' By this single judgment I propose to decide Writ Petitions Nos.8390, 8391 and 8392 of 1994 as common question of law and fact arise therein.
2. Brief facts in the instant petitions are that three suits titiled as Mst. Faiz Batool v. Fida Hussain (suit for dissolution of marriage), Mst. Faiz Batool v. Fida Hussain (suit for recovery of dower money) and Mst. Faiz Batool v. Fida Hussain (suit for recovery of maintenance) filed by the petitioner were pending adjudication before the learned Judge, Family Court, Ferozewala. The respondent also filed a suit for jactitation of marriage which was pending adjudication before the Judge, Family Court, Lahore. The suit for jactitation of marriage filed by the respondent was transferred to the Court of learned Judge, Family Court, Ferozewala and was consolidated with the suits filed by Mst.
Faiz Batool on 7-11-1989 and consolidated issues were framed on the same day and the proceedings were ordered to take place with the suit for jactitation of marriage. Petitioner Mst. Faiz Batool completed her evidence and the respondent did not complete the eviJence when he filed an application under Order VII, Rule 11 read with section 151, C.P.C. For rejection of the plaint on 'the basis that all the above matters were consolidated and the petitioner had produced her evidence and had admitted in the cross-examination in suit titled as Mst. Paiz Batool v. Fida Hussain (suit for dissolution of marriage) that Mst. Mumtaz Begum wife of Fida Hussain is the real maternal aunt and she fell within the prohibited degree and no marriage can take place between her and Fida Hussain and, therefore, she has no cause of action and as such all the suits are liable to be dismissed for want of cause of action.
3. This application was contested by the petitioner. She averred in the preliminary objections that every suit filed by her is independent and the proceedings in all the suits are also pending and in suits for maintenance and Haq-ul-Mahar she has to produce separate evidence. The application under Order VII, rule 11, C.P.C. Is given considering all the suits as consolidated and is liable to be rejected and that an application under section 476, Cr.P.C. Is also pending adjudication on the same grounds, and therefore, this application merits dismissal.
4. Learned Judge, Family Court, Ferozewala instead of recording the evidence to be led by the parties vide order dated 5-7-1992 admitted that only two suits i,e, suit for dissolution of marriage and suit for jactitation of marriage were consolidated whereas the other suits for recovery of dower money and maintenance allowance are pending separately which are also to be disposed of separately and it is admitted fact between the parties that Mst. Faiz Batool is the daughter of Mst.
Ashraf Begum, who is real sister of Mst. Mumtaz Begum, existing wife of Fida Hussain respondent and he has not divorced her (Mst. Mumtaz Begum) and according to Muhammadan Law the marriage with real daughter of real sister-in-law falls within the prohibitory degree and it is an unlawful conjunction and a man has been prohibited from marrying with aunt and niece at the same time. The contention of the respondent's counsel was that although this marriage falls within the prohibitory degree, even then it was not a void marriage, and it can be regularised so the marriage with the petitioner falls within the prohibitory degree and Mst. Faiz Rasool plaintiff has no cause of action to file the suit for dissolution of marriage which is hereby dismissed. The suit of the respondent for jactitation of marriage was decreed.
5. It is important to note that the suit for jactitation of marriage was filed by Fida Hussain respondent who averred in his plaint that the alleged Nikah was forged as the marriage, comes within the prohibitory degree and no valid Nikah can be solemnized with and and in fact this Nikah was manoeuvred by her relatives such as her sister namely, Mst. Munaza Begum and her brother- in-law, namely, Syed Nadir Ali Shah in connivance with each other and this Nikah was a forged Nikah registered on 17-3-1987 with Union Council Kot Mehmood, Tehsil Ferozewala, District Sheikhupura with plaintiff's address shown as village Mimberanwala which actually is Nadir's village. The moment this Nikah came to light it was repudiated for the reason that the alleged Nikahnama was even otherwise illegal, and void as the same falls under prohibited degree. The respondent/plaintiff had stuck a transaction with Ham Din son of Mehr Din to purchase house No,59-B, Katcha Ferozepur Road, Lahore when the petitioner/defendant in connivance with her above relatives availed for the opportunity of revealing the 'drama' of alleged Nikah of the respondent/plaintiff with the petitioner/defendant and under pressure, duress, coercion and threats for the implication of the respondent/plaintiff in Hudood case, he was made to entrust the affairs of completion of said sale-deed to said Nadir Shah who in active connivance with the petitioner/defendant manoeuvred to get the said house transferred in the name of the petitioner/defendant instead of the respondent/plaintiff and as such the petitioner succeeded in her fraud of showing alleged Nikah with the respondent/plaintiff and when the respondent/plaintiff asked the petitioner/defendant to desist from claiming herself as wife of the respondent/plaintiff the suit for jactitation of marriage was filed.
6. The above suit was contested by the petitioner/defendant by filing a written statement that the Nikah was solemnized after taking permission under section 6(1) of the Muslim Family Laws Ordinance, 1961 from the first wife from the Chairman, Union Council Kot Mahmood, Tehsil Ferozewalag District Sheikhupura and the present suit was filed to frustrate the suit for dissolution of marriage, maintenance and Hag Mahar.
7. Learned counsel for the petitioner has argued that the relevant provisions of Order VII, Rule 11, C.P.C. Are not applicable to the family suits.
8. Learned counsel for the respondent has submitted that in fact all fictitious documents were produced and for this reason the proceedings under section 476, Cr.P.C. Were lodged and that no appeal was filed against the decision of the suit for jactitation of marriage. He has further submitted that since the marriage was admittedly an irregular marriage, therefore, no cause of action arose to the petitioner and the suits were rightly rejected under Order VII Rule 11, C.P.C. He relied on Mian Muhammad etc. v. Additional Commissioner (Revenue/Settlement Commissioner, Rawalpindi etc. 1991 SCM R 520, Khadim Hussain v. Board of Revenue etc. 1973 SCM R 127 and Khushi Muhammad v. Allah Bakhsh etc. 1994 CLC 1180. Learned counsel for the petitioner argued that in the impugned judgment the suit for jactitation of marriage is not mentioned. It is submitted that under the Family Courts Act the appeal is always filed against a decree. Since on merits no case was decided, therefore, the appeal was filed against the decision passed by the learned Judge, Family Court and since it was a composite judgment, therefore, it also includes the suit for jactitation of marriage as well.
9. I have heard learned counsel for the parties and have carefully perused the record. Each of the aforesaid cases filed by the parties was independent and needed examination and careful scrutiny of evidence. It is surprising that on the record the petitioner has completed her evidence and the respondent-husband has also produced some evidence although the statement of his completion of evidence is not available on record. Application filed under Order VII, Rule 11, C.P.C.
Gave the title of the following suits:--
(1) Mst. Faiz Batool v. Fida Hussain (Suit for dissolution of marriage).
(2) Mst. Faiz Batool v. Fida Hussain (Suit for recovery of dower money).
(3) Mst. Faiz Batool v. Fida Hussain (Suit for recovery of maintenance).
' It does not include the suit for jactitation of marriage. However, by virtue of one sentence the decree of marriage was granted by the learned Judge, Family Court and was affirmed by the appellate Court who has discussed the evidence as well. This is a composite judgment and consolidated issues were framed on the pleadings of the parties and it cannot be said that the petitioner has given up her right by not filing an appeal against the decision of the suit for jactitation of marriage being decreed against her. Learned Appellate Court was bound to see whether the provisions of Order VII, Rule 11, C.P.C. Did apply to the Family Court? Or whether the Family Court had to decide all these matters along with the factum of marriage being regular or irregular after careful scrutiny of the evidence? Learned Appellate Court did not apply its mind to these facts of the case; they were obsessed with the impression that the marriage was solemnised within the prohibitory degree and, therefore, was irregular. This is not the object of law and neither such a judgment can be termed as judicial judgment.
10. The Family Courts are Special Tribunals governed by special law which is called Muslim Family Laws Ordinance, 1961 and West Pakistan Family Courts Act, 1964, through its own procedure. Since the matter relates to the marital spouses in order to make settlement of marriage easier the Legislature has intentionally omitted certain strict provisions of the Civil Procedure Code in respect of the plaints under Order VII, Rule 11, C.P.C. And also that of evidence. Section 17 of the West Pakistan Family Courts Act, 1964 being relevant for the sake of convenience is reproduced below:- "17. PROVISIONS OF EVIDENCE ACT AND CODE OF CIVIL PROCEDURE NOT TO APPLY.
(1) Save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872, and the Code of Civil Procedure, 1908 (except sections 10 and 11) shall not apply to proceedings before any Family Court.
(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts."
11. The provisions of C.P.C. And the Evidence Act, 1872 are intentionally excluded by the Legislature for the sake of expeditious disposal of the family cases. In the present case evidence was recorded by the learned Judge, Family Court and specially he had to decide in the suit for jactitation of marriage whether Nikah was alleged to be fabricated as averred by the husband of the petitioner and it needed an independent inquiry into the facts through appraisal of evidence and also decide whether the marriage was regular or irregular. If it was proved that the marriage was irregular then the consequences of the irregular marriage could be seen under the provisions of Muhammadan Law. The Appellate Court failed to apply its mind that the learned Judge, Family Court was bound to give issue wise findings and the learned Appellate Court had to examine the finding of fact on the consolidated issues. Learned Judge, Family Court erroneously applied the provisions of Order VII, Rule 11, C.P.C. To the family suits which are not available under the law and the learned Appellate Court without appreciating the question of law has affirmed the judgment of the learned Judge, Family Court, therefore, both the judgments suffer from infirmity of law and are hereby set aside, being without lawful authority, jurisdiction and justification. All the cases are remanded back to the trial Court to be decided afresh on merits after giving 11:11 opportunity to the parties to produce their evidence.
12. There shall be no order as to costs.