Petitioner has challenged the judgment, dated 2-6-1996 passed by Mian Muhammad Anwar, Judge Family Court, Chiniot whereby while dismissing suit for restitution of conjugal rights filed by the petitioner suit for jactitation of marriage filed by the respondent was decreed.
2. Facts in brief are that Mst. Zaibun Nisa respondent filed a suit for jactitation of marriage alleging therein that when she was six years old her mother was divorced by her father and she was sent to the house of her maternal--father where her maternal-uncle obtained her thumb-impressions on a blank paper when she was twelve years of age telling her to be an application for issuance of identity card; that after ten months of the said incident the maternal---uncle of the respondent told her that he would marry her with the petitioner/--defendant who is brother of the said uncle's were; that she came back to her father's house where a week prior to the filing of the suit for jactitation of marriage the forged Nikahnama was shown to her evidencing her Nikah with the petitioner whereupon she had to file a suit for jactitation of marriage before the Senior Civil Judge/Judge Family Court, Lahore and that the petitioner-defendant abducted the plaintiff- respondent and she was forced to withdraw the said suit. Her father got an abduction case registered against tire petitioner-defendant and others. By order of this Court she was allowed to go with her father. She filed suit for jactitation of marriage and the petitioner-defendant filed suit for restitution of conjugal rights wherein it was claimed that the respondent-plaintiff was her legally wedded were and that she be directed to join him. Both the suits were consolidated. In terms of the conflicting pleas following issues were framed:-- "(1) Whether the plaintiff is legally wedded were of the defendant? O.P.D.
(2) Whether Nikahnama in question is forged, fabricated, result of fraud, thus is illegal, void ineffective against the rights of the plaintiff? O. P. P.
(2-A) Whether the defendant is entitled to the decree for restitution of conjugal rights? O. P. P.
(3) Relief."
3. During trial the respondent-plaintiff produced four witnesses whereas petitioner-defendant produced only himself and a document Exh.D.1. Purported to be a statement made before the Judge, Family Court at Lahore wherein she allegedly stated that she was were of tire petitioner. The learned trial Court decided all the issues in favour of the respondent-plaintiff.
4. Learned counsel for the petitioner has challenged the judgment and decree on the ground that the petitioner was not allowed to cross-examine P.Ws. Nos.2, 3 and 4; that an application was made by the petitioner to summon the Secretary of the concerned Union Council to verify as to whether the petitioner's Nikah with the respondent was solemnized or not which was turned down without any justifiable reason; that another application was made for re--summoning the respondent-plaintiff's witnesses for the purpose of cross---examination but it was also dismissed; that the petitioner has been adversely affected on account of dismissal of this application; that the learned Trial Court has not considered Exh.D.I for reasons which are not sustainable in law; that the evidence recorded in the suit for jactitation of marriage could not be considered in the suit for restitution of conjugal rights which irregularity vitiated the proceedings.
5. Learned counsel for the respondent-plaintiff on the other hand has defended the impugned judgment by submitting that the statement of the respondent-plaintiff was recorded on 15-6-1995; that she was subjected to detailed cross-examination; that the statement of other witnesses were recorded on 25-9-1995 and that the opportunity was given to cross-examine the witnesses which he did not avail and a belated application was made with mala fide motive to prolong the proceedings. He lastly contended that the suit, for jactitation of marriage is a family suit and the Civil Procedure Code would not be applicable.
6. Heard. Record perused.
7. Admittedly, the respondent-plaintiff had filed suit for jactitation of marriage earlier on at Lahore. I have gone through the statement made by her before the learned Trial Court wherein she gave a detailed description of the manner in which she was treated like a chattel and without her knowledge or consent a Nikahnama was prepared. The moment she came to know about the said Nikahnama she filed suit for jactitation of marriage and it is not denied that it was during the pendency of the said suit that a case of her abduction was registered vide F.I.R. No. 198 of 1994, dated 30-4-1994 on the statement of her father. According to the respondent-plaintiff EO.D.1. Was got recorded by the petitioner when she had been abducted by him and his companions. Exh.D.1, therefore, cannot be a conclusive proof of her having owned the Nikah. On question of Nikah she herself is the best witness. Petitioner-defendant did not produce evidence in rebuttal although he took eight months to conclude his evidence. I have gone through the order of the learned Trial Court and find that when the statements of the witnesses were recorded petitioner was present and he was given opportunity to cross-examine them which opportunity he did not avail. This was on 25-9-1995. After several months i.e. 16-5-1996 he filed an application for re-summoning the witnesses as also the Secretary of the Union Council concerned to vouchsafe for the registration of the Nikahnama. These applications were rightly dismissed by the learned Trial Court as according to it the same were meant to prolong the proceedings. If the petitioner was genuine in his desire to cross-examine the witnesses who were already examined or to summon the Secretary Union Council he should have moved the application in time. Even otherwise, in the face of allegation that the Nikahnama was forged and that she did not consent to Nikah the examination of Secretary, Union Council was not relevant as he was not are eye-witness of the Nikah in question. Coming to the argument that the evidence recorded in suit for jactitation of marriage could not be real in suit for restitution of conjugal rights I am of the view that this argument is fallacious for two reasons, firstly, it is not denied that the suits were consolidated and, secondly, that the suit for jactitation of marriage is no longer a civil suit stricto senso as per the amendment made in the schedule to the Family Ordinance. Learned counsel for the petitioner in the alternative tried to argue that since the amendment in the schedule came after filing of the suit, the same has retrospective effect. The law is settled that any amendment made in the procedure has retrospective effect.
8. In the afore-referred circumstances I do not see any arbitrariness in the judgment and decree or jurisdictional defect to interfere in the extraordinary jurisdiction of this Court.
9. While parting with this judgment I note that the petitioner procured Nikahnama dated 1-3-1984 whereafter respondent-plaintiff had to file suit for jactitation of marriage. She was abducted and a case was registered against the petitioner and others. She was made to withdraw the suit, She had to file second suit after her recovery which led to the passage of the impugned judgment and decree, dated 2-6-1996 and even then petitioner was not satisfied and filed this Constitutional petition and dragged the matter. The respondent-plaintiff, who had to suffer the rigors of litigation, mental torture and agony from 1984 to 1998 has lost best part of her youth on account of petitioner-defendant's conduct which involved the respondent in litigation and she could not marry for all these years. In these circumstances I am persuaded to burden him with cost. Coming to the quantum of cost, I note that he is police constable and on my query revealed that he is owner of one/two acres of land. Keeping his financial position in mind I take a lenient view and burden him with a cost of Rs.10,000 (Rupees ten thousand only) which shall be paid to the respondent-plaintiff. The amount of cost shall be recoverable as arrears of Land Revenue.
10. This writ petition is dismissed in terms noted above.