' On 11-10-1994, the petitioner filed a suit for jactitation of Marriage. In the plaint she stated that she was married to Yasin on 21-11-1983 and bore three children to him who are alive and she is living with her husband along with her children; that the respondent No,2 fabricated two Nikah Namas on 20-2-1989 and 21-2-1989; she specifically stated in the plaint that she had not executed the said Nikah Namas and she did not affix her signatures or thumb-impression on the same; that on the basis of Nikah Nama, dated 21-2-1989 the respondent No,2 got a case registered against the petitioner, her husband and two other persons under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979; she also stated that a decree for Restitution of Conjugal Rights was also procured fraudulently on 8-11-1990 as also a suit for Dissolution of Marriage was got filed and then withdrawn in the like manner. In a nut shell her case was that she was not the wife of respondent No,2. In his written statement, the respondent No,2 positively asserted that the petitioner is his wife and is legally wedded to him. He further stated that the marriage was in exchange for marriage of his sister with the brother of the petitioner. The learned Judge Family Court framed issues. Relevant being issue No,2 which is being reproduced here:--- ' Whether the plaintiff is legally wedded wife of the defendant? OPD ' Evidence of the parties was recorded. The suit of the petitioner was decreed by the learned Judge Family Court vide a judgment and decree, dated 16-5-1997 who granted her a decree for Jactitation of Marriage against the respondent No,2. Feeling aggrieved, the respondent No,2 filed an appeal which was heard by a learned Additional District Judge, Cheechawatni, District Sahiwal, who allowed the same and dismissed the suit of the petitioner vide a judgment and decree, dated 2-9-1997.
2. The writ petition is pending since 1997. Vide an order, dated 11-5-1999 my learned brother Dr. Munir Ahmad Mughal, J proceeded to adjourn the case sine die till the decision of Criminal Appeal No, 17-L of 1995. The case was put-up before me on 18-11-1999 when I found a request in earnest from the Registrar of the Federal Shariat Court, Lahore that Criminal Appeal No,17-L/95 titled "Mst.
Kausar Perveen etc. v. The State" is pending before the learned Federal Shariat Court and is so pending in wait for the decision of the present writ petition. Since by now it is settled that in such like matters, it is the proceedings in the appeal before the learned Federal Shariat Court which arc stayed in waiting for decision in family matter, I proceeded to hear the writ petition. On the said date, respondent No,2 was present in person who sought time to engage a counsel and I adjourned the case to 22-11-1999. On the said date, the petitioner appeared in person and stated that her counsel is busy contesting some election. I adjourned the case to be heard today and to be listed at number one. I have heard the petitioner in person and the learned counsel for the respondent No,2.
3. I have gone through the copies of the records appended with the writ petition. A bare perusal of the impugned judgment of the respondent No, 1 would show that he acted under the impression that petitioner had approached the Family Court for a declaration that she is the wife of Yasin and not for a Jactitation that she is not the wife of Hanif respondent No,2. The tenure of the impugned judgment shows that the respondent No,1 was under the impression that the onus to prove that she is not the legally wedded wife of Hanif was upon the petitioner. This of course is not the position on record. On the other hand, as would be apparent from the wordings and framing of issue No,2, reproduced by me above, the onus to prove lawful - wedding between the petitioner and respondent No,2 was upon the latter. It is true that the respondent No,2 produced a copy of Nikahnama Exh. D-1 on record but I am afraid the said document can be of no use to the respondent No,2 in the matter of discharging the heavy onus which lay upon him to prove issue No,2 for the simple reason that the petitioner had denied the execution of the said document by herself. It is also true that Nikahnama being a document registered in accordance with provisions of the Muslim Family Laws Ordinance, 1961 and the Rules framed thereunder is a public document but to my mind in view of the denial which constitutes a dispute as to the execution of the Nikahnama, the same cannot be treated as a public document on the analogy of Article 85(5) of the Qanun-e-Shahadat Order, 1984, according to which a registered document will be a public document provided its execution is not disputed. This being the position the learned trial Court very rightly observed that the respondent No,2 had failed to prove the execution of Nikahnama Exh.D-1 by the petitioner. It is a matter of record that no witness of the Nikah, Nikah Khawan or the Nikah Registrar were produced. In this view of the matter it was the case of oath against oath and since the onus to prove issue No,2 was upon the respondent No,2, he was bound to fail and the learned trial Court had acted within the bounds of Law and his jurisdiction while finding the issue No,2 against the respondent No,2.
4. The respondent No,2 having failed to prove issue No,2, the petitioner was very much entitled to a decree for Jactitation of Marriage which is in a way, a negative declaration that she is not the wife of the respondent No,2. To my mind, the pains taken by the learned Additional District Judge to hold that Nikah between the petitioner and her self-claimed husband Yasin is not proved, were absolutely unnecessary. The learned Federal Shariat Court has observed on several occasions that for purposes of the cases lying within its domain, a declaration by a man and woman that they are married and an husband and wife, is enough to support the plea of a valid marriage. In the present case, the petitioner did and does proclaim that she is the wife of Yasin and there is no denial on the latter's part on the record of the said fact. It is also a matter of record that she has born children to Yasin as a result of what she claims to be a lawful marriage between herself and Yasin. The learned Additional District Judge, however, appears to have failed to take notice of all these significant circumstances and also the legal position stated above. I may further add that the petitioner entered in the witness-box as P.W.1 but she was not even confronted with the alleged Nikahnama Exh. D-1 while in the witness-box. The learned Additional District Judge, therefore, clearly misdirected himself while reversing the judgment and decree of the learned Judge Family Court and in the process misread the evidence on record in oblivion of the fact that onus to prove issue No,2 was upon the respondent No,2. The impugned judgment, therefore, is liable to be set-aside in exercise of Constitutional jurisdiction. This writ petition is accordingly allowed. The judgment and decree, dated 2-9-1997 of respondent No,1 is declared to be without lawful authority and as such is set aside. The result would be that the judgment and decree, dated 16-5-1997 of learned Judge Family Court, Cheechawatni decreeing suit of the petitioner for Jactitation of Marriage shall stand restored and intact. Parties are left to bear their own costs.