ORDER.
RAJA SAJJAD AHMAD KHAN, J.---Since both the appeals arise out from the common judgment of learned Judge Family Court, Hajira dated 22.3.2018, therefore, these are being consolidated and will be disposed of through this single judgment.
2. The respondent Mohammad Nawaz Khan filed a suit for restitution of conjugal rights before learned Additional District Judge empowered as Judge Family Court, Hajira on 27.11.2015, stating therein that the marriage between the spouse was solemnized on 12.01.2015 in accordance with Sharia Mohammadi. The defendant appellant No,1 in accordance with her free will and consent contracted Nikah with plaintiff. She went to her parent's house after making compromise that she will come in the house of plaintiff after three months but despite lapse of a period of ten months she did not come back. The plaintiff when contacted with her, it came to know defendant Nos,2 and 3 were creating hindrance in the settlement of defendant-appellant. After Nikah she is bound to perform her marital duties with plaintiff in accordance with Sharia and law. It was saying to defendants Nos, 2 and 3 they may not be interfered in settlement of defendant No,1 who is legally wife of plaintiff and they may leave her with him for settlement but they inspite of compromise refused to do so, therefore, a decree for restitution of conjugal rights may be passed in favour of plaintiff-respondent.
3. The defendant-appellant contested the suits by filing written statement and she also filed a suit for jactitation of marriage on 09.12.2015 wherein she refuted all the contents of the plaint and stated that the plaintiff-respondent has got no cause of action. It is further averred that no any Nikah was solemnized between the plaintiff and defendant, however, a fake and fabricated Nikah was prepared. Defendant No,1 did not make any compromise with the plaintiff. Defendants Nos,2 and 3 were parents of defendant No,1, She is student of B.Sc. class in Mohammdan College, Hajira. A few days prior on an information that plaintiff contracted marriage with defendant No,1, her father went to the office of Tehsil Mufti Hajira where it came to know that defendant had registered a fake Nikah, in fact she did not contract marriage with defendant No,1 upon which her father registered an FIR against the defendant No,1, therefore, a decree for jactitation of marriage against the defendant may be passed in her favour.
4. The two suits were consolidated by the learned Judge Family Court, Hajira, framed four issues, consolidated evidence was recorded and vide judgment and decree dated 22.03.2018 suit for restitution of conjugal rights was decreed and suit for jactitation of marriage was dismissed, hence, these appeals.
5. Sardar Suleman Khan and Raja M.Hafeez Khan, the learned Counsel for the defendant-appellant reiterated the arguments raised in the appeal and submitted that the Judge Family Court committed an illegality while dismissing the suit for jactitation of marriage and passing the decree of restitution of conjugal rights. The learned Counsel argued that the Court below misread the evidence of the parties and did not appreciate it in its true perspective, therefore, by accepting the appeals the impugned judgment and decree to-the extent of restitution of conjugal rights passed in favour of respondent may be set aside and decree for jactitation of marriage be passed in favour of plaintiff-appellant It has been argued that so called Nikah was kept secret and when appellant got knowledge of alleged Nikah, she immediately filed suit for jactitation of marriage and statement of plaintiff was sufficient to pass a decree for jactitation of marriage in her favour. It is further emphasized that it is admitted that on 12.01.2015 no Rukhsati had been taken place and Mohammad Azam, father of appellant-defendant was not present during the Nikah ceremony at Al-Rashid Hotel, Hajira. The learned Advocates referred to and relied upon following case law and prayed for acceptance of appeals. PLD 1997 Lahore 301, PLD 2003 Pesh. 1, PLD 2006 SC 489, 2000 YLR 577 and Section 252 Muhanunadan Law.
6. Conversely, Sardar Mohammad Anwar Khan, the learned Counsel for the defendant-respondent, vigorously argued that the learned Judge Family Court appreciated the evidence of the parties in its true perspective and correctly passed a decree for restitution of conjugal rights in favour of respondent. The claim of the plaintiff is unjustified and based on no evidence. The learned Counsel agitated that the Court below after evaluating the evidence in its true perspective, passed the decree for restitution of conjugal right, therefore, the claim of .respondent has been well established by him. The learned Counsel finally prayed for dismissal of appeals and defended the impugned decision on all counts. He submitted that to prove Nikah nama dated 12.01.2015, Nikah Khawan Molvi Sharif and witnesses Abdul Qadeer and Aman Ullah appeared before the Court and fully supports the execution of Nikah Nama. Moreover, pictures of appellant and her video statement corroborate that she with her consent entered into Nikah. He further submitted that appellant should have filed the suit for dissolution of marriage instead of suit for jactitation of marriage. He referred sections 249 and 251 of Muhammadan Law and also referred page 325 of Kitabul-Hadaya and finally prayed for dismissal of the appeals.
7. I have given my dispassionate thought to the arguments addressed at Bar and gone through the record and also guided myself from the case law cited at bar.
8. In the instant case the question which needs. determination as to whether Mst.Ammara Azam is the legally wedded wife of Mohammad Nawaz respondent or not?
9. In order to prove his claim plaintiff-respondent produced Aman Ullah, Abdul Qadeer and Molvi Sharif as his witnesses and also got recorded his statement. He also produced documentary evidence such as Nikah Nama Ex.PA, picitures Exh.PB, and memory card Ex.PC. The trial Court while relying upon above mentioned evidence concluded that appellant-defendant is legally wedded wife of respondent and passed the decree of restitution of conjugal rights and dismissed the suit of appellant-defendant for jactitation of marriage.
10. A perusal of contents of Nikah Nama Ex.PA reveals that Nikah was solemnized on 12.01.2015 at about 2.00 p.m. In column 6 of Nikah Nama, name of M.Azam Khan is entered as Wali/Wakeel of groom and in column No,7 Abdul Qadeer and Aman Ullah has been shown as witnesses of Wali/Wakeel. Whereas statements of Nikah Khawan; Abdul Qadeer and Amanullah clearly reveals that Mohammad Azam Khan was not present at the time of execution of Nikah Nama. It is proper, to mention here that when M. Azam Khan got knowledge of this forged Nikah, he got registered an FIR Exh.DB in offences under sections 467, 460 and 109, A.P.C. in which Nikah Khawan, respondent and his witnesses were arrested and after investigation a challan was presented before the competent court which is subjudice there.
11. The witnesses of sitting of Nikah have been cited in column No,8 namely M.Arshad and M.Bilal.
These witnesses are important witnesses in whose presence alleged Nikah was performed and Nikah Nama was executed and appellant signed the Nikah nama but interestingly these witnesses have not been produced by the respondent. Even they were not cited as witnesses in the list of witnesses of respondent-plaintiff. It is proper to mention here that defendant in his statement stated that he did not know the witnesses Mohammad Arshad and Bilal while Nikah Khawan Molvi Mohammad Sharif did not mention that these two witnesses were present at the time of Nikah. The statements of Abdul Qadeer and Aman Ullah negates the presence of witnesses of meeting of Nikah. From perusal of the evidence it is proved that names of witnesses of meeting of Nikah have been written without their presence and their signatures are forged. Non production of witnesses of Nikah Nama is fatal and it can safely be concluded that Nikah-Nama remained unproved, therefore, it could not be read into evidence and neither a decree of restitution of conjugal rights could be granted on the basis of such Nikah-Nama.
12. The learned trial Court wrongly relied upon the evidence of Aman Ullah and Abdul Qadeer.
Aman Ullah aged 20 years, in his statement deposed that he is a cousin of M.Nawaz and his fast friend who can do everything for him. Other witness Abdul Qadeer is a neighbor of M.Nawaz who deposed that he never met with Ammara Azam, neither he has known her. Nikah Khawan told him that she is Ammara Azam. He further deposed that the girl sitting in the meeting of Nikah might be some other girl. The statement of Nikah Khawan is very interesting who admitted that he received Rs,10,000/- of alleged Nikah whereas his ordinary fee of Nikah is only Rs,3000/-while on Nikah Nama fee of Nikah is shown as Rs,1050/-.He also admitted that he know Ammara Azam due to his identity card. He admitted that place of Nikah is written as "Sarrari" whereas alleged Nikah was shown to have been executed at Al-Rashid Hotel, Hajira which is away at the distance of 45 minutes by travelling.
13. The other entries made in Nikah Nama are also incorrect i,e, I.D. Card numbers and place of Nikah is written as "Sarrarri" whereas alleged witness deposed that it was solemnized at Al-Rashid Hotel, Hajira. Date of Rukhsati was shown as 12.01.2015 whereas no Rukhsati had been taken place.
The time of Nikah is shown as 2.00 p.m. whereas witnesses of appellant stated that at 2.00 p.m. she was at her home at "Serarri." The prompt dower is shown as ornaments of Rs,50,000/- whereas none of the witnesses stated that it was paid in their presence over Nikah Nama. So entries made in the Nikah Nama are incorrect forged on the face of it.
14. It is relevant to mention here that version of the plaintiff-respondent is that Nikah was solemnized on 12.01.2015, but surprisingly it was kept secret till November, 2015. It is settled that Nikah must be proclaimed and proclaimed openly so that it may be known to people that spouses are validly married. There is a Hadith coming from Hazrat Ayesha (reported by Ibne Majah, Tirmzi and Ahmad Bin Hambal) that "proclaims your marriages." In the circumstances of the case, such secret Nikah cannot be termed as valid Nikah. Even otherwise marriage/Nikah is one of the most important and sacred institution being a symbol of dignity of man and woman in Muslim society.
So the instant Nikah cannot be approved as valid Nikah.
15. It is also proper to mention here that on the application of plaintiff respondent, specimen signatures of Ammara Azam along with all required documents were .sent to hand writing expert by the trial court but no positive report could be placed before this Court despite repeated efforts In light of above listed facts, the impugned judgment and decrees are not sustainable which are result of non-reading and misreading of the evidence. The learned court below did not appreciate the evidence in its true perspective, therefore, while setting aside the impugned judgment and decree dated 22.03.2018, I accept the appeal and pass the decree of jactitation of marriage and dismiss the suit for restitution of conjugal rights. No order as to costs. A copy of the judgment shall be annexed with other relevant file.