ORDER CH. MUHAMMAD TARIQ, J.---This writ petition has been directed against the impugned judgments and decrees passed by both the learned courts below.
2. Brief facts of the case as mentioned in the instant writ petition are that respondent No.3 Syeda Kubra Bibi filed a suit for maintenance for three minor children Mst. Nadia, Mst. Shazia and Bilal Shah and for on. Similarly, she also filed a suit for transfer of 4 acres of agricultural land which statedly the petitioner had given to her as 'Haq Mehar' vide agreement and recovery of Rs.2,00,000 because the petitioner had divorced the plaintiff in breach of agreement. Three minor children were born during the wedlock, due to differences having been arisen between the parties, on 9-9- 2004 she was divorced. She filed an application for custody of minors and a warrant of recovery of minor child was issued by the court. In the meantime, a compromise was effected between the parties and in the court of Guardian Judge The parties compromised. Later on, in spite of the agreement/compromise deed having been written, the differences arose and respondent No.3 was expelled from the house by the petitioner. All the three suits were consolidated and the proceedings were initiated in the suit for maintenance.
3. Learned trial court after framing of consolidated issues and recording of oral as well as documentary evidence, decreed the suit of the respondent in the following tune:-- "Under the observation of Issue No.1, the plaintiffs Nos.2 to 4 are entitled to get maintenance allowance at the rate of Rs.1,000 each per month with the increase of 10% per annum. They would be entitled to. Get maintenance allowance from the institution of the suit till they are legally debarred. Under the observations of Issues Nos.2, 3, 4 and 5, the plaintiff No.1 is entitled to get maintenance allowance at the rate of Rs.3,000 per month till the period of Iddat. She would also be entitled to get Rs.2,00,000 as consideration (Haq Mehar) and four acres agricultural land according to the condition of compromise. If said agricultural land not given the possession of the plaintiff, she would be entitled to recover Rs.12,00,000 in lieu of agricultural land. Decree sheet be prepared separately. No order as to costs. File be consigned to record room after its due completion and compilation."
4. Feeling dissatisfied, the petitioner/ appellant filed an appeal before the learned first appellate court which was also dismissed on 28-10-2008 by the learned District Judge, Sahiwal, hence this writ petition.
5. Learned counsel for the petitioner contends that judgments and decrees passed by both the learned courts below are against the law and facts. Both the learned courts below have not applied their judicious mind. The impugned judgments and decrees have been passed without jurisdiction and the compromise deed is a forged and fabricated document. Therefore, this writ petition be accepted, impugned judgments and decrees be set aside and suits of respondents Nos.3 to 6 be dismissed with cost throughout.
6. Conversely, learned counsel for respondent has vehemently opposed this writ petition and has contended that there are concurrent findings of two learned courts below which could not be interfered in the writ jurisdiction of this court. The petitioner voluntarily executed a compromise deed which was made part of judicial record. Both the learned courts below have passed the impugned judgments and decrees on the basis of compromise executed and submitted in the court. Sanctity of truth is attached to the said document. This writ petition is without any substance, it be dismissed.
7. Arguments heard. Record perused.
8. First of all this 'court has perused the order sheet of learned Guardian Judge, whereby, the application for custody was withdrawn simply on the statement that parties have effected compromise, therefore, the applicant does not want to further prosecute the application and on her statement, the said application was allowed to be withdrawn. Similarly, the alleged compromise deed was prepared on a blank paper which was neither marked by the court nor exhibited as part of judicial file nor it bear the signatures or stamp of Judicial Officer.
9. The alleged agreement does not fall within the definition of concluded agreement, particularly, when the petitioner has denied its execution. So a Guardian Judge had no jurisdiction to declare the title of parties. The only remedy available to respondent No.3 was to approach civil court for a declaration.
10. The second important aspect in this case is that a Guardian Judge could have decided the matter of custody of minor between the parties. He has travelled beyond his jurisdiction to decide the other controversial disputes between the parties because in the light of law laid down by the Hon'ble Supreme Court of Pakistan in case "Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another" (2008 SCMR 186), "Mrs. Marina Jatoi v. Nuruddin Khan Jatoi" (PLD 1967 SC 580), "Mst. Amira Bokhari v. Faqir Syed Jamil-ud-Din Bokhari" (PLD 1994 Lahore 236), it was held that no embargo could be imposed for prolongation of marriage contract or that on the right of husband to divorce his wife and any such embargo will be against the law because a Muslim husband enjoys unfettered powers to divorce his wife. He can dissolve the contact of marriage unilaterally.
11. As a result of above discussion, this writ petition is partially accepted, except the decree for the payment of maintenance allowance, the remaining judgments and decrees are set aside and suits to the extent of transfer of four acre of Agricultural land and recovery of Rs.2,00,000 are dismissed..