Ghulam Mustafa Mughal, J.--The captioned appeal has been directed against the judgment and decree dated 12.07.2019, passed by the Shariat Appellate Bench of the Azad Jammu & Kashmir High Court in Family Appeal No. 116/2019.
2. The precise facts forming the background-of the captioned appeal are that the plaintif f-respondent, herein, filed a suit for jactitation of marriage against the defendant-appellant, herein, in the Cour t of Family Judge Muzaf farabad on 05.07.2018, alleging, therein, that she is legally wedded wife of one Ibrar Muzaf far with whom she has contracted marriage out of her free will on 23.06.2018. It was averred that her husband, Ibrar Muzaf far, does not belong to her tribe, as such, the defendan t in connivance with his family members, while adopting worst tactics, is trying to disturb their peaceful married life. It was further averred that a fabricated nikahnama has been prepared by the defendant in the back dates and a false F.I.R. has also been registered against the plaintif f and her husband in the offences under Section 10/11, 16/19, ZHA and 14 EHA, on the ground that Ibrar Muzaf far has abducted the plaintif f, whereas, fact of the matter is that she has married to him out of her free will and consent. It was prayed that the defendant may be restrained to claim the plaintif f as his wife and the Police may be restrained to proceed against the plaintif f as well as her husband Ibrar Muzaf far, in F.I.R. No. 37/2018. The suit was contested by the other side by filing written statement, wherein, it was claimed by the defendant that the plaintif f is his legally wedded wife and their nikah was solemnized on 08.10.2017, in village khilana Khurd, which was registered on 30.10.2017. It was stated that after marriage the defendant and the plaintif f went to District Ghizer , Gilgit Baltistan, and settled there for some time. It was further stated that some disputes arose between the defendant and the plaintif f due to which the plaintif f filed a suit for dissolution of marriage on the ground khula against the defendant but later on the disputes were settled and the suit was withdrawn by the plaintif f. It was claimed that thereafter they came to their native village and in the midnight of 22nd and 23rd June, 2018, the plaintif f was abducted by Ibrar Muzaf far who contracted subsequent nikah with her on 23.06.2018. It was further claimed that the subsequent nikah contracted on 23.06.2018 is null and void because under shariah and law, in presence of the earlier nikah of the plaintif f and the defendant, no subsequent marriage can be contracted. It was further claimed that the Family Court Muzaf farabad has no jurisdiction to entertain the suit for jactitation of marriage as the parties belong to village Khalana , Tehsil and District Jehlum Valley. The learned Family Court framed issues in light of the pleadings of the parties and asked them to lead evidence pro and contra. At the conclusion of the proceedings, vide judgment and decree dated 31.05.2019, the learned Family Court Muzaf farabad decreed the suit for jactitation of marriage.
Feeling aggrieved from the judgment and decree dated 31.05.2019, passed by the learned Family Court Muzaf farabad, the defendant/appellant, herein, filed an appeal before the Shariat Appellate Bench of the High Court on 15.06.2019 which after hearing the parties has been dismissed vide impugned judgment and decree dated 12.07.2019.
3. Ch. Shoukat Aziz, the learned Advocate appearing for the appellant argued with vehemence that the judgment passed by the learned Family Judge as well as the Shariat Appellate Bench of the High Court is illegal, perverse, erroneous and against the record. He further argued that it was proved through documentary evidence that Sonia Farooq, respondent, herein, married to Muhammad Shawal, appellant, herein, on 08.10.2017 and the Nikah was duly registered with the Nikah Registrar . He further argued that after Nikah , the respondent, herein, remained populated with the appellant, herein, in District Ghizer , Gilgit Baltistan and during population there ensued some disputes between them and she filed a suit for dissolution of marriage against the appellant, herein, on the ground of khula before the Family Judge Muzaf farabad which was subsequently entrusted to another Court. He added that during that period the respondent, herein, remained in shelter home. The learned Advocate submitted that after her release from shelter home she came to Muzaf farabad on suberdari of her Uncle and was abducted by one Ibrar Muzaf ffar. He further submitted that the respondent, herein, has allegedly contracted Nikah with Ibrar Mnzaf far which in presence of the 1st Nikah is even otherwise illegal and void. He added that a case was also registered against the respondent, herein, and Ibrar Muzaf far on 23.06.2018 at the local police station which has also been challaned. He further submitted that the judgment passed by the learned Family Court as well as the Shariat Appellate Bench of the High Court is against the record and suffers from misreading and non-reading of the evidence. He further submitted that as the respondent, herein, has herself, by filing a suit for dissolution of marriage on the ground of khula , has admitted the first Nikah and population with the appellant, herein, therefore, all the subsequent actions including the so called Nikah are illegal and void. He further submi tted that the documents produced by the respondent, herein, before the Family Court are bogus and concocted as in the affidavit executed by her, the respondent , herein, has deposed that she is going to contract marriage with some other person and she has allegedly contracted marriage with Ibrar Muzaf far. He further submitted that the first Nikah of the respondent, herein, was admittedly performed at her native town within the local limits of village Hattian Bala, hence filing of suit at Muzaf farabad was not warranted and the decree passed by the Family Judge Muzaf farabad was without jurisdictional competence but this fact has not been considered by the learned Shariat Appellate Bench of the High Court. In support of his submissions, the learned Advocate has placed reliance on the case reported as Muhammad Khan vs. Muhammad Khaliq & 2 others [2019 SCR 339].
4. Conversely , Mr. Muhammad Sagheer Javaid, the learned Advocate appearing for the respondent argued that the respondent, herein, has never been marri ed to the appellant, herein, and all the documents regarding performance of her Nikah with the appellant, her population with the appellant at District Ghizer and filing of suit at District Ghizer , are fraudulent and concocted as the same have not been proved by producing the attested copies of the original record. He further argued that the father of the respondent, herein, has been shown as her wali in the Nikahnama but fact of the matter is that he was abroad and was not present in the Nikah ceremony . The so called Nikah , according to the learned Advocate, has been contracted by some Pir of the father of the respondent, herein, which act is unlawful and no cogent evidence has been produced regarding the delegation of authority by the respondent, herein, to her father or his Pir in respect of Nikah . He further submitted that a lady under Islam has given choice to accept or reject the proposal of Nikah as well as appointment of Wali and any Nikah under coercion is, even otherwise, not valid. The learned Advocate lastly submitted that both the Courts below have rightly came to the conclusion that Nikah of the respondent, herein, with the appellant, herein, has not been proved.
5. We have heard the learned counsel for the parties and gone through the record of the case with our utmost care.
It may be stated that the claim of the appellant, herein, that his Nikah was solemnized with the respondent, herein, on 08.10.2017 at Khilana Khurd and thereafter she populated with him, firstly , in his native town, and then, at District Ghizer , Gilgit Baltistan, has rightly not believed by the Courts below . The essentials of a valid Nikah have been enumerated in Section 252 of the Muhammadan Law by D.F . Mullah, which is reproduced as under:-- "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 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 ordinan ce, 1961 every marriage solemnized under the Muslim Law shall be registered."
A perusal of the above would show that the Nikah should be performed in one meeting after proposal and acceptance in presence of the witnesses . In the present case, it is the stance of the appellant, herein, that the father of the respondent, herein, has contracted Nikah on her behalf as her wali. A perusal of the record shows that the father of the respondent, herein, was at Saudi Arabia at the time of solemnization of the Nikah . It is also alleged that the father of the respondent, herein, authorized his Pir for contracting the Nikah whose name is shown as Syed Raza Hassan Shah s/o Syed Akbar Shah, r/o Mansehra but no evidence has been led by the appellant, herein, in whose presence the father was given authority to contract marriage on behalf of the respondent, herein, and thereafter he further delegated the powers to his Pir namely Syed Raza Hassan Shah. It is important to mention here that neither the father of the bride/res pondent, herein, nor Syed Raza Hassan Shah has appeared in the Court to testify the Nikah as was alleged. The other witness namely Gul Hassan s/o Kala has also not been produced before the Court. Another fact which led the learned Family Judge for coming to the impugned conclusion is that the Nikah Khawan of the area was Qari Manzoor Abbasi who at the relevant time was not present and the disputed Nikah has been performed by Qari Anser who was not specifically authorized by Qari Manzoor Abbasi to perform the same. Only one witness i.e. Shameed regarding appointment of Wali has been produced whose evidence cannot be accepted in the peculiar circumstances of the case when there is a tussle between both the tribes over the Nikah , especially so, when there is no independent evidence. Even the witnesses shown to have attended the marriage ceremony have not disclosed that in their presence the respondent, herein, has authorized her father for contracting Nikah on her behalf and the father has further delegated the authority to his Pir for contracting the same. It may be stated here that a Muslim female of sound mind who attains the age of puberty can validly contract marriage with a person of her own choice and she cannot be sever her marriage/ Nikah so entered by her.
It is also settled that a marriage is not invalid in absence of consent of Wali So far as, the proof of marriage is concerned, the other formalities can be ignored and simple acknowledgment of husband and wife regarding their Nikah is sufficient to prove the same. In such circumstances, the mandatory requirement of presence of 2 witnesses can be ignored.
Reference may made to the cases reported as {{URDU TEXT}} [PLD 1982 FSC 42] and Hafiz Abdul Waheed vs. Mrs. Asma Jehangir and another [PLD 2004 Supreme Court 219] The strongest evidence against the respondent, herein, which has been relied 'upon by the appellant, herein, is that she filed a suit in. District Ghizer , Gilgit Baltistan: Subsequently she was sent to judicial lock-up and thereafter was released on the superdary of her uncle. The certified copies of the documents to prove the aforesaid claim have neither been produced by the appellant, herein, nor any reader of the Court has been examined. It appears that in view of the tussle between the parties, a deliberate attempt for involving the lady/respondent, herein, has been made which is against the fundamental rights enshrined in the. Constitution and casts a duty on the Court to protect a valid marriage under Article 3-G of The Azad Jammu & Kashmir Interim Constitution, 1974.
6. The question of jurisdiction of the Family Judge Muzaf farabad has also been raised by Ch. Shoukat Aziz, the learned Advocate for the appellant. This question was also raised before the learned Family Court which was decided against the appellant, herein and no further proceedings appear to have been taken to resolve this issue at any higher forum. Moreover , the suit filed by the appellant, herein, for restitution of conjugal rights at Haitian Bala has also been dismissed and no appeal has been filed against that dismissal order . Though, it was enjoined upon the Family Court to consolidate both the suits in order to avoid conflicting judgments/decrees but the needful has not been done and the parties to the proceedings have been sleeping over this issue. After dismissal of the suit for restitution of conjugal rights, there left nothing for the appellant, herein, except to drag the respondent, herein, into unnecessary litigation.
7. The additional reasons for maintaining the judgments of the Courts below are that the respondent, herein, is acknowledging/ owning her Nikah with Ibrar Muzaf far, therefore, in such circumstances, there is no alternate for the Court not to believe her statement, specially so, when Nikah of the appellant, herein, with the respondent, herein, is not proved. On the basis of the analysis of the evidence of the parties and their conduct, we observe with heavy heart that both the parties have come to the Court with unclean hands and tried to get the decision in their favour by producing bogus and concocted evidence and by suppressing the facts from the Court.
8. Sonia Farooq, respondent, herein, is in the shelter home. As her Nikah with the appellant, herein, has not been believed by the Courts below as well as this Court, therefore, she is allowed to live with her husband Ibrar Muzaf far and she is set free in presence of the S.H.O. Police Station City, Muzaf faraba d, who shall escort her to her residence/destination.
In view of the above finding no force in this appeal, the same is hereby dismissed. No order as to costs.