Through this single judgment Civil Revision No. 1515 of 2002 "Rafaqat Masih v. Maqsood Bibi" and Civil Revision No.1516 of 2002 "Riasat Masih v. Razia Bibi" are decided as the subject-matters of both these civil revisions are same and are decided even through same date judgment by the learned trial Court as well as the learned Appellate Court.
2. Precise grounds in the instant civil revisions are that the respondents filed petitions under section 10 of the Divorce Act, 1869 for dissolution of marriage before the learned Civil Judge, Samundri.
These petitions for divorce were contested by the petitioners by filing written statement. Issues were formulated, evidence was produced and the learned Civil Judge vide judgment and decree dated 9-9-2000 dismissed the suits filed by the respondents. Appeals were filed against the said judgments and decrees the same were accepted and the cases were remanded. Some more evidence was recorded and the cases were again dismissed vide judgments and decrees dated 29-1-2002 by the learned Civil Judge, Samundri. The respondents again preferred appeals respectively for setting aside the same. The appeals were accepted and the learned Appellate Court by invoking the provision of section 19 dissolved the marriage being null and void and without consent. Against these judgments the instant civil revisions are filed. Petitioners in both these civil revisions are real brothers and the respondents in both civil revisions are real sisters.
3. Arguments advanced by learned counsel for the petitioners are that the judgments and decrees passed by the learned Appellate. Court are entirely without lawful authority and jurisdiction on the point that proceedings under section 10 of the Divorce Act, 1869 and proceedings under section 19 of the Christian Marriages Act are independent proceedings. The respondents themselves filed petitions under section 10 of the Christian Marriages Act and produced marriage documents as Exh. A./I and in this way the learned Appellate Court could not proceed on to declare the marriage between the parties as null and void under section 19 of the Christian Marriages Act and the Divorce Act, 1869. He further argued that C.P.C. Is applicable to the proceedings and if the learned Appellate Court was convinced that proceedings before him was declaration for nullity of marriages then he had to frame issues on the factum of marriages that the same were nullity. He could never declare the marriages nullity where the suits themselves were filed under section 10 of the Divorce Act, 1869.
4. Learned counsel for the respondents submits that the learned Appellate Court has not committed any gross illegality while pronouncing the marriages as nullity as the statement of facts narrated in the petitions/suits itself disclosed that the marriages were solemnized in violation of the Christian Marriages Act at the behest of one Peer Zulfiqar and through coercion and undue influence and were solemnized at 12 midnight while the marriages time in the Churches is from 6 a.m. To 7 p.m. And then a month before there are certain Pukkar whether the marriage is solemnized within the provisions of Christian Marriages Act or in violation of the Christian Marriages Act. After being satisfied that these are solemn marriages between the parties, spouses are wedded. He further argued that although the original petitions were filed under section 10 of the Christian Marriages Act but the narration of facts, evidence on record totally showed that marriages were result of undue influence and coercion and connivance of one Peer Zulfiqar and no valid consent was taken from the respondents who were minor at that time. The marriages up to this time are not consummated as no Rukhsti has taken place, therefore, the learned Appellate Court has rightly declared the marriages being solemnized without consent of the respondents and under influence by one Peer Zulfiqar being null and void. He relied on Ala ud Din v. Mst.
Farkhanda Akhtar (PLD 1953 Lah. 131) where it is held that inconsistent allegations of fact---not permitted---plaintiff woman denying factum of marriage and in the alternative pleading that whether defendant was married to her or not, being minor, she had repudiated it----plea---held, not inconsistent. It was further held that our law or procedure does place limitations on the power of parties to state facts, the result of which is that though alternative pleas can be taken, such pleas cannot include allegations of facts which would destroy each other. A pleading cannot contain inconsistent allegations of fact. A criterion for finding whether allegations are inconsistent or not would be the answer to the question whether they can or cannot be verified at the same time. If two allegations be such that they cannot both be verified by one and the same be defective. If, however, the allegations be such as can properly be verified at the same time, the pleading cannot be said to suffer from inconsistency. Party to state only the facts and it is for the Court to apply the law and work out the results, though as a matter of convenience and on account of lack of regard for rules of pleading, such legal effects are generally made parts of pleadings. He further relied on Mst. Baigan v. Abdul Hakeem and another 1982 SCM R 673 where it is held that mentioning of wrong provision in pleading----effect of---held mentioning of wrong provision of law in pleading not normally to render same invalid. He also relied on Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others (1993 SCM R 2018): Order VI, rule 1 and Order XIV, rule 1--non-framing of specific issue when inconsequential pleadings and issues as originally framed showed that parties were fully aware what was the subject-matter of controversy and what evidence was to be led by each side. Non-framing of specific issue in such circumstances was thus, inconsequential where issues were not framed but allegations made in the plaint were challenged in the written statement and the Court had allowed evidence to be led, then decision rendered without framing of issues was not illegal.
5. I have heard the learned counsel for the parties and perused the record and law on the subject- matter. It is settled proposition of law that the marriage under the Christian marriages Act is a sacrament unlike Muslim Marriages, which are purely civil contract between the spouses. Section 4 of the Christian Marriages Act, 1872 discloses that every marriage between persons one or both of whom is or are a Christian or Christians, shall be solemnized in accordance with the provisions of the following section of the Christian Marriages Act, 1872. Section 5 describes the provision of persons by whom marriages may be solemnized, section 6 is for grant and revocation of licences to solemnized marriage. Under section 12 of the Christian Marriages Act, 1872 a notice of intended marriages is given in writing according to the form contained in the First Schedule describing the name, surname and the profession or condition of each of the persons intending marriage, the dwelling place of each of them, the time during which each has dwelt there and the Church or private dwelling in which the marriage is to be solemnized. Section 13 is the publication of notice and section 22 is the issue of certificate in case of minority, section 23 is issue of certificate to native Christians. In the instant case the marriage certificates are Exh.A/I. Section 10 of the Christians Divorce Act, 1869 is reproduced below:-- When were may file petition for dissolution:---Any were may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman; Or has been guilty of incestutious adultery, Or of bigamy with adultery, Or of marriage with another woman with adultery, Or of rape, sodomy or bestatlity, Or of adultery coupled with such cruelty as without adultery would have entitled her to divorce a mensa et toros, Or of adultery coupled with desertion, without reasonable excuse for two years or upwards."
Section 13 is the dismissal of petition and section 14 is the power of Court to pronounce decree for dissolving marriage. Section 18 prescribes the petition for decree of nullity of marriage which shows that any husband or were may present a petition to the Court of Civil Judge, praying that his or her marriage may be declared null and void. Section 19 prescribes the grounds of decrees as reproduced below:-- Grounds of decrees.---Such decree may be made on any of the following grounds:--
(i) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit;
(ii) that the parties are within the prohibited decrees of consanguinity (whether natural or legal) or affinity; (i.e) that either party was a lunatic or idiot at the time of the marriage;
(iv) that the former husband or, were of either party was living at the time of the marriage and the marriage with such former husband or were was then in force.
Nothing in this section shall affect the jurisdiction, of the Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud."
6. Undoubtedly the suits were filed under section 10 of the Christian Divorce Act, 1869 before the learned Civil Judge, Samundri but the grounds envisaged in the petitions showed that:-- Besides these grounds in paragraphs 4 and 5 ground of adultery was also taken and that also enmity existing between the parties. These civil petitions were vehemently opposed by the petitioners/defendants and preliminary objections were taken that suits are not maintainace under section 10 of the Christian Divorce Act, 1869 and also on other grounds. Following issues were formulated:--
(i) Whether the petitioner is entitled to a decree of divorce. If so, on what grounds? OPA
(ii) Whether the petition is not maintainable under section 10 of Christian Divorce Act? OPR (i.e) Order.
Parties led their evidence. A.W.1 Maqsood Bibi appeared as her own witness and stated in her examination-in-chief that her marriage was solemnized 4 years before and at that time she was minor and the Nikah was solemnized by Per Zulfiqar against her consent.
She stated in her cross-examination that she does not know whether she is Protestant or Catholic.
However, she is Christian and Peer Zulfiqar is Peer. She denied all the suggestions. A.W.2 Ilyas Masih supported her version that Nikah was solemnized 4 years before but Rukhsati did not take place and Peer Zulfiqar through coercion got this Nikah as the Peer was greedy. In his cross-examination he stated that defendant was working under Peer Zulfiqar and under this greed he got this Nikah solemnized. He further stated in his cross-examination that defendant had relations with other women and he is physically incapacitated and they are Christians under the Church of Protestant.
Rafaqat Masih D.W.1 appeared and stated that his marriage was solemnized with the plaintiff/respondent and she has good relations with him and he wants restoration of conjugal rights. In his cross-examination he stated that at the time of marriage he was 20 years of age and plaintiff was also major. She stayed one day and she went in the evening.
Maqsood Bibi again appeared in rebuttal and stated that the petitioner/defendant had relationship with the women of selling bangles and he commits adultery with them. Both the plaintiffs/respondents appeared before this Court and stated that they will rather prefer to die than to go with the petitioners. Similarly in suit for dissolution of marriage tiled by Mst. Razia Bibi against Riasat Masih she appeared as A.W.1 and stated that her marriage was solemnized during minority and under undue influence exerted by Peer Zulfiqar and is supported by A.W.2 Ilyas Masih and A.W.3 Riaz Masih and they produced the marriage certificate Exh.A./1.
7. As far as the arguments advanced by learned counsel for the petitioner is concerned that the learned Appellate Court was bound to frame an issue regarding the nullity of marriage and then remand the case to the learned trial Court and get it decided afresh. Undoubtedly from the perusal of statement and facts narrated in the plaints show that the same were for declaration of nullity of marriages but filed under a wrong section. Even the evidence produced by the parties and also admitted by the parties show that marriages were solemnized by one Peer, who had great influence over the parties. It was incumbent upon the learned trial Court to formulate an issue on this point as the pleadings of the parties disclosed that they were alleging that they were given in marriages without the consent of the plaintiffs. But the learned trial Court dismissed .The suits under section 10 of the Christian Divorce Act. On appeal the learned Appellate Court passed a decree under section 19 of the Christian Divorce Act. The question whether the learned Appellate Court without framing an issue could proceed under section 19 of the Christian Divorce Act, the only exception to this objection is Order 41, rule 33, C.P.C. Which is reproduced below:-- Power of Court of appeal.---The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, alongwith such respondents or parties may not have filed any appeal or objection: Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. "
Object of this rule is to empower the Court to complete justice and to readjust the rights of other parties. Ordinarily an Appellate Court will not take notice of events that have taken place after the judgment of the lower Court but in order to shorten litigation and to attain the ends of justice the Appellate Court can take note of events subsequent for the passage of the impugned decree or order PLD 1978 SC 220 and the learned. Appellate Court can pass a decree or order which ought to have been passed PLD 1991 SC 218, 1991 SCM R 515, PLD 1976 SC 634 and 1985 CLC 1527 and under circumstances where issues were not framed but allegations made in the plaint challenged in the written statement and Court was allowed evidence to be led then decision rendered without framing of issues was not illegal 1993 SCM R 208.
8. The parties are litigating since 1995. According to the statement of parties they are going through an agonizing and painful situation, where a woman even appearing before High Court refuses to go with her husband. As no religion allows a hateful union which is not based on true consent of the parties. Specially in Christian Marriages Act, where marriage is a sacrament and at the time of marriage both the parties vow to stand together in sorrow and happiness etc. Till death departs them. In evidence it is established beyond doubt that the vital role in the marriages between two spouses who were Christian was performed by one peer Zulfiqar under whose influence the parties were wedded. This factum is admitted by the petitioners/respondents in their evidence before the learned trial Court. It was incumbent upon the learned Courts below to give an alternative decree under the pleas taken on the statement of facts in suit and then the evidence produced by the parties to prove those facts, therefore, merely saying that inconsistent plea was taken and the learned Appellate Court has given decision as envisaged in the Ala ud Din v. Mst.
Farkhanda Akhtar (PLD 1953 Lah. 131) is not weighty.
9. Keeping in view all the above circumstances and facts and law on the subject-matter, no interference is called in the judgment passed by the learned Appellate Court hence, the instant civil revisions are dismissed. No order as to costs.