' In the suit brought by respondent herein in the Family Court, Sialkot (respondent No,3) on 17-4- 1993, it was pleaded that plaintiff-respondent married petitioner herein on 19-10-1975 but due to differences the plaintiff divorced petitioner on 22-6-1,989. Copy of the divorce was sent to respondent No,2 as required under section 7 of the Muslim Family Laws Ordinance, 1961, who instead of proceeding to deal with it within time prescribed by section 7 (ibid), in conspiracy with petitioner-defendant delayed action for six months and ultimately issued a certificate that the divorce was ineffective. According to the case of the plaintiff-respondent, by operation of law the divorce became effective on or about 22-9-1989, 90 days after the date of the divorce notice and it was not within the legal authority of respondent No,2 to decree that the divorce was ineffective. A decree for jactitation of marriage was prayed for in the words that the petitioner ceased to be the wife of the plaintiff-respondent with effect from 25-6-1989, the date of dispatch of notice to respondent No,2 and the petitioner herself to be the wife of the plaintiff-respondent on the ground that the divorce was ineffective, as held by the other defendant. A further declaration was sought that the defendant-Chairman was obliged in law to issue a certificate declaring that the divorce has become ineffective. It was further pleaded that initially the plaintiff had filed a suit in the Civil Court on 2-5-1991 but plaint was rejected under Order 7, Rule 11, C.P.C. By declaring that the suit essentially was that of jactitation of marriage and should be filed in the Family Court which has the exclusive jurisdiction under section 5 of the Family Courts Act, 1964. The suit was contested by the petitioner on the grounds inter alia, that the same was not maintainable in the present form. Other allegations in the plaint were denied and it was claimed that the defendant wife did not receive any divorce or notice and as such the suit merits dismissal. Keeping in view the pleadings of the parties, only the following issues were framed:--
(1) Whether the plaintiff has divorced the defendant No,2 on 22-6-1989, if so. From what date the divorce was effective? OPP
(2) Whether the plaintiff is entitled to the decree for jactitation of marriage? OPP
(3) Relief.
' The family Court duly tried the issues and, vide judgment dated 16-2-1995, decreed the suit. This constitutional petition is directed against the abovesaid judgment and decree.
2. Preliminary objection has been taken on behalf of the respondent-husband regarding the maintainability of this Constitutional petition on the ground that the decree was appealable under section 14 of the Family Courts Act, 1964, and the petitioner's having not availed of the wholesome and alternate adequate remedy, this petition cannot proceed. In reply it has been contended that since the petitioner is impeaching the decree on the ground of absence of jurisdiction, resort to alternate remedy in such cases is not necessary pre-condition for maintaining a Constitutional petition.
3. It is correct that on pure jurisdictional question this Court had been directly entertaining petitions irrespectively of the availability of alternate remedy. However, this principle is not attracted in this case. Firstly, because the petitioner did not object to the jurisdiction of the Family Court as is clear from the written statement and the issues to which the parties .Went on trial. The jurisdictional question is an afterthought and has been raised for the first time in this Court. Even otherwise the points being urged against the validity of the decree could have been easily and competently canvassed in appeal also. In the circumstances, this petition can be dismissed on the ground that the same is not maintainable.
4. However, since the case was admitted about two years ago without objection from the Court at the time of admission and further the parties have addressed arguments on merits, I am not minded to dismiss the petition on the above said ground and I hereby proceed to adjudicate the other questions pertaining to the merits of-the controversy.
5. The main thrust of the arguments of Mr. Khan Muhammad Bajwa, Advocate, learned counsel for the petitioner is that keeping in view the averments made in the plaint, the suit was not triable by the Family Court inasmuch as although the suit was couched in language showing that it was for jactitation of marriage but in fact it was not so and was directed against the order of the Chairman Arbitration Council holding the 'Talaq' to be ineffective. According to the learned counsel, it is only the Civil Court who could declare the order of the Chairman Arbitration Council to be illegal and the Family Court had no such jurisdiction. In the same line it is argued that the respondent should not have accepted the order of the Civil Court rejecting its earlier plaint and ought to have questioned it in accordance with law. On the other hand Mr. H.M. Naqvi, Advocate appearing for respondent No,1-plaintiff has refuted the arguments and has contended that merley because a declaration has been sought regarding invalidity of the certificate issued by the Chairman Arbitration Council, the character of the suit is not changed and it will remain a suit for jactitation of marriage and, therefore, triable by the Family Court. It is also urged that since the jurisdiction of the Family Court has not been challenged, this Court should refrain from adjudicating this question.
6. It is well-settled principle that the Court should keep in mind the substance of the controversy, irrespective of the language and the words in which the assertions have been made. A bare reading of the plaint filed by respondent-husband shows that the plaintiff was seeking to silence the petitioner from claiming herself to be the wife of the plaintiff-respondent No, 1 . In order to obtain the relief, the plaintiff-respondent No,1 had to plead and show that the divorce pronounced by him was effective and certificate to the contrary issued by the other defendant was illegal. The precise nature of the suit for jactitation of marriage has been described in Tajoo v. Sattaran PLD 1973 Lah. 381 followed in another judgment of the same learned Bench, reported as Mst. Amina Begum v. Ghulam Nabi and 2 others PLD 1974 Lah.
78. While in another case reported as Nazar Qasim v. Mst. Shaista Parveen 1979 CLC 462, it has been held that merely because a declaration that 'Nikahnama' is forged is also sought, will not change the character of the suit and make it anything other than a suit for jactitation of marriage.
7. The reliance of Mr. Bajwa on Mirza Qamar Raza v. Mst. Tahira Begum and others PLD 1988 Kar. 169 to the effect that any thing done by the Chairman Arbitration Council under section 7 of the Muslim Family Laws Ordinance, 1961, is binding on the Family Court, is not correct. The judgment does not lay down the above law and even if it so does, I would respectfully disagree with the same. By providing that the suits for jactitation of marriage will be exclusively tried by the Family Court, the Legislature has conferred, jurisdiction on the said Court to also examine the validity of the marriage one way or the other. The Chairman cannot claim immunity to his action particularly in cases like the present ones where it is admitted that the Chairman had no power to issue a certificate either rejecting the divorce or holding the same to be ineffective. It is equally true that the order of the Chairman could have been called in question either in accordance with the procedure laid down in the Muslim Family Laws Ordinance, 1961, or the rules made thereunder or in the Constitutional jurisdiction of this Court but, as noted, that is not the only way of examining the validity of the order.
The Family Court being possessed of exclusive jurisdiction to determine the validity of the marriage had the power to also examine the validity of the act or omission of the Chairman. As held in Nazar Qasim's case, declaration regarding the forgery of 'Nikahnana' does not change the character of the suit. 'Nikahnamas' are prepared under the Muslim Family Laws Ordinance, 1961, and rules made thereunder and if the Family Court can hold the 'Nikahnama' to be forged it can also hold that the certificate issued by the Chairman under section 7 of the Ordinance is illegal and void.
8. Mr. Khan Muhammad Bajwa, Advocate, has pleaded that the narrow interpretation of the expression 'jactitation of marriage' as laid down in PLD 1988 Karachi 169 is the correct view and should be followed. In deciding that case the learned Judge has restricted the scope of 'jactitation of marriage' to cases of false claims and no marriage and has excluded other doubts and eclipses on the validity of marriage, arising after the marriage has taken place. With respect, the view is too narrow and there is no compelling logic to restrict the action of jactitation to cases of nonexistence of marriages or to false claims of marriages and to rule out the cases of 'subsistence of marriages' from the expression jactitation of marriages'. Further, the cited judgment does not seem to have been approved in 1994 SCMR 1740 and reliance of Mr. Bajwa on the same is otiose.
9. Apart from above, writ as prayed for will have to be denied to the petitioner on the ground that the impugned judgment has undone a wrong and cured a manifest illegality perpetrated by the certificate of Chairman to the effect that the divorce notice is ineffective. Mr. Bajwa, could not show that the Chairman has the power to decide the validity of Talaq/notice and also to issue certificate of its ineffectiveness.
10. For the reasons noted above, this petition has no merit and is hereby dismissed, leaving the parties to bear their own costs.