JUDGMENTABDUL SHAKURUL SALAMJ.- Petitioner filed a suit for jactitation of marriage on 2.3.1981.
Respondent filed a suit for restitution of conjugal rights on 5.3.1981. Respondent resisted the suit of the petitioner by filing written statement on 29.11.1981. After failure of pre-trial reconciliation efforts following issues were framed by the learned Judge, Family Court, Dera Ghazi Khan on 1.12.1981:- 1) Whether this suit is not maintainable in the present form?2) Whether the plaintiff is major? If so, its effect on the present suit?3) Whether the plaintiff is legally wedded wife of the defendant?4)
Relief.
Respondent produced his evidence about the Nikah and the fact of the petitioner being major of 18 years at the time of Nikah. He concluded his evidence on 2.3.1982. The petitioner filed an amended plaint on 10.9.1983. Saying that even if Nikah was proved she had repudiated the same by exercise of option of puberty. Written statement was filed by the respondent on 26.10.1983. The petitioner concluded her evidence on 17.9.1985. On 19.2.1986, the learned Judge, Family Court, observed that now it has been noticed that inadvertently the suit for restitution of conjugal rights pending before the Court had not been consolidated though proceedings continued alongwith the file i.e. Of the suit for jactitation of marriage etc. This is consolidated with the suit for restitution of conjugal rights and following additional issue is framed:- 3-A) Whether the defendant is entitled to decree for rcstitutin of conjugal rights?O.P.D.It was further recorded that the counsel for trhe parties rely on the evidence already produced. Do not want to produce further evidence and do not object to the consolidation of the suit alongwith the other i.e. Of restitution of conjugal ritghs . Request for time for arguments.
After hearing the arguments the learned Judge Family Court observed that marriage was performed and at that time the petitioner was 18 years of age. Also that the respondent was entitled to decree for restitution of conjugal rights. He therefore, dismissed the petitioner's suit and decreed that of the respondent vice judgment and decree dated 27.2.1986. The petitioner filed an appeal which has been dismissed by the learned District Judge, Dera Ghazi Khan vide judgment and decree dated 21.6.1986. The petitioner has filed this Constitutional petition.
2. Learned counsel for the petitioner has vehemently contedded that the respondent's suit for restitution of conjugal rights could not be consolidated at the late stage and notwithstanding the no objection of the learned counsel for the petitioner for doing so it was illegal. Secondly, marriage was never performed and even if it was so the petitioner was minor at the time of Nikah and she had repudiated the same on attaining puberty.
3 Learned counsel appearing for the respondent-husband has controverted the submissions and supported the judgments of the two Courts below.
4. Taking the second submission of the learned counsel for the petitioner that marriage was not solemnized and even if so she had repudiated the same by exercise of option of puberty, it may be noticed that the findings have been arrived at on the basis of documentary evidence of Nikahnama Ex.D.l, testimony of Nikah Khawan and other witnesses including petitioner's own father Lalu who had appeared as P.W.2 and had said that his age was 60/70 years. He was married 24/25 years ago. The petitioner was born 3 years later of his marriage. The statement was made on 11.4.1985. If in 1985, 24/25 years has gone by of his marriage. It would be about 1960 that he was married and if the petitioner was born in the third year, she would be born about 1963 and at the time of her suit in 1981 she would be about 18 years i.e.Major.
After weighing the evidence of both the parties, if the two Courts below have come to the conclusion that the marriage did take place when the petitioner was of about 18 years, the conclusion is one of findings of facts and after going through the entire evidence I find no justification to interfere in the findings of facts in exercise of Constitutional jurisdiction* The contention to the contrary is, therefore, without force.
5. As regards the first contention that the respondent's suit for restitution of conjugal rights could not be consolidated at late stage inspite of no objection of the learned counsel for the petitioner, it need only be said that the learned counsel was representing the petitioner duly appointed and he had the right to make the statememt agreeing to the consolidation of the two suits which were simultaneously proceeding, though without formal order. It was technical matter and the forum was domestic not bound by strict rules of procedure. Moreover, the petitioner did not raise any such objection in her grounds of appeal before the learned District Judge. Ingenuity of the learned counsel for the petitioner now appearing for her can be no avail at this stage. So also the contention that the petitioner had no opportunity to produce evidence to resist the suit for restitution of conjugal rights as her own counsel had said after framing of the issue 3-A on the point that he would rely on the evidence already recorded and did not want to produce any further evidence. Contention raised at the last stage that the decree of restitution of conjugal rights would operate as res judicata if the petitioner were to file a suit for dissolution of marriage is without force for the reason that if there be grounds for dssolution of marriage and are urged those would obviously be adjudicated upon in accordance with law.
6. For the foregoing reasons, I find no force in this petition. It is accordingly dismissed but in the circumstances the parties are left to bear their own costs.