' In this case applicant Mst. Saleema Bibi brought a suit against Muhammad Yousaf for jactitation of marriage before Judge Family Court, Faisalabad. Muhammad Yousaf also instituted a suit for restoration of marital relations against Mst. Saleema Bibi. Later family suit for restoration of conjugal rights sub judice before Judge Family Court at Jaranwala was transferred vide order, dated 19-12-1979 by learned District Judge, Faisalabad, to be tried and decided by the learned Judge Family Court where jactitation suit filed by Mst. Saleema Bibi was already awaiting adjudication. On transfer, the two suits which raised common questions of fact and law were consolidated for a joint trial by the learned trial Judge/and and follow1ing issues were settled ]URDU TEXT] ' Both Mst. Saleema Bibi and Muhammad Yousaf produced evidence and plaintiff Mst. Saleema Bibi produced some documents also in support of her case. Reference to them will be made at appropriate stage of discussion. Muhammad Afzal P.W. 1, Noor Muhammad P.W. 2 and Mst.
Saleema Bibi herself appeared in support of her case. Muhammad Yousaf defendant appeared in the witness-box and was supported by Abdur Rehman and Sardar Muhammad, two D.Ws. Learned Judge Family Court vide judgment, dated 22-6-1981 dismissed the suit for jactitation of marriage and decreed the claim for restoration of marital relationship in favour of Muhammad Yousaf. She filed an appeal against judgment, dated 22-6-1981 before the learned District Judge, Faisalabad.
This appeal was entrusted to Haji Muhammad Akram Baitu, learned Additional District Judge, Faisalabad District. Appeal did not bring any luck to Mst. Saleema Bibi as the same was dismissed on 26-6-1983 by the appellate Court. Findings recorded by the Judge Family Court were maintained in their entirety. Issues Nos.1 and 4 were found in favour of writ petitioner (Mst. Saleema Bibis) while findings on crucial issues Nos. 2, 3 and 4-A were rendered against her. Consequently, her claim failed and that of Muhammad Yousaf was decreed against her. In this background, she has invoked jurisdiction of the High Court under Article 9 of the Provisional Constitution Order, 1981 read with Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Respondent Muhammad Yousaf has not appeared and has been ordered to be proceeded against ex parte.
Constitutional petition has come up today for hearing in presence of Mr. Salim Saigal, Advocate, who appeared on behalf of the writ petitioner.
2. Controversy raised in the constitutional petition has certain peculiar features of its own which are rather unfortunate also. For proper appreciation and comprehension of the points requiring decision in the petition, it will be useful to narrate the facts so far as relevant. Mst. Saleema Bibi was married to Muhammad Yousaf some 15 years ago. Exact date of marriage is not known. Four children were born out of this wedlock. Out of these, one has expired while three male children of various ages are alive and living with their mother Mst. Saleema Bibi. Luck did not favour the couple. Misfortune and ill-luck arrested their future peaceful happy living together. Relations between them became severely strained which compelled the lady to pray for divorce from her husband Muhammad Yousaf. Suit instituted for divorce by her ended in some settlement between the spouses. This suit, therefore, was withdrawn on the basis of the compromise arrived at between the parties. However, the terms settled did not materialize. It is at this juncture that the events took a serious turn, Muhammad Yousaf is alleged to have sent a written divorce on 14-1-1978 Exh. P. 2 dissolving the marriage tie between the parties. Divorce notice was sent to the Chairman Arbitration Council, Faisalabad under provisions of Muslim Family Laws Ordinance, 1961 and intimation was despatched to Mst. Saleema Bibi also. Ch. Qadir Bakhsh, Special Magistrate/Chairman Arbitration Council issued a certificate Exh. P. 6 on 10-8-1978 making the divorce Exh. P 2 effective. Armed with this certificate, Mst. Saleema Bibi entered into a new wedlock with her present husband Muhammad Latif on 12-6-1978. In the result of the new Union, she has given birth to four children. Mst. Saleema Bibi is still residing with her new husband. As Muhammad Yousaf still laid claim on her person, she instituted a suit for jactitation of her marriage which as noted above has failed. Pivotal issues Nos. 2 and 3 were found against her. Without any discussion worth the name on Issue No. 4-A, whether Muhammad Yousaf was entitled to restitution of conjugal rights in these changed cirumstances, both the learned Judges i.e. Judge Family Court and learned Additional District Judge have found in favour of Muhammad Yousaf. Talaq Exh. P. 2 on which the fate of the whole case hinged bore the signatures of Muhammad Yousaf and certain other persons whose respective names appear on the document Exh. P.
2. Courts below were of the view that since Mst. Saleema Bibi, the beneficiary under the divorce Exh.
P. 2, has not produced these persons in support of the plea of divorce, she had failed to discharge heavy burden which lay upon her to prove the factum of divorce. Certificate issued by the Chairman Salsi Council rendering divorce effective under the provisions of Family Laws Ordinance was found to be of no avail in the circumstances.In the absence of proper proof of divorce by Muhammad Yousaf snapping the marital tie effectively, it was found that conjugal relationship still subsisted in between the parties and consequently decree directing restitution of conjugal rights was passed by the trial Court and maintained on appeal by the learned Additional District Judge, Faisalabad.
3. Learned counsel contended that the provisions of Code of Civil Procedure except sections 10 and 11 and that of the Evidence Act have been kept apart from proceedings before the Family Court under West Pakistan Family Courts Act, 1965. Purpose of exclusion according to learned counsel was that the Family Court should proceed to decide the family disputes unhindered by the technical and cumbersome procedure applicable to the trial of civil suits by the civil Courts. It was with this purpose that learned counsel contended that Family Court, to avoid injustice and to arrive at correct and just conclusion could itself have summoned these witnesses. Further, the Court could have got the admitted signatures of Muhammad Yousaf available on plaint (restitution suit), written statement in jactitation suit and his powers-of-attorney executed in favour of his counsel, with the alleged disputed signatures appearing on Exh. P. 2 examined by an expert and even if this was not considered possible, could itself, have carried out the examination for the necessary purpose of finding out the real truth. Mere non-production of the witnesses to the Talaq P. 2 were in itself not a very weighty consideration to find against Mst. Saleema Bibi. Divorce according to learned counsel for the petitioner was a genuine document and Muhammad Yousaf after having divorced Mst. Saleema Bibi, through a mischievous design, has started haunting her to ruin her present family life.
4. It is admitted that prior to Talaq Exh. P. 2, a suit for divorce was instituted against Muhammad Yousaf by Mst. Saleema Bibi to get rid of the marriage contract. It is also proved on record that parties arrived at some compromise, terms whereof are available in Exhs. P.1, P. 3 to P.
5. However, she did not join Muhammad Yousaf in pursuance to the said adjustment. Thereafter Exh. P. 2, a Talaq was sent to dissolve the marriage. Certificate issued by Mr. Qadir Bakhsh, Chairman, does disclose that the parties did not appear before him for the purposes of effecting any reconciliation. Taking the divorce to be a genuine document, the said Chairman rendered it effective after expiry of 90 days from the date of its receipt. Only point, therefore, that arises for consideration is whether Exh. P. 2 a Talaq was issued by the former husband and that whether it has effectively separated the spouses rendering them free to chalk out their future programme.
The Courts below have heavily leaned against the petitioner on the ground that she had not produced those witnesses whose name appeared on Exh. A P.2. I have not been able to appreciate this reasoning nor was this so weighty and vital a circumstance against Mst. Saleema Bibi. She had stated that Exh. P. 2 (divorce) was sent to her by Muhammad Yousaf. It was neither written in her presence nor signed by Muhammad Yousaf and the said witnesses in her presence. How could she know who these persons were. If anybody could have the knowledge, it was Muhammad Yousaf alone. He did not utter a word about them in his statement, rather observed discreet silence. He did not deny his signatures on Exh. P. 2 in his examination-in-chief, but did so, in cross-examination when learned counsel who was appearing for the writ petitioner before the trial Court in his own wisdom sought clarification of the matter from him. This provided him a chance to deny his signatures on Exh. P.
2. This lukewarm attitude may provide some clue about his position vis-a-vis Exh. P.
2. Non-production of witnesses whose names appeared on Exh. P. 2 were not persons of her choosing and may not be known to her. In these circumstances expecting her to produce those persons in evidence was asking too much. Decision of the Courts below, therefore, proceeded absolutely on irrelevant considerations when deciding issues Nos. 2 and 3 against Mst. Saleema Bibi. Basic approach of the two Courts, to say with respect, was incorrect and this alone led them to untenable conclusions. The Court could have easily resorted to comparing the signatures of Muhammad Yousaf appearing on Exh. P. 2 with his admitted signatures on the plaint (in a suit for restitution of conjugal rights), written statement in suit for divorce, powers-of-attorney available on record, or dispute could well have been resolved through the services of a handwriting expert. This could have really facilitated the Court's task in reaching the correct conclusion which would have also served the cause of truth. There were no fetters placed on the powers of the Court under the provisions of the West Pakistan Family Courts Act, 1965 to adopt such a procedure in its persuit to find out truth. It is too well-settled proposition of law to be reiterated that Court should proceed on the premises that every procedure is permissible B unless a clear prohibition was found against it in law. The Court in such circumstances cannot and should not sit like a distant spectator to witness a legal battle being fought it by two adversaries. It should and must, when the circumstances so demand, exercise its own powers to prevent the course of justice being deflected from its true path. In the family disputes, this is all the more necessary and may be this was the reason for enacting a special statute conferring exclusive jurisdiction on the family Courts to decide these specified family disputes. When the matter is looked at from this angle, I am of the firm view that the Courts below have not exercised their jurisdiction properly in accordance with law which clearly vested in them. Omission to compare itself or get compared through a handwriting expert, the signatures of Muhammad Yousaf has caused grave miscarriage of justice.
Mst. Saleema Bibi on the basis of a certificate making the divorce effective has entered into a contract of second marriage and has born four children. These four innocent children for no earthly fault of theirs' will stand haunted with the stigma of bastardy throughout their lives which in the background of her own society is the worst abuse. They do not deserve this punishment. Learned Courts below, if they had bestowed a little more careful attention to this human problem, it could not have taken the present unhappy turn, not only adversely reflecting on the future of Mst.
Saleema Bibi but her four children also. There is yet another disturbing feature. Learned Courts below have without discussion worth the name after finding Issues Nos. 2 and 3 against Mst.
Saleema Bibi have decreed Muhammad Yousaf's suit for restitution of conjugal relations in a way directing Mst. Saleema Bibi to rejoin marital bed with Muhammad Yousaf. Could such a relief for restitution of conjugal rights which rested in the discretion of the Court be justifiably granted in the present circumstances, required more and serious attention of the family Court. If a person (husband) seeks the assistance of the Court, to compel his wife to live with him, against her wishes on the pain of severe penalties including attachment of her property etc. , she is entitled to raise the question whether the Court as a Court of equity in its conscience would really compel her to share bed and cohabit with such a person. In the case under consideration, the woman has contracted second marriage, is living with him and has already produced four children from him.
She is also carrying the burden of earlier marriage in bringing up the three children born out of the wedlock with Muhammad Yousaf. Had it been a matter in appellate or revisional jurisdiction before me, I would have unhesitatingly decided the whole controversy myself without troubling the Court below, but sitting in constitutional jurisdiction, this Court cannot assume the role of a Court of appeal for the purpose of arriving at its own conclusions both on facts and law after reappraisal of the evidence adduced before the trial Court. It is the function of the Courts which are invested with exclusive jurisdiction under Family Courts Act, 1965 which must first be allowed to perform their powers and exercise their jurisdiction in accordance with law subject to the supervisory jurisdiction of the High Court in constitutional jurisdiction.
'I have anxiously examined the question whether the case after allowing the writ petition be remitted to learned Judge Family Court to redecide or to learned District Judge to re-examine the matter in appeal and then resolve the controversy. After careful deliberation which has given me some anxious moments, I have decided to send the case to learned District Judge, Faisalabad. Writ petition, consequently is allowed, judgment, dated 26-5-1983 passed by the learned Additional District Judge is set aside and declared to have been made without lawful authority. Result is that the learned District Judge will redecide the appeal in accordance with the law and the observations made in the preceding paragraphs. As respondent has not turned up to contest the constitutional petition, therefore, I leave the parties to bear their own costs. Records be immediately sent to the Court of learned District Judge, Faisalabad without least delay to enable him to proceeding the matter. Mst. Saleema Bibi is directed to appear before the appellate, Court on 20-12-1984. In case she fails to enter appearance on the date fixed learned District Judge is directed to issue a fresh notice to her.