat son of Hadait Ullah on account of his false statement (PLD 2019 S.C. 527), Muhammad Idrees and others v. Muhammad Pervaiz and others (2010 SCMR 5), Muhammad Sharif v. Additional District Judge and others (2007 SCMR 49), Allies Book Corporation through L.Rs. v. Sultan Ahmad and others (2006 SCMR 152), Ghulam Nabi v. Additional District Judge, Jhelum and 47 others (2001 SCMR 683), Jamia Mahmoodia Masjid through its Nazim v. Additional Commissioner (Revenue), Multan Division and 2 others (1995 SCMR 1243), Ameena Haq v. Rab Nawaz Khan, etc. (PLJ 2018 Lahore 1088), Muhammad Ejaz and 18 others v. Noor Khan and 3 others (PLJ 2018 Lahore 11), Zahur Ahmad through L.Rs. and others v. Pakistan Cargo Services (Pvt.) Limited through Chief Executive and 4 others (2017 CLC 1032), Wahid Bakhsh and others v. Ameer Bakhsh and others (2015 CLC 1387), Mst. Gulshan Parveen v. Amar Safeer Khan and 10 others (2014 CLC 397), Dildar Hussain alias Dibar v. Judge Family Court, Sub-Divisional Courts, Tehsil Chichawatni and another (2014 MLD 1388), Asmatullah v. Allah Nawaz and others (2007 MLD 1329), Mst. Safia v. Mst. Bibi and 14 others (2005 MLD 646), Mst. Kausar Perveen v. Additional District Judge, Chichawatni, District Sahiwal and another (2000 YLR 577), Muhammad Riaz v. Mst. Noor-ul-Islam and 2 others (1998 CLC 1036) and Riasat Ali and 9 others v. Rahim Bakhsh and others (1992 CLC 2193). 4. While exercising his right of rebuttal, learned counsel for the petitioner contends that availability of CNIC and address of respondent No.3 with the petitioner was natural as she collected the same from the of Nikah Nama forged by him, thus said fact alone cannot be used to believe that valid Nikah was solemnized between the parties; that non-appearance of the petitioner in the witness box, in person, was not fatal as she had the option to appear through attorney in terms of Section 18 ibid; that mala-fide on the part of respondent No.3 is manifest from the fact that instead of reading evidence in entirety, he has relied on piecemeal evidence suitable to him; that the alleged filing of complaint by the petitioner at Tandlianwal and recording of her statement on the same day speaks volumes about mala-fide conduct of respondent No.3; that as according to respondent No.3 the petitioner was available at Burewala at the relevant time, he could conveniently manage filing of the complaint at Burewala and attestation of her affidavit at the said place but filing of complaint at Tandlianwala and attestation of the affidavit there speaks volumes about his fallacious claim; that reliance of respondent No.3 on cordial relations between the parties as classm ates cannot be used as substitute of valid Nikah Nama for the reason that development of intimacy between the class fellows in routine is natural; that the Nikah Khawan, while giving evidence in the year 2017, admitted that he never seen the petitioner till making of his statement before the learned Trial Court; that in his affidavit-in-evidence, DW-4 stated that he was only
---
## Page 6
known to respondent No.3, thus, the alleged signing of Nikah Nama by the petitioner before him is inconsequential; that though during proceedings before the learned Trial Court respondent No.3 produced audio script but when the petitioner asked for its forensic analysis he managed its removal from the court record; that as a matter of fact all the formalities were completed by the Nikah Khawan on telephone; that according to the law laid down in the case of Matloob Hussain (Supra) when there is no relative of the bride available at the time of Nikah her will cannot be considered as free; that after disowning contents of Nikah Nama by the petitioner, onus was on respondent No.3 to prove execution of valid Nikah but he miserably failed to discharge said onus; that in the case of Mst. Ramzan Bibi v. Additional District Judge and others (1995 CLC 1506) it has been held that when there is nobody identifying the bride, marriage is invalid. In addition to his oral submissions in rebuttal, learned counsel for the petitioner has also filed written arguments in rebuttal with the contentions that the petitioner only came to know about the preparation of alleged Nikah by respondent No.3 on 12.12.2014 when the Bailiff of the Court raided her house pursuant to order passed by the Court in a habeas corpus petition filed by respondent No.3; that mala fide on the part of respondent No.3 is evident from the fact that he used scandalous language in the written statement just to malign the character of the petitioner; that since as per section 18 ibid the petitioner had the option either to appear herself or through an attorney, the objection raised by learned counsel for respondent No.3 in that regard is ill-founded; that sinister efforts on the part of respondent No.3 to malign the petitioner's character are evident from the fact that during the course of evidence, questions damaging the character and repute of the petitioner were put to the PWs; that when DW-4 admitted that there was cutting on the time mentioned in his affidavit-in- evidence with the further clarification that there was no mention of specific place where Nikah was performed, the suit filed by the petitioner was to be decreed as prayed for; that admission on the part of Nikah Khawan that Nikah Nama was not filled in by him rather the same was completed by his son speaks volumes about his mala fide conduct; that admission on the part of Nikah Khawan that Nikah Nama available in the UC was not attested by the competent authority rather it bore only stamp of the competent authority also supports the version of the petitioner that no valid Nikah was solemnized between the parties; that DW-5 failed to mention in his statement that the cursory statement in the complaint filed at Tandlianwala was made in his presence; that admission on the part of Muhammad Aslam (DW-2) that he never seen the parties as husband and wife in Burewala belies the claim of respondent No.3 that valid marriage was contracted between the parties; that amendment in the written statement by respondent No.3 after completion of cross-examination on PWs in the suit for jactitation of marriage stands proof of the fact that the same was only an after-thought; that stance of PW-1 that the petitioner was missing two weeks prior to 12.12.2014, when Bailiff raided house of the petitioner, cannot be used against her for the reason that he (PW-1) was not permanent resident of said house rather he came from outside at the time of raid by the bailiff thus he was not aware about the whereabouts of the petitioner; that while responding to a suggestion, Naseer Ahmad (PW-2) clarified that on 12.12.2014, the petitioner was with her maternal aunt at Muslim Town, Lahore; that simple snaps, which can be edited by anybody, cannot be relied upon to establish a valid Nikah. 5. I gave anxious hearing to the learned counsel for the parties on multiple dates in addition to going through the documents, appended with this petition, as well as the case-law, cited at the bar. 6. A perusal of the plaint shows that the petitioner prayed for jactitation of marriage on the grounds that nobody was appointed as Wakeel on behalf of the petitioner-plaintiff; that the witnesses of the marriage were not related to the petitioner-plaintiff; that the petitioner never gave her consent for Nikah; that signatures and thumb impressions of the petitioner-plaintiff…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.