' This constitutional petition had been admitted to consider whether the Family Courts in a suit for jactitation of marriage could examine the validity of Nikahnama under section 23 of the West Pakistan Family Court Act, 1964. The circumstances under which this question has arisen may be briefly stated :
2. The petitioner claims that Mst. Jawai respondent No. 1 was married to the petitioner on 2nd June, 1975 and that the marriage was duly registered under the Muslim Family Laws Ordinance.
1961. According to the petitioner the respondent No. 1 lived with the petitioner as his wife when she developed illicit relations with respondent No, 2 and was abducted. The respondent No, 2 is said to have forged an ante-dated Nikahnama in his favour. The respondent No. 1 also is said to have been returned to the petitioner and was recovered at the instance of respondent No, 2 in a Habeas- corpus petition filed in this Court being No, 1038/H/75. The respondent No. 1 is stated to have shown her willingness to accomany respondent No, 2 in the said proceedings. The petitioner was thus left with no option than to file a suit for the jactitation of marriage and thereby praying for a declaration that there was no valid marriage subsisting between respondent No, I and respondent No,
2. The suit was ontested by the respondents in which the only important issue was whether he respondent NO. 1 was married with the petitioner and was his legally wedded wife. Both the parties led evidence and the learned Judge, Family Court. Hafizabad by his judgment dated 30th April, 1979 decreed the suit filed by the petitioner. The respondents filed an appeal against the said judgment and decree which was accepted by the learned Additional District Judge, Gujranwala on 18th December.
1979. Two Nikahnamas had been produced before the learned Judge, Family Court ; one by the petitioner being Exh. P. 1 and the other Exh. D. 1 by the respondents. The learned Additional District Judge was mainly influenced by the provisons of section 23 of the West Pakistan Family Courts Act, 1964 which debars a Family Court from going into the validity of a Nikahnama. He admitted both the documents to be genuine and gave effect to the one which was prior in time and the contention of the petitioner that the Nikahnama Exh. D. 1 relied upon by the respondent was a forged document was not examined. The learned Additional District Judge observed that any evidence as regards the forgery of the Nikahnama relied upon by the petitioner was inadmissible.
The relevant observations as contained in paragraph 8 of the judgment in this behalf may be quoted below :- "Malla, the respondent-plaintiff claims Mst. Jawai appellant No. 1-defendant No. 1 to he his legally wedded wife by virtue of Nikahnama Exh. P.
1. On the other hand, the claim of Muhammad appellant No, 2-defendant No, 2 regarding Mst.
Jawai appellant No, I as to be his lawfully wedded wife is based on Nikahnama Exh. D.
1. Both these documents indicate, show and establish the solemnization of Nikah and, marriages under Muslim Family Laws Ordinance, 1961. Hence if a Family Court is debarred and precluded from questioning the validity of the marriage solemnized under Nikahnama Exh. P. 1, how can it question the validity of the mar riage solemnized by way of Nikahnama Exh. D.
1. As a matter of fact, any evidence with regard thereto was inadmissible before the said Court under section 23 of the West Pakistan Family Courts Act. Hence the bar of section 23 of West Pakistan Family Courts Act was equally applicable in both the cases."
3. The finding of the learned Judge, Family Court as regards Nikahnama Exh. D. 1 was that the respondent No, I had failed to prove the registration of the same and had discussed the entire evidence on the basis of which he had arrived at that conclusion.
4. The learned counsel for the petitioner has argued that section 23 of the West Pakistan Family Courts Act, 1964, provides that a Judge, Family Court could examine the validity of Nikahnama in case evidence was led to show that the same had not been duly registered or that such a document had been forged in order to defeat a lawful existing marriage:. Answer to this question shall depend upon the examination of the scope of a suit for jactitation of marriage and the provisions of section 23 of the said Act. Section 23 may be reproduced below :- ' Section 23. A Family Court shall not question the validity of any marriage registered in accordance with the provisions of the Muslim Family Laws Ordinance, 1961 nor shall any evidence in regard thereto be admissible before the said Court.
5. Section 5 of the said Act provides that subject to the provisions of Muslim Family Laws Ordinance, 1961 and the Conciliation Court Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate the matters specified in the Schedule. The Schedule originally appended to the said Act with reference to section 5 containing six items and the subject of jactitation of marriage was inserted as Item No, (7) by West Pakistan Family Courts (Amendment)
Act, 1969. The scope of a suit for jactitation of marriage was examined in a case reported as Mst.
Amina Begum v. Ghulam Nabi and others (1) and it was held that Item No, (7) of the Schedule (jactitation of marriage) could not be confined to a suit for declaration that there was no marriage but included a suit for declaration by a person falsely posing to be spouse of the defendant. In nut- shell it was observed that declaration as to the status where marriage was alleged by one party and denied by another would be covered under the -decree for jactitation of marriage. The jurisdiction of the Civil Courts in such matters was held to be barred under the provisions of section 7 of the said Act. The relevant observations by Mr. Justice Aftab Hussain may be quoted below :- "The West Pakistan Family Courts Act, as it clearly shows, has been enforced to make provisions for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs. Section 5 of the Act provides that subject to the provisions of the Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961 the Family Court shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule. These matters are (1) Dissolution of marriage. (2) Dower, (3) Maintenance (4) Restitution of Conjugal rights, (5) Custody of Children, (6) Guardianship and (7) Jactitation of Marriage.
' The object of the Act is to give exclusive jurisdiction to the Family Courts in all matters relating to marriage. A suit for affirmative declaration about existence or subsistence of marriage is as much a suit relating to marriage as a suit for the negative declaration. The wider meaning, of the expression "Jactitation of Marriage" will, therefore, advance the object of the Act. On principle also there appears to be no difference between a case where the party aggrieved against the false claim comes to the Court first or the other party invokes the jurisdiction of the Court. I do not see any reason why a suit for jactitation of marriage will not include a suit for declaration by a person falsely posing that he is the spouse of the defendant. In my view any declaration as to the status where one party alleges marriage and the other denies, it will amount to a decree for jactitation of marriage."
6. After Item No, (7) had been inserted in the Schedule under section 5 of the said Act, section 23 was not amended. The scope of suit for jactitation of marriage has already been examined above and it may be again pointed out even at the cost of repetition that in all cases where the dispute relates to a false marriage shall be decided by a Family Court and the jurisdiction of the civil Courts shall be deemed to be barred under section 5. It would be frustrating the object of the Family Courts Act, 1964 in case the Judge, Family Court is. Not given the power to examine the validity of marriage on which the defendant relies as in the present case. In almost all such suits based on the denial of marriage the Family {{FOOT NOTE}}
(1) PLD 1974 Lah. 78 {{FOOT NOTE}} Court can only decide the question after examining the validity of the marriage set up by the defendant. In the present case the petitioner had led evidence to show that the marriage of respondent No. 1 was not duly B registered and the Nikahnama Exh. D. 1 relied by the respondents was a forged document. According to my humble view this allegation could be examined in a suit for jactitation of marriage and section 23 was not a bar thereto. My finding is based on two reasons. Firstly, because the bar under section 23 only relates to questioning the validity of any marriage registered in accordance with the provisions of Muslim Family Laws Ordinance and secondly, for the reason that by making provisions for jactitation of marriage to be taken cognizance only by a Family Court the Legislature intended that the validity of a false marriage should be exclusively enquired into by a Family Court. Section 23 shall only apply where in a suit covered under any of the items Nos. (1) to (6) of the Schedule the defendant may not raise a frivolous plea of the validity of the marriage in case it was registered in accordance with the provisions of Muslim Family Laws Ordinance. Usually in cases falling under jactitation of marriage the defendant relies on a disputed marriage and as such the Family Court shall be competent to enquire into the validity of such a marriage. The plaintiff may show that the marriage relied upon was the result of forgery, false preparation of documents and otherwise not being validly registered under the provisions of Muslim Family Laws Ordinance. In all the cases falling under Items Nos. (1) to (6) a valid marriage is relied upon by the plaintiff, and not in a suit for jactitation of marriage. I am supported in my view by a Karachi judgment reported as Nazar Qasim v. Shaista Parveen (1). In this case a suit had been filed for declaration that relationship of wife and husband never existed between the parties and that Nikahnama dated 17th February, 1978 pertaining to the alleged marriage of the plaintiff was a forged document and void against her. Earlier to this suit the defendant had filed a suit for restitution of conjugal rights on the basis of the said Nikahnama. In this case the defendant made an application under Order VII, rule 11, C. P. C. And the plaint was ordered to be rejected directing the plaintiff to have a recourse to the Family Court. This order was set aside on appeal and a revision was filed in the High Court by the plaintiff. The High Court relied on Mst. Amina Begum v. Ghulam Nabi etc. (2) for determining the scope of suit for jactitation of marriage and also dealt with the contention whether section 23 of the Family Courts Act debarred the jurisdiction of the Family Court to question the validity of a disputed marriage. This contention was raised by the plaintiff to show that she could not have recourse to the Family Court on account of the bar contained in section 23. This contention was repelled and on precisely the same lines indicated by me above and the plaint was returned for presentation to the Family Court. The relevant observations may be quoted below :- "Section 23 of the Family Courts Act debars the Family Court questioning the validity of any marriage on the ground that the provisions of the Muslim Family Laws Ordinance, 1961 providing for it solemnization and registration in the prescribed manner have not been complied with. It assumes that in all other respects, the marriage is otherwise valid under the Muslim Law. The said section cannot therefore prevent a party to the marriage from leadin evidence to show that the marriage did not in fact take place a {{FOOT NOTE}}
(1) 1979 CLC 462 (2) PLD 1974 Lah. 78 {{FOOT NOTE}} alleged or that fraud had been perpetrated against the party or that his/her signature on the alleged Nikahnama was also forged. Fraud vitiates even the most solemn transaction. A marriage which is otherwise void, for example, because the marriage solemnized between persons within the prohibited decrees, cannot go beyond challenge in a Family Court, merely because it was registered by Nikah Registrar in accordance with the provisions of section 5 of the Muslim Family Laws Ordinance, 1961."
7. In view of the above discussion I am of the considered view that the evidence led by the petitioner could not be excluded from consideration by the appellate Court and as such the Additional District Judge has failed to dispose of the appeal in accordance with law. This writ petition is accepted and the Judgment and decree of the learned Additional District Judge, Gujranwala dated 18th December, 1979 is hereby declared to be without lawful authority. The case is remitted to the appellate Court for re-examination of the merits of the case in accordance with law without being influenced by the provisions of section 23.
8. However, in the peculiar circumstances of the case there will be no order as to costs.