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Official Citation: 2024 LHC 1315
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-04-05
Parties: Muhammad Siddique vs Rabia Rafique, etc.
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-04-05, officially reported as 2024 LHC 1315. In this matter between Muhammad Siddique and Rabia Rafique, etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024LHC1315
Court Name: Lahore High Court Judge(s): Ahmad Nadeem Arshad Title: Muhammad Siddique vs Rabia Rafique, etc. Case No.: Civil Miscellaneous No.07-C of 2023/BWP Date of Judgment:2024-04-05 Reported As: 2024 LHC 1315, PLJ 2024 Lahore 584 Result: Application Dismissed
JUDGMENT
JUDGMENT AHMAD NADEEM ARSHAD, J. Through this judgment I would like to decide the instant application under Section 12(2) of the Code of Civil Procedure, 1908 (C.P.C.) as well as application titled "Irfan Azam, etc. V. Rabia Rafique, etc." (C.M. No.8-C of 2023) filed under Section 12(2) C.P.C. whereby the applicants have called into question the judgment & decree dated 19.10.2020 passed by this Court in Civil Revision No.823 of 2018/BWP titled "Irfan Azam, etc. V. Rabia Rafiq, etc." on the grounds of fraud and misrepresentation. However, for further discussion Muhammad Siddique applicant of C.M. No.7-C of 2023 be referred to as the applicant No.1, the applicants of C.M. No.8-C of 2023 be referred to as the applicant No.2. Whereas, Rabia Rafique (Rabia Imran) be referred to as the respondent No.1 and Ali Imran be referred to as the respondent No.2. 2. Facts in brevity are that the applicant No.2 instituted a suit for declaration whereby they sought declaration to the effect that they are the only legal heirs of deceased Imran Azam whereas respondents No.1 & 2 are neither his legal heirs nor entitled to get inheritance from his moveable and immoveable properties and only they are entitled to get inheritance as per their Sharia shares from the agricultural land as well as the amount available in the bank accounts of deceased. They also sought a declaration that if respondents No.1 & 2 have prepared any documents fraudulently to show themselves as the widow and son of the deceased, the same are against the facts & law, forged and fictitious, a result of collusiveness and having no effect upon their rights, void-ab-initio and liable to be cancelled. As a consequential relief, they prayed for the issuance of permanent injunction that respondent No.1 namely Mst. Rabia Imran alias Rabia Rafiq may be restrained permanently from posing herself as the widow of Imran Azam deceased and posing respondent No.2 as his son; that they also be restrained from claiming any right over the moveable and
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immoveable properties of the deceased, from withdrawing amounts from the bank accounts and from getting incorporate inheritance mutation in their favour. Respondents No.1 & 2 resisted the suit by filing a contesting written statement. Besides this, they also instituted their independent suit for declaration and permanent injunction against the applicant No.2 and sought a declaration that the respondent No.1 and Naz Bibi (applicant No.2 of C.M No.8-C) being widows and respondent No.2 being son of Imran Azam are owners in possession of the property (fully described in the plaint) being legal heirs according to their legal and Shari shares and challenged the validity and legality of oral sale mutation No.652 dated 30.06.2011 whereby land measuring 699 Kanals 06 Marlas was allegedly alienated to Irfan Azam (applicant No.1 of C.M. No.8-C) from Imran Azam deceased. Said suit was contested by the applicant No.2. 3. The learned Trial Court consolidated both the suits, framed consolidated issues out of the divergent pleadings of the parties and invited them to lead evidence in support of their rival contentions. After recording evidence of the parties, pro & contra, oral as well as documentary, partially decreed the suit of the applicant No.2 by declaring Naz Bibi (applicant No.2 of C.M No.8-C) and Rabia Rafiq (respondent No.1) as widows and Ali Imran (respondent No.2) as son of deceased Imran Azam being his legal heirs, whereas, suit of respondents No.1 & 2 was decreed in toto through consolidated judgment & decrees dated 15.02.2016. The applicant No.2 challenged said judgment and decrees by preferring an appeal which was dismissed by the learned Appellate Court vide judgment & decree dated 19.09.2018. Feeling aggrieved, they filed a revision petition (C.R. No.823 of 2018/BWP) before this Court which was also dismissed via judgment & decree dated 19.10.2020. Being dissatisfied, the applicant No.2 filed C.P.L.A No.1719-L of 2020 before the august Supreme Court of Pakistan and vide order dated 04.02.2021 leave was refused and their petition was dismissed. The applicant No.2 filed review petition No.Nil of 2021 in C.P.L.A No.1719-L of 2020 which was dismissed by the august Supreme Court of Pakistan vide order dated 27.01.2023. During the pendency of the Review Petition, applicant No.1 namely Muhammad Siddique filed the application under Section 12(2) C.P.C. (C.M. No.7-C of 2023/BWP) against respondents No.1 & 2 by impleading the applicant No.2 as rest of the respondents and after dismissal of the Review Petition, the applicant No.2 filed an application under Section 12(2) C.P.C. (C.M. No.8-C of 2023/BWP) against the respondents No.1 & 2 by impleading the applicant No.1 as respondent No.3. The applicant No.1 and the applicant No.2 in their applications under Section 12(2) C.P.C. challenged the judgment and decree dated 19.10.2020 passed in Civil Revision No.823 of 2018/BWP on the grounds of fraud and misrepresentation. 4. The applicant No.1 in his application maintained that he got married to respondent No.1 on 15.06.2006 and as a result of said wedlock respondent No.2 was born on 14.12.2006 and this fact is evident from the birth certificate of respondent No.2, whereas, respondent No.1 got prepared forged documents wherein the date of birth of respondent No.2 was shown as 14.12.2010 instead of 14.12.2006; that respondent No.1 concealed ex-parte judgment and decree whereby she got divorce from him on the basis of Khula and also concealed said fact at the time of her marriage with Imran Azam, therefore, the judgment and decree of this Court is not sustainable as having been obtained by practicing fraud and mis-representation with the Court. 5. The applicant No.2 in his application maintained that Aneela Bibi (applicant No.4 of C.M. No.8-C of 2023) lodged a complaint in the year 2020 against respondent No.1 wherein after inquiry it was declared that respondent No.1 after the death of Imran Azam with the collusion of Molvi Muhammad Gull Gohar (Nikah Khawan), Abdul Rauf (Nikah Registrar) prepared ante-dated and forged Nikahnama with Imran Azam while making his forged signatures; that as a result of inquiry report, F.I.R No.140/2021 dated 29.06.2021 was registered against respondent No.1 and her co- accused wherein she was arrested and challan was sent to the Court; that respondent No.1 admitted her Nikah dated 15.02.2006 with the applicant No.1, therefore, from this wedlock
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respondent No.2 was born and his date of birth was recorded as 14.12.2006 in the Union Council Ahmadpur Lamma, Rahim Yar Khan which falsifies her claim that respondent No.2 is son of Imran Azam; that respondent No.1 failed to prove her divorce from respondent No.3 as she could not bring on record any certificate of divorce issued by concerned Union Council at Faisalabad; that respondent No.1 prepared a forged birth certificate of respondent No.2 from Filed Office No.12, Behboob Qureshian, Rahim Yar Khan wherein date of birth of respondent No.2 was shown as 14.12.2010 in order to connect his relation with Imran Azam; that respondent No.1 filed an application on 21.05.2013 for correction of date of birth of respondent No.2 in the record of U.C. Ahmedpur Lamma, Rahim Yar Khan which is not decided so far; that respondent No.1 refused to get DNA test of respondent No.2 during the inquiry before the Deputy Commissioner; that respondent No.2 was not son of Imran Azam rather he was born from the marital tie of respondent No.1 and the applicant No.1; that respondent No.1 prepared her fake Nikahnama with Imran Azam as well as birth certificate of respondent No.2; that respondent No.1 contracted Shari Nikah with applicant No.1 on 15.02.2006 and got it registered on 13.09.2006; that respondent No.1 also contracted marriage with one Makhdoom Ahmad Mahmood on 23.07.2002 and got divorce on 18.09.2004 and out of said wedlock a baby girl Bisma was born which fact was not disclosed by her; that respondent No.1 in her Nikahnamas showed her as virgin lady and concealed her previous Nikah; that she narrated different ages in her respective Nikahnamas; that respondent No.1 secured succession certificate of respondent No.2 against which appeal of the applicant No.2 is pending; that respondent No.1 applied for guardianship of respondent No.2 and the applicant No.1 moved an application for impleading him as a party wherein he claimed the respondent No.1 as his wife because she failed to get divorce certificate from the concerned Union Council; that the above referred facts verified the misrepresentation and fraud played by respondent No.1 who deceitfully concealed her previous marriages with different persons in her suit at all forums during the litigation with them and prayed for setting aside the decree dated 19.10.2020 passed by this Court in C.R. No.823 of 2018 and dismissal of suit of the respondents No.1 & 2 with special costs. 6. This Court vide order dated 02.06.2023 issued notice to the respondents. Notices were also issued to the respondents in C.M No.8-C of 2023/BWP vide order dated 06.07.2023. 7. It is pertinent to mention here that applicant No.1 moved an application (C.M. No.1607 of 2024/BWP) and sought framing of issues and recording of evidence. The applicant No.2 also moved application (C.M. no.1606 of 2024/BWP) whereby they prayed for issuance of a direction to the respondents to file written reply of their application under Section 12(2) C.P.C.. Both the applications have been decided through separate orders. 8. I have heard learned counsel for the parties on the C.Ms and perused the record of C.Ms as well as the record of Civil Revision No.823 of 2018/BWP with their able assistance. 9. From the scanning of the applications and arguments advanced by the learned counsel for the applicant No.1 and the applicant No.2, their main allegations are that respondent No.1 contracted marriage with the applicant No.1 and during the subsistence of said marriage she gave birth to a son (respondent No.2) on 14.12.2006 which is evident from birth certificate brought on record as Annex-A, therefore, respondent No.2 is son of the applicant No.1 rather deceased Imran Azam; that the decree of dissolution of marriage on the basis of Khula was not effective because certificate of divorce was not obtained from the concerned Union Council, therefore, respondent No.1 is still legally wedded wife of the applicant No.1 and said facts were concealed by the respondents No.1 & 2 while obtaining the judgment and decree, hence, committed fraud and misrepresentation with the Court. 10. It is evident from the record that the applicant No.2 instituted a suit for declaration along with permanent injunction against respondents No.1 & 2 on 19.07.2012 by maintaining that they are legal heirs of deceased Imran Azam who died issueless on 27.01.2012 without any male or female issue;
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that a week ago it came to their knowledge that respondents No.1 & 2 made a conspiracy to pose respondent No.1 as widow and respondent No.2 as son of deceased Imran Azam and prepared forged documents in this regard; that neither Imran Azam contracted marriage during his lifetime with the respondent No.1 nor respondent No.2 was born from said wed-lock and sought declaration to the effect that they are the only legal heirs of deceased Imran Azam, whereas, respondents No.1 & 2 are neither his legal heirs nor entitled to get inheritance from his moveable and immoveable properties and only they are entitled to get inheritance as per their Sharia shares from the agricultural land as well as the amount available in the bank accounts of deceased. They also sought a declaration that if respondents No.1 & 2 have prepared any documents fraudulently to show themselves as widow and son of the deceased, the same are against the facts & law, forged and fictitious, result of collusiveness and having no effect upon their rights, void-ab-initio and liable to be cancelled. As a consequential relief, they prayed for the issuance of permanent injunction that respondent No.1 namely Mst. Rabia Imran alias Rabia Rafiq may be restrained permanently from posing herself as a widow of Imran Azam deceased and posing respondent No.2 as his son; that they also be restrained from claiming any right over the moveable and immoveable properties of the deceased, to withdraw amounts from the bank accounts and to get incorporate inheritance mutation in their favour. 11. The respondents No.1 & 2 resisted the suit by filing contesting written statement wherein they took a stance that Imran Azam contracted his first marriage with Naz Bibi (applicant No.2 of C.M. No.8-C of 2023) but remained issueless despite the lapse of a considerable time; that he had an ardent desire to have children, legal heir of his property, hence, he contracted second marriage with respondent No.1; that in this regard Shari Nikah was performed by Qari Nazim in December, 2008; that thereafter deceased Imran Azam got registered the Nikah; that in the light of said marital tie a baby boy namely Ali Imran (respondent No.2) was born on 14.12.2010. Respondents No.1 & 2 also instituted a suit for declaration with permanent injunction wherein they challenged the oral sale mutation No.652 dated 30.06.2011 whereby land measuring 699 Kanals & 06 Marlas was allegedly shown to be sold by Imran Azam to his brother Irfan Azam. The learned trial Court consolidated both the suits and framed consolidated issues. The basic controversy between the parties was as to who are legal heirs of Imran Azam deceased and to resolve said controversy issues No.1 & 3 were framed in the following terms: 1. Whether plaintiffs Irfan Azam etc. are only legal heirs of deceased Imran Azam and as such they are entitled to the decree for declaration for the suit property? OPP Irfan Azam etc. 2. Whether defendants Rabia Imran etc. are also legal heirs alongwith plaintiffs as widow and son of Imran Azam and being so they are entitled to the decree for declaration regarding suit property? OPD Rabia Imran etc. 12. In order to substantiate their version, the applicant No.2 got examined nine witnesses as P.W.1 to P.W.9 and tendered 21 documents as Exh.P.1 to Exh.P.21, whereas, respondents No.1 & 2 produced 13 witnesses as D.W.1 to D.W.13 and placed on record 34 documents as Exh.D.1 to Exh.D.33 and Mark-A. 13. Perusal of the statements of PWs reflects that they merely denied the factum of Nikah of Imran Azam with Rabia Imran and birth of their son through their oral evidence. The applicant No.2 did not produce any documentary evidence in support of their version. 14. However, to substantiate their stance, respondents No.1 & 2 produced original Nikahnama as Exh.D.1 and to prove said Nikahnama they produced Abdul Rauf Nikah Registrar as D.W.1, Molvi Muhammad Gull Gohar Nikah Khawan as D.W.3, Muhammad Sajid and Zafar Iqbal witnesses of the Nikah as D.W.4 and D.W.5. Both D.W.4 and D.W.5 also deposed that they are witnesses of Shari Nikah performed between Imran Azam and Rabia Imran. To prove the factum of birth of Ali Imran during the marital ties between Imran Azam and Rabia Imran, they got examined Dr. Shazia Majid Khan Gynecologist as D.W.7. She deposed categorically that she conducted a cesarean operation upon
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respondent No.1 as a result of which respondent No.2 was born on 14.12.2010. She produced the birth certificate of minor as Exh.D.7. Respondents No.1 & 2 also produced Muhammad Arshad Khan Sales Consultant EFU Company as D.W.10 who produced a copy of the Insurance Policy as Mark-A. In the said policy Imran Azam nominated his son namely Ali Imran as his nominee. Muhammad Azam Azad P.W.4 during cross-examination admitted that Imran Azam had obtained an insurance policy from EFU Insurance Company. Tariq Hussain, Project Manager, Ramay Developers appeared as D.W.11 and produced the original record of allotment of the plot in the name of Irfan Azam (applicant No.1 of C.M. No.8-C of 2023). Copy of said record was brought on the record as Exh.D.8 wherein said Irfan Azam himself nominated Ali Imran son of Imran Azam as his nominee. It is also evident that Muhammad Azam Azad P.W.4 was surety in the said allotment letter. Said document was prepared on 24.05.2012 and bears the thumb impression of Irfan Azam. A copy of CNIC of Irfan Azam as well as a copy of CNIC of his wife Ruqiya Bibi was also attached with the said application of allotment. NADRA certificate was produced as Exh.D.9 wherein Ali Imran is shown as son of Imran Azam and Rabia Imran. An application addressed to Administrator Union Council G-7 Ahmadpur Lamma from Irfan Azam dated 15.06.2012 was available as Exh.D.32. In the said application, Irfan Azam maintained that the name of his nephew namely Ali Imran s/o Imran Azam is duly entered in the record of Union Council and prayed for issuance of its copy. 15. The applicant No.2 failed to rebut the oral as well as documentary evidence of respondents No.1 & 2, therefore, the learned Trial Court keeping in view evidence available on the record declared that respondent No.1 namely Rabia Imran was legally wedded wife of Imran Azam and from their wedlock a son namely Ali Imran was born on 14.12.2010. Said findings remained intact upto august Supreme Court of Pakistan. 16. The applicant No.1 in his application admits that respondent No.1 got divorce on the basis of Khula through a decree of the Court dated 31.03.2008, however, he claims that she is still his wife as she failed to obtain the certificate of effectiveness of divorce from the Union Council. The decree of Khula obtained through Court would not fall under Section 07 of the Muslim Family Laws Ordinance, 1961 which deals with an ordinary divorce given by a husband. The matter would, however, fall under Section 08 of the Ordinance ibid which deals with other types of divorce or dissolution of marriage. For ease, said section is reproduced as under: Dissolution of marriage otherwise than by talaq. Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq, the provisions of section 7 shall, mutatis mutandis and so far as applicable, apply. Section 08 of the Ordinance is a parallel provision to Section 07. The latter provides for the mechanism as to how the divorce by 'any man' who wishes to dissolve the marriage would become effective; while the former provision is not confined to Talaq by 'any man'. Essentially it relates to other forms of dissolution of marriage. Said Section postulates two situations; one, divorce by a woman who has right of Tafweez and the other, when the wife sues for dissolution of marriage on other grounds including that of Khula. In cases of dissolution otherwise than when it is pronounced by a man Section 07 with necessary changes would apply. With regard to the dissolution of marriage as mentioned in Section 8 "the provision of Section 7 shall mutatis mutendis and so far as applicable, apply". Section 08, clearly places a condition on the application of Section 07 mainly that it would apply "so far as applicable" and that also with necessary changes (mutatis mutendis). Islamic Law does not permit revocation of dissolution of marriage effected through Khula. Section 07 has not changed the Islamic Law. Dissolution of marriage under the Family Courts Act, 1964 once having attained finality does not make it ineffective merely on the ground that notice of decree for dissolution of marriage was not given and certificate of effectiveness of said divorce was not issued by the concerned Union Council. For
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the sake of arguments, if it is presumed that respondent No.1 failed to give notice of the decree of dissolution of marriage, then it related to the question of contravention of the provision of Sub- section 01 of Section 07. Sub-section 02 of Section 07 provides that whosoever contravenes the provisions shall be sentenced to imprisonment for a term which may extend to one year or with a fine which may extend to 5000 rupees or with both. From the above discussion, it is crystal clear that non sending of a copy of decree after obtaining Khula from the Court under Sub-Section 01 of Section 07 or failure to obtain the certificate can at the maximum entail penal consequences but cannot invalidate the decree of dissolution of marriage on the basis of Khula. 17. During the course of arguments, learned counsel for the applicant No.1 argued that the consideration of Khula was not paid, therefore, the marriage of respondent No.1 with the applicant No.1 has not dissolved. Suffice is to say that where marriage was dissolved by way of Khula imposing a condition on wife first to return the benefits of husband to him, non-fulfillment of that condition by wife, would not render decree for dissolution of marriage on the basis of Khula as ineffective because imposition of such condition merely would create civil liability and decree for dissolution of marriage passed by way of Khula, could not be considered as dependent on requiring wife to fulfill condition first. The decree of dissolution of marriage, on the basis of Khula, even though made conditional upon the return of the benefits, would operate to dissolve the marriage, when it is passed and the effect thereof would not be postponed till the benefits were returned. Reliance in this regard is placed on the case of "DR. AKHLAQ AHMED V. MST. KISHWAR SULTANA & OTHERS" (PLD 1983 SUPREME COURT 169), where it was observed as under: "It was held in the case of Moonshee Buzul-ul-Raheem v. Luteefutoon Nisa (8 Moore's Ind. App. 379) that non-payment of stipulated consideration for Khula` does not invalidate the dissolution of marriage by Khula`. Once the Family Court came to the conclusion that the parties cannot remain within the limits of God and the dissolution of marriage by Khula` must take place, the inquiry into the terms on which such dissolution shall take place does not affect the conclusion but only creates civil liabilities with regard to the benefits to be returned by the wife to the husband and does not affect the dissolution itself." 18. The applicant No.1 also claims that respondent No.2 is his son. In support of his version, he relied upon birth certificate issued by Union Council Ahmadpur Lamma wherein the date of birth of respondent No.2 is written as 14.12.2006. Although, in the said certificate, the name of the child was written as Ali Imran but the name of his father was written as Imran Azam and mother's name was written as Rabia Imran. Said entry was made on 10.09.2011. Despite the fact date of birth was written in the certificate as 14.12.2006 but it seems to be a clerical mistake as no corroborative material is available in this regard. Said date of birth does not co-relate and support the version of the applicant No.1 as the date of marriage mentioned in the Nikahanama of the applicant No.1 with respondent No.1 was 13.09.2006. Although, he took a stance that his Shari Nikah was solemnized with respondent No.1 in the month of February, 2006 but said fact was not supported through any other piece of evidence. Contrary to that, respondents No.1 & 2 proved their stance through overwhelming evidence and the competent Court of law after discussing the whole evidence declared that respondent No.2 is son of Imran Azam who was born on 14.12.2010. This Court while deciding the Civil Revision in para No.8 of the judgment also observed as under: "It evince from the record that birth of child took place in Hamdani Hospital Sheikh Zaid Road, Rahim Yar Khan, Pakistan on 14th December, 2010. To this effect, Dr. Shazia Majid Khan, Gynecologist, Hamdani Hospital, Sheikh Zaid Road Rahim Yar Khan (DW-7) was examined who stated that she is scribe of birth certificate (EX.D-7). It is apparent therefrom that in the birth certificate parentage of the minor child is clearly mentioned." The august Supreme Court of Pakistan while dismissing the C.P.L.A also observed as under:
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"We have heard the learned counsel for the parties. We have noticed that the learned Courts below have rightly appreciated the evidence produced by the parties available on the file. We are of the view that there is no need of reappraisal, even the argument of reappraisal of evidence by the learned counsel is not sustainable. There are findings of facts by the three Courts of competent jurisdiction against the petitioners. Learned counsel for the petitioners failed to make out a case for grant of leave, consequently, same is refused and this petition stands dismissed." 19. It is…
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