' SYED HAMID ALI SHAH, J.---Petitioner brought misfortunes with her, since her birth. Her father divorced her mother, when she was just two years of age. She was, statedly, brought up in circumstances, where she remained deprived of parental love. When she stepped into adulthood, miseries were there to welcome her. She, at the age of sixteen (16), was wedded to one Zaffar.
Abbas s/o Haq Nawaz. Her Nikkah was registered at Rangpur on 5-7-2001 (Exh.P-5). She in her statement as P.W.1 terms this marriage as "Kitabi Nikah". She has also stated that her first marriage ended at divorce without consumation.
2. A tug of war between her father and grandfather, brought two claimants of her matrimony.
Respondent No, 1 (Muhammad Hussain) claims the petitioner as his wife, on the basis of Nikkah, which took place on 30-3-2003 (Exh.D-1). The presence of Irshad Begum (parental aunt of petitioner's father), Mst. Khalida (cousin), Ghulam Abbas (grandfather), participating in the ceremony of marriage, is seen from photographs, which are Marks D-2, D-3 and D-4. Petitioner had recognized them in photographs, in the course of her cross-examination as P. W.1 petitioner, after registration of Nikkah (Exh.D-1) approached various Courts, claiming herself to be the wife of respondent No,
1. Criminal complaint (Exh.D-2) reflects that she acknowledged her marriage with respondent No,1 and complained about her father, who came to her house to kill her, Exh.D 3 is her statement on oath, regarding same incident. She admitted her Nikkah with respondent No,1 in the petition filed before learned Sessions Judge, Khanewal.
3. Her fate took another turn, she made a statement in this Court in a habeas corpus petition and was allowed by this Court to join her father. She, influenced with the changed circumstances, filed suit for jactitation of marriage against respondent No,1, denied her matrimonial relationship with him and claimed that her Nikkah was outcome of coercion, during her abduction and that she never consented to the marriage. It was also claimed by her that she is wedded wife of one Bashir Ahmed. Respondent No,1 on the other hand, filed suit for restitution of conjugal rights. Both these suits were consolidated on 7-6-2005 and three consolidated Issues were stuck by the Family Court.
Learned Judge, Family Court, after recording of evidence and on conclusion of trial, decreed the suit for restitution of conjugal rights and dismissed the suit for jactitation of marriage, vide judgment dated 4-5-2006. Appeal filed by the petitioner met the fate of dismissal on 15-1-2008, hence this petition.
4. Respondent No,1 in various proceedings, had admitted that the petitioner had conceived and was carrying two months' baby in her womb. Unfortunately, she joined her father, without confirmation of her pregnancy out of her cohibition with respondent No,
1. Now petitioner claims that two issues have born out of her wedlock with Bashir Ahmad.
5. Learned counsel for the petitioner has contended that petitioner is performing her matrimonial obligations towards her husband and two children have born out of this wedlock. It is contended that statement of spouse/wife, is of vital importance and her statement cannot be taken lightly.
Courts below have not given due weight-age to the statement of petitioner. The factum of abduction and statedly false Nikkah on the day of abduction, speaks volume about the invalidity of Nikkah. Learned counsel added that documentary evidence of the petitioner was not considered and appreciated by the Courts below. Learned counsel submitted that the petitioner's statement recorded before this Court on 3-6-2003 in W. P .No .2096-2003 , proves the case of the petitioner, for jactitation of marriage. The solitary statement of the petitioner that she was forced to marry respondent No,1 is enough for decree of jactitation of marriage. Any other statement of the contrary as to the statement, which was recorded, when the petitioner was in the custody/control of respondent No,1 has no value.
6. Heard learned counsel for the petitioner and record perused.
7. Respondent No,1 proved his Nikkah with the petitioner, by bringing in the witness box, Secretary Union Council (D.W.1), Ghulam Abbas/grandfather of petitioner (D.W.2), who for the purpose of seeking consent, was appointed as `Wakeel; Sajid Hussain (DW-4); was witness to Nikkah, and admitted his signatures as Exh.D 1/1, Muhammad Asghar (D.W.5), admitted his signatures on Nikkah Nama as Exh.D.W.1/2, Nikkah Registrar (Munir Ahmad) D.W-6, also admitted his signatures on Nikkah Nama as D.W. 1/3 Nikkah Khawan, Syed Shafqat Hussain Shah (D.W.7), had admitted his signatures on Nikkah Nama as Exh.D-1/4.
These witnesses deposed that Nikkah was solemnized in their presence and petitioner had consented to marriage with her free-will. The photographs of petitioner in her bridal dress, reflect that she was ready for marriage. It has not been stated in the pleadings or in the oral testimony that the petitioner was forced by respondent No,1 and others to wear bridal dress. Consent of marriage/Nikkah according to Hadaya by Hamilton can be conveyed through three different manners namely express words or silence or smile, while dissent/denial can be conveyed through express words or crying. The evidence available on record neither proves the abduction nor dissent/denial of marriage at the time of Nikkah. The denial is material only when it is made at the time of Nikkah. To determine the legal nature of Nikkah, one must look to the time, at which it was entered into and not to the subsequent time. Petitioner from her disputed Nikkah, till joining her father approached various courts and fora and pleaded genuineness of her Nikkah. Nikkah Nama is a public document and Nikkah Registrar is a public officer. A certified copy of Nikkah Nama produced in evidence, as has been held by the Honourable Supreme Court in the case of "Mst.
Zubaida Bibi and others v. Mst. Majeedan and others" 1994 PSC (SC Pak) 200, will hold the ground unless appropriate rebuttal is forthcoming from the other side. Petitioner's father approached various fora against respondent No,1, claiming alleged abduction of petitioner and had not stated a single word about petitioner's marriage with Bashir Ahmad. Petitioner's father lodged a criminal complaint qua the abduction of the petitioner. A list of witnesses (Exh.P-4) was filed, where Bashir Ahmad is mentioned at serial No 4. Here again he (Bashir Ahmad) has not been described as husband of abductee. Marriage of petitioner, with respondent No,1 has not been proved.
9. The petitioner, in order to prove her marriage with Bashir Ahmad, entered into witness box herself as P.W.1, while her father got his statement recorded as P.W.2. Each has failed to state necessary particulars of marriage/Nikkah with Bashir Ahmad. They have neither stated names of the witnesses of Nikkah nor the witnesses of Nikkah were brought to the witness box. Nikkah Nama has also not been produced. Petitioner stated as P.W.1 that her Nikkah with Bashir Ahmad was duly registered, but Nikkah Nama was not produced in evidence. It gives rise to adverse inference against the petitioner. Withholding of material, which party claims to be in it's possession, undoubtedly, is a concealment and can be used against such party.
10. According to Syed Amir Ali (Muslim Law Volume II, Page 330), the Muslim jurists have consents that Muslim woman is married to two person successively, by her father and by her other guardian or when two men claim to be married to one women, the prior marriage is valid, while other would be dissolved without divorce or decree. But when it cannot be known which was prior, both would be void. When marriage is consummated, validity to marriage is proper course on public policy.
Respondent No,1 took a firm stand that petitioner out of her wedlock, had conceived and was C carrying a baby of two months in her womb, when she joined her father. No effort was made to confirm the pregnancy through medical evidence.
11. Marriage under compulsion or acceptance pronounced without any intention to contract of marriage cannot be taken lightly. Muslim jurists, in ordinary circumstance, lean in favour of validity of marriage entered under compulsion. This rule is based on tradition. The Apostle of God (peace be upon him) said:-- ' "There are three things which whether done in joke or in earnest, shall be considered as serious and effectual, marriage, divorce and taking back."
11. Courts below in this background, had rightly held that case of petitioner, as set out in the plaint, is fabricated and false story has been cooked up at the instigation of her father. The Courts have rightly found that in the absence of any witness to support and prove abduction petitioner has failed to make out a case on that score.
12. Concurrent findings of two Courts below, do not suffer from the defect of misreading or non- reading of evidence. The Courts thoroughly appraised the evidence, available on record and with cogent reasons, decided the matter. Judgments impugned in this petition, are devoid of any illegality or legal infirmity, thus the same are not open to exception in the constitutional jurisdiction of this Court.
13. This petition has no merit and is accordingly dismissed in limine.