' The petitioner filed a habeas corpus petition saying that his wife respondent No, 2 was being illegally detained by her mother. The respondent appeared in Court and denied being wife of the petitioner. The petition was dismissed. He then, filed a suit for restitution of conjugal rignts on the ground that he was married with the respondent No, 2 on 29-10-1978 and that she had gone to her mother on a festival but had not returned. The suit was filed on 29-11-1979. In reply, the respondent No, 2 stated that she had never married the petitioner and that the petitioner was her uncle. The following issue was framed:- {{URDU TEXT}} 'The petitioner produced a Nikahnama and an affidavit of the respondent in support of the tact of marriage having taken place. The respondent No, 2 in her evidence stated that the signatures on the Nikahnama and the affidavit were forged. She had never contracted marriage with the petitioner. The learned Judge, Family Court, Lahore held that "as the Nikah was registered according to Muslim Family Laws Ordinance, 1961, unless the same was set aside by a competent Court, the jurisdiction of this Court was barred under section 23 of the West Pakistan Family Courts Act, 1964. The same holds the field and it is conclusive proof that the marriage was solemnized and the defendant (respondent No, 2) was a party to that out of her own free will and consent". He ultimately decreed the petitioner's suit for restitution of conjugal rights, vide, order (IAA 29-6-1983.
The respondent No, 2 filed an appeal and the learned Additional District Judge, Lahore held that "I agree with the learned trial Court that it was not competent to go into the validity of any marriage which is registered in accordance with the provisions of the Muslim Family Laws Ordinance, 1961, as has been provided in section 23 of the West Pakistan Family Courts Act, 1964" He further observed that "I also agree with the learned trial Court that marriage between the parties still subsists and it will hold the field unless it is set aside by the competent Court." Finally, he dismissed the appeal, vide order dated 19-1-1984.
2. Learned counsel for the petitioner as well as the petitioner who is present in Court have said that they have heard that the respondent No, 2 has got re-married.
3. The respondent filed a suit for jactitation of marriage on 26-2-1984. In this suit the petitioner filed an application saying that the decision in the previous suit of the petitioner for restitution of conjugal rights, the issue was decided that there was a valid marriage between the parties, therefore, the present suit of respondent No, 2 for jactitation of marriage is incompetent. The previous decision on the issue will operate as res judicata 'I his application was filed on 24-10-1984.
The application has been dismissed by the learned Judge, Family Court, Lahore, vide order, dated 10-6-1985 with the observation that the "learned Judge Family Court as well as the learned appellate Court however were pleased to observe that the Nikahnama is a registered document according to the Muslim Family Laws Ordinance, 1961, the same holds the held unless it is set aside by any competent Court of law, as the jurisdiction of the Court is barred under section 23 of W. P.
Family Courts Act, 1961, to go into the vires and validity of the marriage registered in accordance with the Muslim Family Law Ordinance, 1961, in a suit for restitution of conjugal rights." He further observed that "In the earlier round of litigation, the learned Judge, Family Court as well as learned appellate Court has not given any findings regarding the validity of the Nikahnama in view of the provisions as contemplated in section 23 of the Family Courts Act. The issue raised in the instant suit was not directly and substantially in issue in the previous filed by the applicant defendant against the respondent plaintiff and similarly the same was not finally adjudicated upon by any competent Court of law, as alleged by the applicant. The contention of the applicant is even stands rebutted by the observations recorded in the judgments aforementioned." This is challenged by the petitioner through the afore-titled Constitutional petition.
2. Learned counsel for the petitioner who was thoroughly prepared on facts and the law applicable, has submitted that in the suit filed by the petitioner for restitution of conjugal rights the precise issue was about the marriage and its legal effect. In proof thereof Nikahnama was produced.. So also the affidavit of the respondent No, 2 made before the District Magistrate. The Nikah Registrar was produced who had performed the marriage ceremony. The respondent in her statement stated that the documents were forged and no Nikah had taken place. The Judge, Family Court as well as the learned appellate authority held that the marriage did take place between the parties. It is, therefore, the learned counsel contended, the decision on the issue regarding the validity of the marriage which must necessarily operate as res jadicata in the suit of the respondent for jactitation where she has alleged that there had never been a marriage and the documents were forged. He submitted that the plea which the respondent did take previously could have been taken in the earlier proceedings and for that reliance was placed on Nazar Qasim v. Mst. Shaista Parveen (1).
3. The learned Judge, Family Court as well as the learned Appellate authority have proceeded on the basis that when the Nikahnama produced was registered in accordance with the Muslim Family Laws Ordinance, 1961, the Family Courts were barred to question the validity of the marriage in view of the provisions of section 23 of the West Pakistan Family Courts Act, 1964, and consequently, had not dealt with the plea of the respondent that the Nikahnama produced by the petitioner was a forged document. The plea had been taken and the issue &allied by the Judge, Family Court as quota above, was comprehensive enough to decide the controversy fully from all angles. In view of what is going to be said a little later no final opinion is being expressed regarding the contention of the learned counsel for the petitioner that a decision on the issue like this, in a suit for restitution o conjugal rights, will operate as res judicata in a subsequent suit o jactitation because that is not necessary or essential in the facts on this case as not only the plea taken by the respondent No, 2 that th Nikahnama produced on be:m.1f of the petitioner was a forged document, was not adjudged by the Judge, Family Court and the appellate autaority but they had expressly held themselves unable to do so in view of the provisions of section 23 of the West Pakistan Family Courts Act, 1964, which reads as under:- "A Family Court shall not question the validity of any marriage registered in accordance with the provisions of the Muslim Family Laws Ordinance, 1961, nor shall any evidence in regard thereto be admissible before such Court."
' Therefore, not only the issue was not 'finally' decided by the Judge, Family Court and the appellate authority and the provisions of section 11 of the C. P. C. Would not be applicable but also the learned Judge, Family and the appellate authority in the first round of litigation initiated by the petitioner in the suit for restitution of conjugal rights, bad expressly held that they had no jurisdiction to determine the plea. Now, if on the basis of that plea the respondent has filed a suit for jactitation of marriage, it is not open to the petitioner who had accepted the judgments in the previous litigation to question the jurisdiction of the Judge, Family Court to determine the plea of the respondents that the documents in support of the Nikah were forged.
4. In view of what has been stated above, there is no force in this petition and the same is, accordingly, dismissed in limine.
(1) 1979 CLC 462