' Through this writ petition, judgment and decree, dated 21-4-2004, passed by learned Additional District Judge, Karor District Layyah has been challenged, which has upheld the judgment and decree dated 9-12-2003 of learned Judge, Family Court, Karor in a suit titled Zohra Kausar v. Ibrar Hussain suit for jactitation of marriage, filed by the present petitioner.
2. Brief facts of the case as found from the pleadings and narrated by the learned counsel, are that the petitioner had filed a suit for jactitation of marriage challenging the validity of Nikahnama dated 25-8-2001, having allegedly been performed with Ibrar Hussain, defendant/respondent No,3.
As per averments in the plaint, Ibrar Hussain, defendant/respondent No,3 was a person of bad character and A had abducted the petitioner and was claiming wrongly the petitioner to be his wife; that no marriage was performed by the petitioner with Ibrar Hussain with her own free will and consent. In the alternative, a prayer for grant of decree for dissolution of marriage was also sought.
3. The suit was contested by the defendant by filing written statement. Issues were framed and the parties had produced their evidence. After appraisal of evidence, learned Judge, Family Court held that Nikah dated 25-8-2001 performed with Ibrar Hussain defendant was a valid Nikah while the other Nikah alleged to have been performed by the petitioner/plaintiff on 13-7-2000 with Dilbar Hussain was a fake affair to counter the above Nikah, and that no Nikah was performed by Mst.
Zohra Kausar, plaintiff with the aforesaid Dilbar Hussain. Learned Judge, Family Court, however, granted decree for dissolution of marriage on the basis of Khula to the petitioner/plaintiff. The judgment and decree passed by the aforesaid learned Judge, Family Court was disputed before the learned Additional District Judge, who dismissed the appeal on 20-4-2004, after confirming the findings of the learned trial Court, hence this writ petition.
4. Learned counsel appearing on behalf of the petitioner submits that both the learned Courts below have not appreciated the evidence produced by the petitioner in accordance with the principles settled for the appraisal of the evidence. It has further been argued by the learned counsel that in Exh.D.5, the plaint of the suit titled Saima Sherazi v. Shahid Hussain displays the wrong address and unknown parentage of the defendant, which proves the version of plaintiff that above mentioned suit was never filed by the petitioner because Dilbar Hussain Shahid was the real cousin of the plaintiff/petitioner and it was not believable that she could not give out the correct address of the aforesaid defendant, while filing the suit. This fact, as per learned counsel shows that the suit was not filed by Mst. Saima Sherazi but was got filed by respondent No,3.
5. The hearing of arguments and perusal of the record have brought me to conclude through the following statement.
6. The examination of the judgments of both the learned Courts below with minute details have demonstrated that the Courts below have appreciated the evidence on the record in accordance with the principles settled for the appreciation of evidence. Violation of any rule of evidence has not been pointed out by the learned counsel. Apart from this fact, it may be kept in mind that this is a case of Family Court wherein section 17 of the West Pakistan Family Courts Act, 1964 have barred the application of Qanun-e-Shahadat Order, 1984 to such cases. As learned Courts below have rendered concurrent findings of facts, so, in the writ petition, reappraisal of the evidence cannot be undertaken, unless it is shown that the Court have deviated from the right legal and just path of appreciation and the decision having resulted into clear miscarriage of justice.
7. The validity of Nikah of the petitioner with Ibrar Hussain has been proved on the basis of overwhelming evidence brought on the record in the form of various documents and oral statements of witnesses produced by respondent No,3. The petitioner had appeared before learned Civil Judge/Judicial Magistrate on 3-6-2002 and had admitted before him, not only the correctness of the disputed Nikah but its solemnization with her free-will and consent which was being contended otherwise here in the present litigation, vide Exh.D.4. Multifarious and multiform documents have proved the validity of Nikah. An affidavit dated 25-2-2002 (Mark D.A.) which was sworn by the petitioner and was attested by the Oath Commissioner as well as by Judicial Magistrate on 28-7-2002 was also brought on the record of the case. The suit for jactitation of marriage filed against Dilbar Hussain has also proved that marriage with Ibrar Hussain was validly performed (Exh.D.5) and there was no coercion or duress upon the petitioner while the nuptial contract between the present parties was entered into. It may be pointed out that the aforesaid suit was filed, when the plaintiff was lodged in Dar-ulAman at Bahawalpur and no compulsion was being exerted upon her from any quarter. As regards to the non-mention of the parentage of Dilbar Hussain, the possibility of mistake by the clerk of counsel or typist made at that stage cannot be ruled out. To controvert the fact that the aforesaid suit was not filed by the petitioner, she could easily produce the learned Advocate, who had filed the aforesaid suit on her behalf but no such effort was made by her. There is yet another documentary evidence which can be seen on the file in the shape of certified copy of Writ Petition No,3775/Q of 2002, which was filed by the petitioner herself alongwith an affidavit (Mark D.C.) in the Lahore High Court, Multan Bench, in which she had admitted the performance of Nikah with Ibrar Hussain, with her own free consent. Another convincing proof showing the validity of marriage is a letter by the petitioner to her husband, in which she had not only acknowledged the factum of marriage but the parentage of girl born from her womb as a consequence of this marriage vide Exh.D.2.
8. Another material facet of this case, which has got a far-reaching impact upon the fate of their daughter, is the question of correct G parentage of the child. At this stage, the respondent No,3/the defendant, the father has owned this child to be an offspring of this marriage but the findings of this Court, if reversed, would create an atmosphere of adverse effect on the parentage of the child.
The child would suffer a great loss as she would be given a name of begotten child in perpetuation due to no fault of her, which odium would not be compensated by any other manner, method or stratagem. Courts have always shown reluctance to such an interpretation of contracts of matrimonial H existence, which would stigmatize a child to be the result of fornication although was born from lawful union. Vide Manzoor Hussain v. Zahoor Ahmad and 4 others 1992 SCM R 1191.
Law discourages decision based upon vice and immoral versions, vide Major Sher Afzal v. Shamim Firdaus and another PLD 1980 SC 228.
9. Petitioner's admission in her statement that she had been wandering from one place to another, especially when the petitioner had many chances of open space and place, to flee and return to her parent's house, but her preference to remain in the state of continuous cohabitation for a period of more than one and a half year is itself the best proof of existence of lawful marriage. For this proposition the following rulings are referred:
(i) Chandu Lal v. Bibi Khatemonnessa AIR 1943 Cal. 76,
(ii) Chockalingam v. v. Sami Battar AIR 1925 Mad. 426
(iii) Bashir Ahmad and others v. Ilam Din and others PLD 1988 SC 8.
10. So, all the documents and oral evidence have gone to prove that learned Courts below after having taken pains, have correctly decided the case in favour of respondent No,3 and the judgments passed by learned Courts are the result of correct evaluation of the evidence. No useful material has been produced by the petitioner to prove her case otherwise, so the writ petition is dismissed in limine.