Shujaat Ali Khan, J. Unnecessary details apart, the petitioner filed suit for jactitation of marriage against respondent No.3 which was dismissed by the learned Judge Family Court, Lahore (learned Trial Court) vide judgment & decree, dated 04.05.2018, however, marriage between the parties was dissolved on the basis of Khula. Being aggrieved of the decision rendered by the learned Trial Court, the petitioner preferred an appeal but without any success as the same was dismissed by the learned Additional District Judge, Lahore (learned Appellate Court) through judgment & decree, dated 22.12.2018; hence this petition.
2. Learned counsel for the petitioner submits that upon denial of execution of valid Nikah by the petitioner, onus shifted on the shoulders of respondent No.3 to prove valid Nikah between the parties but learned Trial Court wrongly placed onus of the said issue on the petitioner; that initially, while filing written statement, respondent No.3 mentioned the date of marriage as 26.11.2013 and that of departure (rukhsti) as 26.11.2014 but while filing suit for restitution of conjugal rights he averred that departure (rukhsti) took place on the date of Nikah i.e. 26.11.2013 and in the affidavit- in-evidence filed before learned Trial Court he knowingly omitted to mention the date of marriage with a view to camouflage material contradiction on his part during various proceedings; that both the courts below also formed opinion against the petitioner for untenable reason that she did not appear in the witness box without considering that not only under section 17 of the Family Courts Act, 1964 she could appear before the Court through an attorney but also she entered appearance before learned Trial Court through attorney after seeking requisite permission from the Court; that careless attitude on the part of the learned Trial Court is evident from the fact that though it observed in its judgment that the audio recording, initially produced by respondent No.3, was not available on court file but in the later part of the judgment it relied upon the same; that DW-4 & DW-6, who allegedly witnessed the Nikah between the parties, did not utter even a word about the fact that the petitioner put her signatures or thumb impression in their presence; that non- mentioning of exact address of the petitioner in Nikah Nama by the Nikah Khawan is proof of the fact that vague address was mentioned just to justify his jurisdiction to register the forged and fraudulent document (Nikah Nama); that material contradiction on the part of the DWs is evinced from the fact according to DW-3 the Nikah Nama was completed by his son who never entered the witness box whereas to the rest of the DWs the same was filled in by DW-3 (Nikah Khawan) himself; that mala-fide on the part of respondent No.3 is evident from the fact that though the petitioner is resident of Lahore but her address in the Nikah Nama was shown as that of Burewala; that according to father of respondent No.3, he visited the parties on 28.11.2014 when they were putting up in a rented house in Valencia Town, Lahore but according to the Rent Deed the period of tenancy was to start from 01.12.2014, thus, it could not be believed that the parties started to live in that house even prior to start of tenancy period; that contumacious conduct of respondent No.3 is established from the fact that in the Tenancy Agreement not only there is cutting on the date relating to issuance of stamp paper which was used for the said purpose but also the signing of said document by a witness on 22.11.2014 even prior to issuance of the stamp paper renders the entire story doubtful; that since respondent No.3 did not rely upon the Nikah Nama in the list of reliance, thus, he could not be allowed to produce the same at some subsequent stage; that upon coming to know about the material contradiction in the stances taken in the written statement and the suit filed by him for restitution of conjugal rights, respondent No.3 filed application for amendment of his suit for restitution of conjugal rights which was dismissed by the learned Trial Court whose order remained intact upto this Court; that during proceedings before the learned Trial Court, the petitioner gave consent that if it was proved from the location of her cell phone or through the audio recording, produced by respondent No.3, that she was available in Burewala on the date of Nikah she would withdraw her suit but the same was neither accepted by respondent No.3 nor was given any weightage by the courts below; that though Nikah Nama is considered to be a public document but when its authenticity is impugned by any of the parties, it assumes the status of a private document and that the party claiming benefit under a document is bound to prove its execution. Relies on Matloob Hussain v. Mst. Shahida and 2 others (PLD 2006 SC 489), Qalandri Bibi v. Mst. Irum Bibi and others (2019 YLR 86), Sardara and Allah Ditta through Legal Heirs v. Mst. Bashir Begum and another (PLD 2016 Lahore 587), Mst. Ruqayya Bibi v. Additional District Judge etc. (PLD 2012 Lahore 408), Mushtaq Ahmed Malik v. Muhammad Sunawar Choudhary and another (2003 YLR 406) and Hafiz Abdul Waheed v. Miss Asma Jehangir and another (PLD 1997 Lahore 301).
3. Conversely, learned counsel representing respondent No.3, while defending the impugned decisions of the courts below, submits that according to the documents appended with this petition the statement of the petitioner was recorded on 25.06.2016 through courtesy of the Local Commission, namely, Mr. Shahzad Amin, Advocate but the said statement having not been signed by the learned Trial Court could not be used against the respondent; that concurrent findings of facts recorded by the courts below cannot be interfered by this Court; that learned counsel representing the petitioner has argued the matter as an appeal and relied upon certain provisions of Qanoon-e-Shahadat Order, 1984 and CPC despite the fact that both these enactments are inapplicable in familial matters; that despite addressing the Court at length, learned counsel representing the petitioner has not been able to point out any legal infirmity in the well-reasoned decisions of the courts below justifying interference by this court in exercise of its constitutional jurisdiction; that since it was run-away marriage, routine formalities could not be fulfilled, thus, the points agitated by the learned counsel representing the petitioner do not justify upsetting the concurrent findings of the courts below; that though in the plaint the petitioner levelled allegation of misrepresentation and fraud but she did not produce any evidence to prove the same; that PW- 1, during evidence, admitted that the photographs, produced before him, were of his niece (petitioner) thus solemnization of valid Nikah stood proved; that mala-fide on the part of the petitioner is evident from the fact that none of the PWs uttered even a word about the exact location of the petitioner on the date of Nikah meaning thereby that she was available with respondent No.3 at Burewala; that even while appearing before the Judicial Magistrate at Tandlianwala, the petitioner did not clarify that where she was on the date of Nikah; that the Bailiff, deputed in the habeas corpus petition filed by respondent No.3, raided the house of the petitioner whereupon he was told by maternal uncle of the petitioner (PW-1) that she was missing from the house for so many days which fact also lends support to claim of respondent No.3 that the petitioner contracted valid marriage with him; that the petitioner being more than 27 years of age at the time of Nikah competently exercised her right to contract marriage according to her own whims; that even in a letter, addressed by the petitioner to respondent No.3, she clarified that she did not file the suit out of which present proceedings have emanated which fact is sufficient to believe that her family compelled her to disown the contents of Nikah Nama; that inconsistent attitude on the part of the petitioner is evident from the fact that on the one hand she has taken the stance that she was alien to respondent No.3 but on the other in the caption of the suit has provided his full particulars, including CNIC Number; that a party, which alleges a fact, is bound to prove the same and since the petitioner alleged impersonation at the time of solemnization of Nikah, she was bound to prove that some other lady was produced in her place at the relevant time; that according to report of the Bailiff, deputed in the habeas corpus petition filed by respondent No.3, maternal uncle of the petitioner (PW-1) informed that she was missing for last two weeks and the said report having not been challenged any further and being a public document, carries presumption of correctness; that when a witness is found guilty of telling a lie, his/her entire statement is to be discarded; that though the petitioner got registered a criminal case against respondent No.3, wherein PW-1 is witness, but during evidence he (PW-1) refused to recognize respondent No.3; that the pleas raised by respondent No.3 before the fora were not specifically rebutted by PW-1, thus, the same amounted to admission; that PW-2 admitted that at the time of raid by the bailiff, deputed in the habeas corpus petition filed by respondent No.3 the petitioner was not available in her house, thus, she was bound to establish her exact location anywhere else at the relevant time; that PW-2 did not deny execution of Nikah between the parties with the only difference that it was not Sharai Nikah; that PW-2 admitted that English signatures of the petitioner, available on Nikah Nama, matched with her signatures available on her CNIC; that voluntary portion of statement of a witness cannot be used to decide a matter; that section 18 of the Family Courts Act, 1964 only provides for appearance of a person through an attorney who has been called to appear as a witness but since the petitioner herself filed suit and pursued it till the stage of evidence, no persuasive reasons were given by learned Trial Court while permitting her to appear through attorney; that it is very ironical that most of the family members of the petitioner are leading bachelor life, thus, their unhappiness over the marriage between the parties was natural; that since the last lines of document available at Page No.99 corresponds to the opening lines of document available at Page No.101, it stands established that documents available at Page Nos.100 & 101 were inserted at some subsequent stage; that while showing his bona fide, respondent No.3 filed application for comparison of signatures of the petitioner on Nikah Nama with her admitted signatures but the same was hotly contested by her and resultantly the same was dismissed by learned Trial Court with the observation that the same was filed belatedly; that during proceedings before learned Trial Court, in the first instance the petitioner side offered for virginity test of the petitioner to confirm as to whether the marriage between the parties was consummated or not but when respondent No.3 filed formal application in that regard, the petitioner opposed it tooth and nail just to conceal the reality; that since respondent No.3 succeeded to prove that he had been living with the petitioner as husband-wife, the execution of tenancy in favour of respondent No.3 at some subsequent point was immaterial as in routine the landlords hand over physical possession of the rented premises to the tenants even before completion of codal formalities; that it is well-established by now that evidence recorded in one case cannot be used in another case except for the purposes of confrontation to a witness; that since respondent No.3 amended plaint of his suit for restitution of conjugal rights, with permission of the Court, any deficiency in the un-amended plaint could not be used against him; that suggestion, howsoever strong, cannot be used as substitute of a fact; that inconsistent attitude of the petitioner is apparent from the fact that in the first instance she alleged that her signatures were forged by respondent No.3 but subsequently while improving her case she took the plea that some other lady was produced in her place at the time of Nikah; that personal appearance of the petitioner in the witness box case was also necessary for the reason that certain questions, in particular those relating to the measurement for stitching of bride suit, could only be answered by herself and not by the attorney; that love-letter written by the petitioner to respondent No.3, with her blood, stands proof of the fact that they were fully involved with each other which ultimately resulted into solemnization of run-away marriage as parents of both sides were not ready for arrange marriage; that bona fide on the part of respondent No.3 is visible from the fact that despite animosity with the family of the petitioner, he opted to attend funeral of mother of the petitioner when he was not only brutally thrashed but also a criminal case was got registered against him; that though after issuance of medico legal report pursuant to the direction of the Magistrate concerned, a criminal case was registered against family of the petitioner but the same was cancelled within 09 days of its registration due to the pressure of the petitioner's family on account of their sound financial status; that cursory statement of the petitioner, made in the complaint filed by her at Tandlianwala, shows that at the relevant time she was not available in her parental house rather she was enjoying blissful marital life with respondent No.3; that sanction of marriage grant by the Bank in favour of respondent No.3 at the crucial time also affirms that valid marriage was solemnized between the parties; that minor discrepancies, highlighted by learned counsel for the petitioner during the course of arguments, cannot be used to interfere in the concurrent findings of facts recorded by the courts below; that when the petitioner failed to rebut the assertion of respondent No.3 that on 26.11.2013 he was on leave from the Bank in connection with his marriage the plea of respondent No.3 was to be taken as correct; that to arrive at a just conclusion, respondent No.3 filed an application for verification of thumb impression of the petitioner on various documents but the said request was hotly contested by the petitioner just to avoid unveiling of truth; that though the petitioner challenged certain orders of learned Trial Court by filing constitutional petitions (writ petitions) before this court but none of them was decided on merits, thus, the assertion of the petitioner that the orders passed by learned Trial Court were upheld by this Court is against the record; that section 18 ibid is only attracted when a person so required is Parda Nasheen lady or is unable to appear before the Court due to any other reason but in the case in hand when the petitioner opted for run-away marriage she could not be treated as Parda Nasheen lady; that appearance of the petitioner in person before different fora prior to filing of the suit, under discussion, speaks volumes about the fact that she could not be dubbed as Parda Nasheen lady; that after brushing aside the objections of the petitioner against production of photographs before the learned Trial Court, the same were rightly relied upon by the courts below; that with a naked eye, it can be discerned that signatures of the petitioner on different documents, appended with this petition as well as those available on Nikah Nama are identical; that since all the contentions of the petitioner were dealt with by the learned Appellate Court, one by one, no interference is called for by this Court in these proceedings; that since the petitioner was 27 years of age at the time of marriage it cannot be believed that she signed the Nikah Nama due to some pressure, duress or coercion; that when fraud was not specified in the pleadings, both the courts below rightly disbelieved the said plea of the petitioner; that the case-law, referred by learned counsel for the petitioner, is inapplicable due to peculiar facts and circumstances of the present case inasmuch as in the case of Matloob Hussain (Supra) the Apex Court of the country has held that where the thumb impression of the bride was obtained after abduction mere signing or thumb-marking the Nikah Nama was inconsequential and marriage between the parties could not be held valid. While concluding his arguments, learned counsel representing respondent No.3 has drawn attention of the court towards the alleged unethical material being telecasted by different Media Houses ruining our social threadbare with the prayer that this court should take note of such acts while issuing direction to the relevant authorities to control such contents which encourage run-away marriages and disintegration of our family system. In support of his contentions, learned counsel has relied upon the cases reported as Notice to police Constable Khizar Hayat son of Hadait Ullah on account of his false statement (PLD 2019 S.C. 527), Muhammad Idrees and others v. Muhammad Pervaiz and others (2010 SCMR 5), Muhammad Sharif v. Additional District Judge and others (2007 SCMR 49), Allies Book Corporation through L.Rs. v. Sultan Ahmad and others (2006 SCMR 152), Ghulam Nabi v. Additional District Judge, Jhelum and 47 others (2001 SCMR 683), Jamia Mahmoodia Masjid through its Nazim v.
Additional Commissioner (Revenue), Multan Division and 2 others (1995 SCMR 1243), Ameena Haq v. Rab Nawaz Khan, etc. (PLJ 2018 Lahore 1088), Muhammad Ejaz and 18 others v. Noor Khan and 3 others (PLJ 2018 Lahore 11), Zahur Ahmad through L.Rs. and others v. Pakistan Cargo Services (Pvt.) Limited through Chief Executive and 4 others (2017 CLC 1032), Wahid Bakhsh and others v. Ameer Bakhsh and others (2015 CLC 1387), Mst. Gulshan Parveen v. Amar Safeer Khan and 10 others (2014 CLC 397), Dildar Hussain alias Dibar v. Judge Family Court, Sub-Divisional Courts, Tehsil Chichawatni and another (2014 MLD 1388), Asmatullah v. Allah Nawaz and others (2007 MLD 1329), Mst. Safia v. Mst. Bibi and 14 others (2005 MLD 646), Mst. Kausar Perveen v.
Additional District Judge, Chichawatni, District Sahiwal and another (2000 YLR 577), Muhammad Riaz v. Mst. Noor-ul-Islam and 2 others (1998 CLC 1036) and Riasat Ali and 9 others v. Rahim Bakhsh and others (1992 CLC 2193).
4. While exercising his right of rebuttal, learned counsel for the petitioner contends that availability of CNIC and address of respondent No.3 with the petitioner was natural as she collected the same from the of Nikah Nama forged by him, thus said fact alone cannot be used to believe that valid Nikah was solemnized between the parties; that non-appearance of the petitioner in the witness box, in person, was not fatal as she had the option to appear through attorney in terms of Section 18 ibid; that mala-fide on the part of respondent No.3 is manifest from the fact that instead of reading evidence in entirety, he has relied on piecemeal evidence suitable to him; that the alleged filing of complaint by the petitioner at Tandlianwal and recording of her statement on the same day speaks volumes about mala-fide conduct of respondent No.3; that as according to respondent No.3 the petitioner was available at Burewala at the relevant time, he could conveniently manage filing of the complaint at Burewala and attestation of her affidavit at the said place but filing of complaint at Tandlianwala and attestation of the affidavit there speaks volumes about his fallacious claim; that reliance of respondent No.3 on cordial relations between the parties as classm ates cannot be used as substitute of valid Nikah Nama for the reason that development of intimacy between the class fellows in routine is natural; that the Nikah Khawan, while giving evidence in the year 2017, admitted that he never seen the petitioner till making of his statement before the learned Trial Court; that in his affidavit-in-evidence, DW-4 stated that he was only known to respondent No.3, thus, the alleged signing of Nikah Nama by the petitioner before him is inconsequential; that though during proceedings before the learned Trial Court respondent No.3 produced audio script but when the petitioner asked for its forensic analysis he managed its removal from the court record; that as a matter of fact all the formalities were completed by the Nikah Khawan on telephone; that according to the law laid down in the case of Matloob Hussain (Supra) when there is no relative of the bride available at the time of Nikah her will cannot be considered as free; that after disowning contents of Nikah Nama by the petitioner, onus was on respondent No.3 to prove execution of valid Nikah but he miserably failed to discharge said onus; that in the case of Mst. Ramzan Bibi v. Additional District Judge and others (1995 CLC 1506) it has been held that when there is nobody identifying the bride, marriage is invalid. In addition to his oral submissions in rebuttal, learned counsel for the petitioner has also filed written arguments in rebuttal with the contentions that the petitioner only came to know about the preparation of alleged Nikah by respondent No.3 on 12.12.2014 when the Bailiff of the Court raided her house pursuant to order passed by the Court in a habeas corpus petition filed by respondent No.3; that mala fide on the part of respondent No.3 is evident from the fact that he used scandalous language in the written statement just to malign the character of the petitioner; that since as per section 18 ibid the petitioner had the option either to appear herself or through an attorney, the objection raised by learned counsel for respondent No.3 in that regard is ill-founded; that sinister efforts on the part of respondent No.3 to malign the petitioner's character are evident from the fact that during the course of evidence, questions damaging the character and repute of the petitioner were put to the PWs; that when DW-4 admitted that there was cutting on the time mentioned in his affidavit-in- evidence with the further clarification that there was no mention of specific place where Nikah was performed, the suit filed by the petitioner was to be decreed as prayed for; that admission on the part of Nikah Khawan that Nikah Nama was not filled in by him rather the same was completed by his son speaks volumes about his mala fide conduct; that admission on the part of Nikah Khawan that Nikah Nama available in the UC was not attested by the competent authority rather it bore only stamp of the competent authority also supports the version of the petitioner that no valid Nikah was solemnized between the parties; that DW-5 failed to mention in his statement that the cursory statement in the complaint filed at Tandlianwala was made in his presence; that admission on the part of Muhammad Aslam (DW-2) that he never seen the parties as husband and wife in Burewala belies the claim of respondent No.3 that valid marriage was contracted between the parties; that amendment in the written statement by respondent No.3 after completion of cross-examination on PWs in the suit for jactitation of marriage stands proof of the fact that the same was only an after-thought; that stance of PW-1 that the petitioner was missing two weeks prior to 12.12.2014, when Bailiff raided house of the petitioner, cannot be used against her for the reason that he (PW-1) was not permanent resident of said house rather he came from outside at the time of raid by the bailiff thus he was not aware about the whereabouts of the petitioner; that while responding to a suggestion, Naseer Ahmad (PW-2) clarified that on 12.12.2014, the petitioner was with her maternal aunt at Muslim Town, Lahore; that simple snaps, which can be edited by anybody, cannot be relied upon to establish a valid Nikah.
5. I gave anxious hearing to the learned counsel for the parties on multiple dates in addition to going through the documents, appended with this petition, as well as the case-law, cited at the bar.
6. A perusal of the plaint shows that the petitioner prayed for jactitation of marriage on the grounds that nobody was appointed as Wakeel on behalf of the petitioner-plaintiff; that the witnesses of the marriage were not related to the petitioner-plaintiff; that the petitioner never gave her consent for Nikah; that signatures and thumb impressions of the petitioner-plaintiff on the Nikah Nama were result of fraud and that the petitioner-plaintiff never resided with respondent No.3-defendant as wife.
7. According to Para No.250 of Muhammadan Law by D.F. Mullah marriage (Nikah) means a contract which has for its object pro-creation and legality of children. Further, according to Para No.251 of the said Book, every Muhammadan (Muslim) of sound mind and who has attained puberty may enter into a contract of marriage. Moreover, essentials of valid marriage have been enshrined under para No.252 of said Book which for convenience of reference is reproduced herein below: - "252. Essentials of a marriage.-- It is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal or on behalf of the other, in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Muhammedans. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and an acceptance made at another meeting do not constitute a valid marriage. Neither writing nor any religious ceremony is essential. Under section 5, Muslim Family Laws Ordinance, 1961 every marriage solemnized under the Muslim Law shall be registered."
According to the afore-quoted Para three ingredients of valid marriage are proposal, acceptance and presence of two male or one male and two female witnesses. Insofar as the marriage between the parties is concerned, suffice it to note that a bare perusal of Nikah Nama shows that marriage between the parties was witnessed by Mirza Arshad Ali (DW-4) and Muhammad Niaz (DW-6) and the same was performed by Hafiz Samee Ullah (DW-3). Further, factum of said marriage was incorporated in record of the Union Council concerned on the same day and in token thereof Computerized Marriage Registration Certificate was issued on 27.11.2013. In this backdrop, respondent No.3 discharged his initial onus of fulfilling pre-requisites of a valid Nikah Nama.
8. Now taking up the plea of the petitioner that no Wakeel was appointed on her behalf at the Nikah Nama, I am of the humble view that since she was more than 27 years of age at the time of Nikah she was competent enough to enter into Nikah with anybody according to her own whims even without intervention of a third person, in particular Wakeel. In this regard, I stand guided by the judgments reported as Muhammad Imtiaz and another v. The State (PLD 1981 FSC 308), Zarjuma alia Jamna Bibi v. Station House Officer, Police Station Saddar District Bhakkar and 4 others (PLD 2009 Lahore 546) and Muhammad Afzaal v. Sessions Judge, Multan and 3 others (PLD 2008 Lahore 479). In the case of Muhammad Imtiaz and another (Supra) while discussing the verses from the Holy Qur'an, opinions of Muslim scholars as well as Ahadees, the Federal Shariat Court has inter-alia observed as under: -
12. It has already been stated that the learned Sessions Judge also did not agree with the story about previous Nikah of Mst. Mohammadjan with Hakimnoor. Despite this, the learned Sessions Judge convicted and sentenced the two appellants. On the ground that the Nikahnama Exh. D.A. appeared to be a forged one. He further found that assuming that the Nikahnama was genuine the Nikah was invalid since it was performed without the consent of Muhammadjan's Wali. He has relied upon certain traditions. This Court has already held in an earlier case that according to the Hanafi Law the Nikah of an adult girl is not invalid in the absense of any permission from the Wali.
We may elucidate the point in order to end the controversy, The sufficiency of the consent of a woman to her Nikah is evident from the word in verse 230 of Surah Al Baqarah (2:231), The verse is about the result of divorce that "And if he hath divorced her (the third time), then she is not lawful unto him thereafter until she marries another husband". The word denotes marriage by the woman herself. Similarly in verse 232 of the same verse is the order "not to place difficulties in the way of their marrying their husbands". The word also refers to their sweet will in matters of marriage. This is also clear from verse 229 of the same Chapter (2:229) which is translated below: "And if he hath divorced her (the third time) then is not lawful into him thereafter until she hath wedded another husband. Then if he (the other husband) divorce her it is no sin for both of them that they come together again . . . ."
13. In Miskhat there are several traditions which show that the consent of an adult virgin for her Nikah validates the marriage and that such contest may be given by a girl remaining silent. These traditions are as follows:-
33. Abu Hurairah reported that the Messenger of Allah said: A Previously married woman shall not be married till she gives consent, nor a virgin be married till her consent is sought. They asked: How shall be her permission? He said: "if she remains silent" (agreed).
34. Ibe Abbas reported that the Messenger of Allah said: A previously married woman is more a guardian for herself than her guardian, and a virgin should be asked permission about herself; and her permission is her silence. In a narration; he said "A previously married woman having consummation has got greater right to herself than her guardian, and a virgin shall be asked of her content; and her permission is her silence." (Muslim).
35. Abu Hurairah reported that the Prophet said: A grown-up girl shall be asked permission about herself. If she is silent, it is her permission and it she declines there shall be no compulsion on her.
(Tirmizi, Abu Daud, Nisai)."
The difference of view and particularly the Hanafi view on the subject will be clear from the following translation of the relevant passage from p. 117 of Vol. II of Tabeenul Haqaiq Commentary of Kanzul Daqaiq by Az Zailai: "The Nikah of an adult her woman is effective and permitted. This is according to Abu Hanifa and according to one version Abu yusuf also. He (Abu Yusuf) first said that the Nikah of a woman without Wali is not permitted when there is her Wali, then he retracted this opinion and said if that Nikah be with a person of equal status (Kafu) it is permitted; than he reviewed this also and said that the Nikah of 'moo is permitted. . . . And according to Muhammad it is permitted on condition of the permission of the Wali. And according to Malik and Shafei the Nikah of the woman with their own words (acceptance) is not permitted. They argue first that such says in verse 2:232 (Do not prevent than from Marrying their former husbands). This verse proves that they had not been ordinarily empowered to marry on their one otherwise why it should be said that they should not be prevented from marring. And Imam Shafe'i says that it is a clear verse of the Holy Qur'an regarding the Wali in Nikah. In addition to this the Prophet said "No Nikah is permitted until there be Wali and two just witnesses." And many ahadis have been narrated in the books in this connection but none of them is authentic according to (our) Scholars, Imam Bukhari and Ibn-e-Maien said that there is no authentic Hadis in this regard.
The arguments of Abu Hanifa and others are first that the verse (There is no blame on you An what you did about yourselves) and the verse (Do not prevent them from marrying they (former husbands) and the verse (After she has married another husband) and the verse.
(No blame on either of them if they re-unite, provided they feel that they can keep the limits ordained by God) (2:226:230), are clear about (permissibility of) the Nikah by the women themselves. In all of them the Nikah has been referred to the woman which shows that women are competent to marry themselves and those who deny this refuse the order of Qur'an. In addition to this the Prophet said "Women are better entitled for themselves than their Wali". This is an authentic Hadis. Moreover when a woman is adult and free, she has Authority on herself as (on her) slave and has the authority to purchase and sell."
14. Two traditions are noted in Tirmizi, Vol. I, pp. 508 and 509 undo the heading 'No Nikah without Wali'. One is the Hadis of Abu Muse that the Holy Prophet observed 'there is no marriage without Wali'. It is stated by the Complier that similar traditions are related from Hazrat Aisha and others.
The other tradition is from Hazrat Aisha that the Holy Prophet said "Whoever among women marries without permission of Wali, her owner is void; her marriage is void; her marriage is void. If the male cohabits with that female, he is bound to pay her dower because he was benefited from her private parts. In case of dispute regarding marriage, the King will be considered to be her Wali"
15. According to Tirmizi this Hadis h Hassan, Similar Traditions have been related by others including Shuaba & Sauri but according to Tirmizi the tradition from these are preferable than those related by the above named persons. A Hadis of similar type is also ascribed to Zohri but it is stated that some learned persons in Hadis Literature bare doubted its authenticity because lbn-e-Juraij said that he had met Zohri but the latter had refused to accept it. For this reason the learned called the Hadis as zaeef (weak).
16. From the quotation from Tabeen ul Haqaiq it is clear that traditions similar to those mentioned above are not considered authentic by our Scholars. Several other citations may be given in support of this opinion.
17. In by Ibn Hajar Usqallani, VoL. 2, p. 60 it is stated that Zohri replied on an enquiry from Ibn Juraij.
"I am afraid that it may be the misunderstanding of Salman."
According to Ahmed, Zohri is stated to have mid that he did not brow about it. Similarly according to Tirmizi, Yahya bin Moeen had also called the traditions from Ismail to be weak. As far as the traditions from Hazrat Aisha are concerned, Ibn Hajar discusses the sieve of Ahmed and Ibne Moeen in rejecting that tradition on the ground that Hazrat Aisha had herself married Hafsa, daughter of Abdul Rahman her brother to Munzir Ibne Zubair, during the absence of the bride's father, Abdul Rehman. On his return he was angry but later was reconciled. This according to Ibne Hajar is stated by Malik as Sahih. Although Baihaqi thinks that in this Hadis the word (married) may mean to prepare for marriage not that she gave her actually in marriage. At page 61 Ibne Hajar reproduces the Hadis of Ibne Abbas that there is no marriage without the contest of the Wali and in the absence of any Wali the Sultan is the Wali of a woman. However after relating the sources of this Hadis he states.
18. In Al-Mabsoot by Sarakhsi Vol.III at p.10 is given a pertinent example of the validity of the Nikah of an adult woman without the invention of Wali. It is stated that it has been reported to us on the authority of Ali lbne Abi Talib (God be pleased with him) that a woman married with her contest.
Her Walis went to Haunt Ali to dispute the correctness of the Nikah but he decided in favour of its validity and this is an argument that the marriage of a woman with her own consent and without the permission of the Wali, or, her marriage by a person solemnised on her order that he marry her, is valid. Imam Abu Hanifa has deduced from this that if a woman whether virgin or already married marries with her free will, her Nikah is valid irrespective of the fact whether the husband was or equal status or not. The marriage is correct except in case it is with a male of unequal status when the Walis have right of objection. According to a tradition related from Hassan (Allah be pleased with him) her marriage with a man of equal status is valid but with one of unequal status is invalid.
Imam Abu Yusuf first said that such a wedding whether with a person of equal status or not is not correct. He then changed his view and said that in case of marriage with a person of equal status, the Nikah is valid. He again reviewed this view and stated that the Nikah would be correct whether it be with a man of equal status or not. Attahawi has mentioned the opinion of Imam Abu Yausuf that when the marriage be with a man of unequal status, the Qazi should order the Wali to approve it and if he refuses to approve he cannot dissolve it only the Qazi has a right to dissolve it.
19. Badruddin Aini in his Commentary on Sahih Bukhari named Umdatul Qari, Volume XXIX, pages 120 and 121 has stated that Imam Bukhari has not related the Traditions of Nikah without Wali on the ground that these are not according to his standard. But as he himself is of the opinion that Nikah must be with the contest of Wali, he has related the verse which as be argues, has forbidden she Walis not to prevent the woman from marrying. This verse was revealed in the case of Maaqil who prevented his sister from marrying. But Badruddin Aini says that this Hadith has been related from different sources in which case a different reason for revelation of this verse has been stated.
According to some the order of prevention in this verse is to the Walis, but according to other this is to the husbands who have divorced them while other say that it is to all persons. It would not be correct to base any argument on this Hadis. It may also be possible that Maaqil might have persuaded his sister and might have done this on account of his piety but this cannot be made basis for generalisation. Abu Bakar Jassas after relating the Hadith of Maaqil Bin Yasir has stated that this Hadith is not authentic according to Ahle-e- Naqal due to the fact that there is an unknown germ in the link of relators . . . .
20. Further on page 129 Aini has explained the Hadith but the father of Khansa Bint-e-Khizam Ansaria married her and she was not willing and so came to the Prophet who declared the Nikah at viod. Though in the words of Bukhari she sins a widow, but according to Sori she was adult and unmarried. In many sources of this Hadith it is not mentioned whether she was a widow or unmarried. Moreover, there are many other traditions like the Hadith of Jabir who said that a man married his unmarried daughter without her consent, and when she came to the Holy Prophet he declared the Nikah as void. Abdullah Ibn-e-Umar married the daughter of his maternal uncle who was given in marriage by her uncle without contest. She came to the Prophet and he declared the Nikah as void.
21. In Tuhaftul Ahawazi by Abdul Raheem Al-Mumbarak Furi after discussing the different sources of Hadis of Hazrat Aisha in Tirmizi and referring to the questions and replies of Alzohri the writer gives his opinion that the Hadis is weak for this reason.
22. In Muzeelul Ghawashi an Urdu commetary of Usul Ul Shahsi it is stated at pages 22 to 24 that the order of Allah Almighty, in verse 230 of Chapter 2 which means "until after she has remarried" is directed toward women in respect of their rights to marry........ It is evident from this that a married woman is entitled to wed herself and this order cannot be ignored on account of the tradition that the marriage of a woman without permission of wali (guardian) is void....... It is related from H. Aisha that in case a woman is married without the permission of wali, her marriage is void (and the void nature of the marriage is stressed by repetition of the word Baatil thrice). The view of Imam Malik and Imam Shafei is that want of permission by the Wali negates the Nikah but this tradition is not acceptable because H. Aisha..... has herself acted contrary to it and this would make it doubtful.
After this Hadith was related by her she married the daughter of her brother Abdul Rehman When Abdul Rehman was in Syria. When he returned and came to know about the marriage was displeased. This proves that this tradition is not worthy of being acted upon because the action of H. Aisha to the contrary proves that she must have come to know that this Hadith is either abrogated or weak. It cannot be said that she acted carelessly or in ignorance....... Same comment shall apply to other traditions related from H. Aisha that marriage without Wali is not valid and one who has no Wali, has the King as his Wali. Similarly, the tradition related from other to the same effect on which reliance is placed by shafei are also not free from weakness. Apart from this.......
There is a Hadith Sahih from Imam Ibn Abbas which is related by Muslim that the Holy Prophet said which means that a woman who has already once married is to be preferred in regard to her person over her Wali and permission (to marry) shall be obtained from an unmarried woman and her permission is when she keeps quite........ This Hadith is preferable and this funds support from the verse of the Holy Qur'an already referred to above...... The Hadith about the requirements of the Wali for Nikah is acted upon only in those cases where the marriage is not with the socially equal......
(But) Imam Abu Hanifa and Imam Shafei have differed on this point too. Thus if any adult woman marries without permission of Wali, according to Imam Abu Hanifa her Husband has a right to cohabit with her and he will be liable to pay her dower and maintenance. The husband can also divorced her and divorce given by him would be complete. According to Imam Shafei the husband cannot even cohabit since the Nikah is not valid in the absence of permission of the wali nor will the husband be liable to dower or maintenance.
23. It appears that Imam Abu Hanifa did not rely upon these traditions when he opined that the marriage of a woman is subject to her personal consent. This is clear from page 233 of the same book "Tuhatul Ahawazi".
"The Ulema have differed in making Nikah of a woman subject to the consent of the Wali. So most of them say that a woman will not marry herself and their argumets are based upon the above traditions. But Abu hanifa does not make the consent of Wali a pro-conditions of a woman's marriage. He is of the opinion is based on the analogy of Nikah with sale in which she is competent (as and adult) and he (Imam Abu Hanifa) Confines the operation of these traditions on non adult girl and thus by using analogical reasoning he traditions on non adult girls and thus by using analogical reasoning he limits the general sense of the tradition."
24. This opinion of Imam Abu Hanifa is to be found in all other books too see: "(1) Fathul Bari Sharh Sahih Buklhari by Ibn-e-Hajar Asqalani, Volume IX, page 182, printed by Darul Fikar, Beirut.
(2) Nailul Autar by Shokani, Volume V, Page 136, printed by Mustafa Albaby & Sons, Cario.
(3) Fiqhussumah by Syed Sabiq Volume II, Page 113, Printed by Darul Fikar, Beirut.
(4) Misqatul Mafatih Sharh Mishkatul Masabih by Mullah Ali Qari, Volume VI, Page 204, Printed by Maktaba Imdadiyya, Multan.
(5) Subulusslam by Kahlani Al-amir, Volume III, p. 117, Printed by Darul Fikar, Beirut.
(6) Badayatul Mujtahid by Ibn-e-Rushad, Volume II, Pages 6 and 7, Printed by Maktabatul Ilmiyya, Lahore.
(7) Al-Mughni by Ibn-e- Qudama, Volume VI, Page 487, printed by Maktaba Jumburiyya, Cario.
(8) Sharh Sahih, Muslim by Imam Naawi, Volume IX, Page 203, printed by Darul Fikar, Beirut.
(9) Ahkamul Qur'an by Abu Bakar Jassas Volume I, Page 401, printed by Darul Fikar, Beirut.
(10) Kitabul Fiqh Alal Mazahibil Arbaa (Urdu) by Allama Jaziri, Volume IV, Page 97, printed by Auqaf Department, Punjab, Lahore.
Also see Mst. Sughram Mai v. The State PLD 1980 Lah. 386."
25. It may be pointed out that the Hadith of Hazrat Aisha Which is the main plank of the shafies does not go to that extent since in case of cohabitation, the parties to cohabition are not to be charged with Zina; on the other hand the male has to pay the dower of the female which is paid in case of valid marriage.
26. Now I may produce the passages from Hidaya and Mullas Muhammadan Laws. In Hidaya the principle of Hanafi Law in thus stated:- "An adult female may engage in the contract without her guardian's consent ........ A woman who is an adult, and of sound mind, may be married by virtue of her own consent although the contract may not have been made or acceded to by her guardians."
27. In Mulla's Mohammadan Law 1980 Edition, p. 250 the difference of view of the Shafei and Maliki School of thought on the other hand is pointed out in these words: "Shafe'i School.- The consent at marriage should be of the wife. The Wali only communicated the wish of the bride. Muhammad Ibrahim v. Ghulam Ahmad (1862) Bom. H.C.R. 236 dissented from.
An adult virgin of the Shafei School can give herself in marriage through a Wali and the marriage is not valid because the father's consent was not obtained. The Wali's powers emanate from the authority of the woman. She may choose a remote relative as Wali in preference to a nearer one who is inimical to her interests.
A marriage is not valid unless consented to by an adult girl. Shafei and Maliki Schools hold that the consent must be given through a Wali.
Under Hanafi Law, the woman can give consent with or without a Wali."
28. This Citation lays down the correct law since according to the view of Imam Abu Hanifa, the Marriage of a woman is like the sale of her Property. Just as after achieving adulthood she has a right part with her own Property without seeking the permission of any one else, so she has the right to give over her person in marriage also without the consent of any Wali. The principle of law relied upon by the learned Sessions Judge is not correct.
9. As far as the plea of the petitioner that the persons, who witnessed the Nikah, were not related to her is concerned, suffice it to note that since marriage between the parties was solemnized against wishes of their families it cannot be believed that some immediate family members of the petitioner would have participated in the said marriage especially when there is great difference between the social/financial status of the parties. Further, as noted above, according to Para No.252 ibid the only requirement of the law is presence of two male or one male and two female witnesses at the time of offer and acceptance irrespective of the fact that they are closely related to the parties or not.
10. Now coming to the contention of the petitioner that her signatures and thumb impression, on the alleged Nikah Nama, were product of fraud and misrepresentation, I am of the humble view that that when a party alleges a specific fact it is bound to prove the same. Reliance in this regard can be placed on the cases reported as Allah Bakhsh and others v. Bakhsha and others (2003 SCMR 1011), Noor Muhammad v. Jamal Din and others (12000 CLC 305) and The HUB Power Co. v.
WAPDA (1999 CLC 1320). Insofar as the case in hand is concerned, though the petitioner alleged fraud and misrepresentation but she did not specify the same. Had it been sole allegation of fraud then it was exclusive duty of respondent No.3 to prove execution of valid Nikah but when the petitioner also alleged impersonation/misrepresentation she was bound to prove that who else was produced in her place at the time of alleged Nikah but having not done so she miserably failed to prove the allegations levelled in the plaint. The consequences of levelling vague allegation of fraud, without specification, in the pleadings has been dealt with by the superior courts in the cases reported as Khan Muhammad v. Muhammad Din through L.Rs (2010 SCMR 1351), Taj Muhammad Khan through L.Rs and another v. Mst. Munawar Jan and 2 others (2009 SCMR 598), Mst. Sahib Noor v. Haji Ahmad (1988 SCMR 1703) and Muhammad Haroon v. Mst. Razia Begum and 6 others (2001 CLC 810). If authenticity of the impugned judgments and decrees is adjudged on the touchstone of the afore-referred decisions of the Superior Courts, there leaves no ambiguity that no illegality has been committed by the courts below while dismissing the suit of the petitioner-plaintiff and dissolving the marriage between the parties on the basis of Khula.
11. During the course of arguments, learned counsel for the never resided with respondent No.3 in Valencia Town, Lahore as his wife. A cursory glance over the address of respondent No.3 mentioned in the plaint shows that the petitioner herself has provided address of respondent No.3 as that of Valencia Town, Lahore. According to respondent No.3, Nikah was performed by DW-3. Though Nikah Khawan (DW-3) was put to the test of lengthy cross-examination but the petitioner failed to have anything from his mouth suggesting that he did not perform Nikah between the parties.
12. Learned counsel for the petitioner argued with vehemence that time and place of performance of Nikah was not disclosed by respondent No.3. The said assertion of the petitioner stands negated from the fact that while replying to a suggestion, Nikah Khawan (DW-3) clarified that he performed Nikah at his residence. According to the practice in vogue, Nikah is either arranged in the house of the bride, mosque or any wedding hall where the parties choose to celebrate their wedding, thus, solemnization of Nikah in the house of DW-3 especially in the wake of the fact that it was run-away marriage, cannot be disbelieved.
13. As far as objection of the petitioner against performance of Nikah by DW-3 and completion of entries of Nikah Nama by his son, is concerned, suffice it to note that as per section 5 of the Muslim Family Law Ordinance, 1981, even a person who is not a Nikah Registrar can facilitate performance of Nikah between the parties with the condition that he would bring the factum of Nikah to the Nikah Registrar concerned. Insofar as the case in hand is concerned, when the petitioner-plaintiff failed to impeach the conduct of the Nikah Khawan towards performance of Nikah between the parties, mere completion of entries of Nikah Nama by son of DW-3 cannot be used to believe that marriage between the parties did not take place especially when DW-3 specifically repelled the suggestion of the petitioner-plaintiff side that the petitioner never visited Burewala.
14. It is relevant to note over here that Mirza Arshad Ali, DW-4, during his cross-examination, clarified that he met the petitioner first time at the time of Nikah which fact also affirms that the said witness witnessed Nikah between the parties. Likewise, DW-6, while clarifying certain points regarding marriage between the parties, stated that on 26.11.2013 respondent No.3 was on leave from Bank. He further stated that both the parties put their signatures and thumb impressions on Nikah Nama in his presence, thus, credibility of said witness cannot be doubted merely on the ground that he was not related to the petitioner especially when marriage between the parties was result of a love-affair.
15. It is imperative to note that the petitioner, in her affidavit, sworn at Burewala, attested by Mr. Imran Ali Sheikh Advocate (DW-5), stated that she contracted marriage with respondent No.3 on her own volition. The contents of the said affidavit also stands corroborated from the plaint filed by the petitioner at Tandlianwala. Had the said complaint not filed by the petitioner, she could easily move impugning veracity of the said complaint but admittedly till date no such move was made by her meaning thereby that the same was prima-facie filed by her but while succumbing to the pressure exerted by her family members, she had to file suit for jactitation of marriage out of which instant petition has emanated.
16. During the course of arguments, learned counsel for the petitioner has put much emphasis on the fact that contents of the Tenancy Agreement qua House No.106-P, Valencia Town, Lahore do not coincide with the stance taken by respondent No.3 and his witnesses during evidence. In this regard, I am of the view that when solemnization of a valid marriage between the parties is established from the statements of DW-3, DW-4 & DW-6, the said fact assumes secondary role.
Even otherwise, execution of said tenancy in favour of respondent No.3 lends support to his case that he managed residence for the petitioner at Lahore according to her status.
17. A bare perusal of order, dated 12.03.2014, passed by the learned Judicial Magistrate at Tandlianwala shows that the petitioner herself appeared before the court and made cursory statement wherein she stated that she was never abducted by anybody rather she has solemnized marriage with respondent No.3 on her own volition and free will and started living with respondent No.3 as his wife from 26.11.2013. Admittedly, till date the petitioner has not made any effort for cancellation of said statement which, being part of the judicial record, carries presumption of correctness.
18. There is no denying the fact that initially in suit for restitution of conjugal rights, respondent No.3 contradicted on the point of solemnization of Nikah and departure but subsequently, with permission of the Court, he filed amended plaint rectifying certain errors/omissions. In this backdrop, contents of un-amended plaint cannot be used to rely upon the acclaimed contradiction on the part of respondent No.3 while filing Written Statement and Suit for Restitution of Conjugal Rights.
19. It is interesting to note that on the one hand the petitioner is of the view that somebody else was managed by respondent No.3 in her place at the time of marriage but on the other she opposed application of respondent No.3 for comparison of her signatures and thumb impressions available on Nikah Nama. If the petitioner was sure about the fact that she did not sign/thumb marked Nikah Nama, she was supposed to give consent for their comparison to unveil the truth. Likewise, during evidence the petitioner side offered for virginity test of the petitioner but when respondent No.3 moved formal application in that regard, instead of fulfilling the undertaking given during the evidence, the petitioner opposed it tooth and nail which fact also supports plea of respondent No.3 that marriage between the parties was consummated.
20. During the course of arguments, learned counsel for the petitioner questioned authenticity of Nikah Nama on the ground that though the petitioner was resident of Lahore but her address in Nikah Nama was mentioned that of Burewala. The said stance of the petitioner stands negated from the contents of Nikah Nama inasmuch as according to entry against column No.4 of Nikah Nama, while incorporating permanent address of the petitioner, her temporary address was also mentioned. It was incumbent upon the petitioner to establish that on 26.11.2013 she was not available in Burewala rather she was present somewhere else but despite producing voluminous documentary evidence she failed to do so.
21. This Court has no sympathy with respondent No.3 but at the same time it has to decide the matter on the basis of available evidence. The entire evidence produced by the petitioner is suggestive of the fact that instead of claiming that no marriage was solemnized between the parties she took the plea that no Sharai marriage was solemnized between them. Marriages can be categorized as valid, invalid, void and voidable and the lacunas pointed out by learned counsel for the petitioner cannot be considered sufficient to render marriage between the parties as void or invalid as the irregularities, being of trivial nature, cannot be used to negate the contents of Nikah Nama which being a public document carries presumption of correctness.
22. It is very ironical to note that respondent No.3, during evidence as well as before this Court, produced photographs wherein the petitioner has been shown signing Nikah Nama and accompanying respondent No.3 in bridal suiting which is only possible between husband and wife but the petitioner side bluntly refused to recognize the petitioner in the said photographs.
23. The intimacy between the parties, as disclosed in the plaint, also lends support to the plea of respondent No.3 that the petitioner contracted marriage with her own but when faced with rigors of pressure of her family she opted to file suit for jactitation of marriage.
24. Now coming to request of learned counsel for respondent No.3 that since such marriages are rampant due to the material aired on electronic media, the media houses be bound down to censor vulgar, scandalous material ruining our society, I am of the view that since Pakistan Electronic Media Regulatory Authority (PEMRA) has been established by the Federal Government to cope with such complaints, it would be advisable for respondent No.3 or his counsel or any other member of the society to agitate said issue before the said forum.
25. As per law laid down by the Apex Court of the country in the case of Farhat Jabeen v.
Muhammad Safdar and others (2011 SCMR 1073) concurrent findings of facts recorded by the courts below cannot be upset in Constitutional jurisdiction until and unless they are proved to be perverse or result of arbitrariness which is not the position in the case in hand.
26. Now coming to the case-law, cited by learned counsel for the petitioner, I am of the view that the same is not applicable to the facts and circumstances of the instant case inasmuch as in the case of Matloob Hussain (Supra) the Apex Court of the country has held that when signatures/thumb impressions of bride were obtained on Nikah Nama, after abduction, the same did not constitute valid marriage rather the same was to be dissolved through decree for jactitation of marriage whereas in the case in hand according to the petitioner herself the alleged Nikah Nama was result of fraud and misrepresentation without levelling any allegation of abduction. Similarly, in the case of Mst. Kausar Parveen (Supra) it was held that when Nikah Nama has been impugned by any side it cannot be treated as a public document but the Nikah in the said case between the parties was disbelieved mainly for the reason that the marginal witnesses of Nikah Nama were not produced by the husband whereas in the case in hand respondent No.3 not only produced marginal witnesses but also the Nikah Khawan concerned. In the cases of Qalandari Bibi and Ruqayya Bibi (Supra) it was held that bride can appear through an authorized agent. Since this Court is not reversing the findings of the courts below on the said point, the said judgments are irrelevant. Now coming to the case of Hafiz Abdul Waheed (Supra) I have observed that in the said case a Larger Bench of this Court held that free consent of female is sine-qua-non for a valid marriage. Insofar as the case in hand is concerned, when signing and thumb marking of Nikah Nama by the petitioner was supported by her plaint filed at Tandlianwala, wherein her cursory statement was also recorded, it cannot be believed that her consent was not free especially when she was not only well-educated but also was of 27 years of age. In the case of Sardara and Allah Ditta through Legal Heirs (Supra) this Court held that in case where place, time and the person before whom the gift was made by the donor is missing the gift mutation cannot be sanctified whereas in the case in hand, the stance of the respondent No.3 regarding valid marriage stands endorsed from the contents of the Nikah Nama coupled with the statement of the Nikah Khawan and marginal witnesses in addition to the statement made by the petitioner herself in her complaint filed at Tandlianwala. Coming to the case of Mushtaq Ahmed Malik (Supra) this Court declared that voluntary portion of statement of a witness cannot be used to decide a question whereas in the matter in hand, though most of the witnesses also made voluntary statements but the courts below came to unanimous conclusion that valid marriage between the parties was established from the evidence, conduct and surrounding circumstances. In the case of Mst. Ramzan Bibi (Supra), the authenticity of the Nikah was discarded inter-alia for the reasons that witnesses of Nikah Nama were not produced which is not the position in the case in hand.
27. For what has been noted above, I see no force in this petition which is accordingly dismissed with no order as to costs.