' This revision application under section 115, C.P.C. Is from the judgment dated 1st December,1981, passed by the District Judge, Hyderabad, in Civil Appeal No,199 of 1981, filed by the respondent against the applicants.
2. The relevant facts are that the respondent filed a suit for declaration and cancellation of Talagnama, dated 17th October,1980, alleging that the same was obtained forcibly, under section 7(3) of the Muslim Family Laws Ordinance,1961, in the Court of Senior Civil Judge, Hyderabad.
3. The applicants filed an application under Order VII rule 11, C.P.C. For rejection of the plaint on the grounds that the Court had no jurisdiction to entertain the suit, and the same was barred under section 5 of the West Pakistan Family Court Act,1964, under section 3 and of the Muslim Family Laws Ordinance, 1961, and under sections 42 and 56 of the Specific Relief Act.
4. The respondent filed objections to the application. However, the learned Senior Civil Judge, Hyderabad by the order, dated 11th August,1981, accepted the application, holding that the issue involved between the parties is regarding the marriage and Talaq, and under section 5 of th West Pakistan Family Court Act, 1961, jurisdiction of civil Court is barred and that only the Family Court has got jurisdiction to try a suit in the matters regarding marriage and divorce. He accordingly, rejected the plaint.
5. The respondent preferred an appeal against the order and the learned District Judge, Hyderabad, by the Judgment, dated 1st December, 1981, allowed the appeal holding that the appellants (respondent before me) suit was for cancellation of Talagnama alleged to have been obtained from him forcibly and the exclusion of jurisdiction of the Civil Court under section 5 of the West Pakistan Family Court Act, 1964, is in respect of the scheduled matters which are classified as dissolution of marriage, dower, maintenance, and jactitation of marriage, restitution of conjugal rights, custody of children and Guardianship. He stated that in the case the relief sought by the appellant (respondent before me) was the deed of divorce (Talagnama) might be called up and cancelled as the same was obtained from forcibly and that it was not initially a case of dissolution of marriage and accordingly he remanded the case for further proceedings as a civil suit in accordance with law.
6. Aggrieved by the judgment, as already stated, the applicants have filed this revision application.
1. I have heard Mr.Mirza Ghiasuddin learned counsel for the applicants and Mr. Abdul Hameed Khan learned counsel for the respondent.
8. The learned counsel for the applicants submitted that the District Judge, Hyderabad, has erred in holding that the matter did not relate to dissolution of marriage and consequently, further erred in holding that the civil Court had jurisdiction. In support of the contention the learned counsel relied on 1) Mst. Amina Begum v. Ghulam Nabi and 2 others PLD 1974 Lah.
578. Tajoo v. Mst. Sattaran PLD 1974 Lah. 104 and 3 Mst. Zohra Bibi v. Manzoor Ahmad and 2 others PLD 1975 Lah.
318.
9. Before I consider the contention, I may state that the respondent in his suit, besides claiming cancellation of Talaqnama has also claimed for an injunction to restrain the applicants form remarrying his wife, Mst.Saleh Khatoon, till the suit is finally decided.
10. Now, reverting to the contention I may observe that the respondent by seeking the relief of cancellation of Talagnama on the ground that it was obtained from him forcibly, in effect has calimed that he has not divorced his wife Mst.Saleh Khatoon and his marriage with her still subsisting. It is, therefore, clear that the relief elaimed in the suit in pith and substance relates to dissolution of the marriage or jactitation of marriage, therefore, it falls within the jurisdiction of the family Court. The cases relied upon by the learned counsel for the applicants support the view I have taken. It was observed in Mst.Amina Begum's case by Aftab Hussain, J. (as his lordship then was at page 81 of the report as follows: "The object of the Act is to give exclusive jurisdiction to the Family Courts in all matters relating to marriage. A suit for affirmative declaration about existence or subsistence of marriage is as much a suit relating to marriage as a suit for the negative declaration. The wider meaning of the expression "Jactitation of Marriage" will therefore, advance the object of the Act. On principle also there appears to be no difference between a case where the party aggrieved against the false claim comes to the Court first or the other party invokes the jurisdiction of the Court. I do not see any reason why a suit for jactitation of marriage will not include a suit for declaration by a person falsely posing that he is the spous of the defendant. In my view any declaration as to the status where one party alleges marriage and the other denies, it would amount to a decree for jactitation of marriage".
11. In the case of Tajoo also Aftab Hussain, J. After referring to Halabury's laws of England (Third Edition) Vol.12, page 223, and the English decision in Goldstone v. Goldstone (1922) 127 L T R 32), and an Indian decision in Mir Azmat All v. Mahmudul Nisa (I L R 20 All. 96) and paragraph 39-B of Wilson's Anglo Muhammad Law, at page 107 of the report observed as follows: "It is clear from all these citations that a suit for a declaration that the defendent is not the husband or wife of the plaintiff and that the defendant alleges to be the wife or husband of the plaintiff, 'is a suit for jactitation of marriage. The present suit falls under this category and could therefore, be filed only before a Family Court.'
10. I must also refer to the case of Mst. Zohran Bibi in a bit more detail. In this case the plaintiff Manzoor Ahmed filed a suit to the effect that he had divorced Mst. Zohran Bibi and the divorce had become effective since 30th November,1967. He had also sought injunction against two Union Committees to the effect that they should issue divorce certificate in his favour. The suit was dismissed. Manzoor Ahmed filed an appeal which was allowed by the learned Additional District Judge, Lyallpur, therefore, Mst. Zohran Bibi filed Second Appeal which came up before Muhammad Afzal Zullah,J. And his Lordship in paragraphs 6 and 7 of the report at page 321 observed as follows: "6.-Coming to the merites of the contention raised in this case, learned counsel for the respondent could not deny that in the contents of the plaint, it is asserted as one of the basis of the suit that the appellant having been divorced by the respondent through an effective Talaq, continues to harass him by claiming herself to be his wife and seeking remedies against him accordingly. It also is an admitted position that the respondent claimed in the plaint that on account of talaq the appellant is no more his wife but despite that she and her co-defendants were denying these facts, therefore, a cause of action had arisen. In these circumstances, learned counsel had to admit that in pith and substance the suit was for declaration that by operation of the Talaq having become effective, the appellant could not claim to be the would respondent's wife. That being the position, his case would be covered by those of Mst. Amin Begum and Tajoo relied upon by the learned counsel for the appellant. If that is so, the civil Court would have no jurisdiction in the matter because this suit for jactitation of marriage would be exclusively triable by a Family Court. I hold accordingly, notwithstanding the fact that no cross-objection was filed before the first appellate Court, as it being a question of jurisdiction can be raised in this appeal and in any case under order XLI, rule 33, the first appellate Court could, despite absence of any cross-objection have decided the point of jurisdiction in favour of the present appellant (respondent before that learned Court).
7. In the light of the above discussion, this appeal is allowed. The judgments and decrees of both the learned Courts below are set aside and it is directed that the point be returned to the plaintiff/respondent for presentation to the proper Court. There shall be no order as to costs."
11. In the present case also, as stated earlier, the respondent was seeking declaration that Talaqnama having been obtained forcibly, was voidable and was liable to be cancelled and he continued to be the husband of Mst. Saleh Khatoon. Therefore, such a suit is triable exclusively by the Family Court.
13. The judgment of the learned District Judge, is therefore, partly liable to be set aside. IInd R.A.
There is yet another aspect which must be mentioned. The learned Civil Judge, had rejected the plaint though he should have returned the same for presentation to the Family Court. I am informed that the same Judge was exercising the powers of both the civil Court and the Family Court. In such circumstances the plaint should have been treated as one filed in the Family Court and he should have proceeded with the suit accordingly. I, therefore, while maintaining the order of remand, set aside the order remanding the case to civil Court; and remand it to the Family Court trial according to law.
14. I may mention that it was submitted by Mr.Ghiasuddin that Mst.Saleh Khatoon has already remarried and she has got two children from the second marriage and in such circumstances the case should not be remanded but the relief should be moulded according to the altered circumstances , in order to avoid multiplicity of the proceedings, to shorten the litigation, to complete justice between the parties and in the larger interest of justice.
15. However, Mr.Abdul Hameed Khan refuted the claim of Mr.Ghiasuddin that Mst. Saleh Khatoon has contracted second marriage and has two children. In these circumstances it is not possible to accede to this request.
16. Parties are left to bear their own costs in the circumstances of this case.