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Case Judgement

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1991 C L C 1787
[Lahore]
Before Mian Allah Nawaz, J
Syed MUHAMMAD IQBAL HUSSAIN SHAHPetitioner
versus
Mst. FARHAT JEHAN and 2 othersRespondents
Writ Petition No.275/BWP of 1990, decided on 25th March, 1991.
(a) West Pakistan Family Courts Act (XXXV of 1964)
Ss. 5 & 23Dispute relating to false marriageJurisdictionDispute relating to false marriage lay
wholly within the jurisdiction of Family CourtSection 23, West Pakistan Family Courts Act, 1964, was not
a bar to such suit.
Mst. Amina Begum v. Ghulam Nabi and 2 others P L D 1974 Lah. 78; Nazar Qasim v. Mst. Shaista Parveen
1979 C L C 462 and Malla v. Mst. Jawai etc. 1981 C L C 1097 rel.
(b) West Pakistan Family Courts Act (XXXV of 1964)
S. 5Constitution of Pakistan (1973), Art. 199Instrument of Nikah executed under duress and
coercionJurisdictionFamily Court was competent to examine as to whether instrument of Nikah having
been executed in favour of petitioner was under duress or coercionFamily Court as well as Appellate
Court having rendered findings on basis of evidence, conclusion of fact was not open to exception in
Constitutional jurisdiction unless and until, same was shown to have been vitiated by misreading or
nonreading of evidence or in excess of authorityNo such circumstances having been pointed out,
interference was not warranted in exercise of Constitutional jurisdiction.
Sardar Najamuddin Khan for Petitioner.
M. Uzair Chughtai for Respondents.
Date of hearing: 25th March, 1991.
JUDGMENT
On 711988 Mst. Farhat Jehan instituted a suit for jactitation of marriage in the Court of Senior Civil Judge,
Bahawalpur with the powers of Judge Family Court. It was alleged therein that she was abducted by Syed
Iqbal Hussain Shah alongwith his accomplices, that she was recovered by the Police on 2791987; that when
she was with Syed Iqbal Hussain Shah, she was coerced to affix her thumbimpression on certain documents
which were changed into Nikahnama. It was further alleged that the aforesaid instrument of Nikah was
prepared under duress, was without any lawful authority and that the respondents be restrained from calling
her/his wife.

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2. The suit was resisted. It was pleaded in written statement that the plaintiff was sui juris; that she had
contracted nikah with her own free will; that she had made statement before the Magistrate as well as before
the High Court without any pressure and coercion and contracted marriage of her own accord. Iqbal Hussain
Shah (herein respondent) also filed a suit for the restitution of conjugal rights in the Court of Family Judge,
Vehari. The aforesaid suit was transferred to the Court of Family Judge, Bahawalpur. Both the suits were
consolidated and on the pleadings of the parties, following issues were framed:-(1) Whether the plaintiff is entitled to a decree for jactitation of marriage?
(2) Whether the thumbimpression and signatures of the plaintiff were obtained by coercion on the
Nikahnama?
(3) Whether the consent of the plaintiff on Nikahnama was not free?
(4) Whether the plaintiff was abducted by the defendant and his companions?
(5) Whether the defendant is entitled to get a decree for restitution of conjugal rights?
(6) Relief.
3. The parties led their evidence. Upon the consideration of the evidence, adduced by the parties the learned
Judge Family Court, Bahawalpur by judgment and decree dated 461989 decreed the suit for the jactitation
of marriage and also dismissed the suit for the restitution of conjugal rights by coming to the conclusion that
the Nikahnama was executed under coercion and duress.
4. Feeling aggrieved by this judgment, Syed Iqbal Hussain Shah filed appeal which was dismissed by the
learned Additional District Judge, Bahawalpur by means of judgment and decree dated 2211991.
5. Learned counsel appearing on behalf of the petitioner raised following points:
(i) It was contended that the Family Court under Section 5 of the West Pakistan Family Courts Act (XXXV
of 1964) was not competent to decide a suit pertaining to the plea of declaration to the effect that Nikahnama
registered under the provisions of Muslim Family Laws Ordinance (VIII of 1961) was under duress and
coercion. The Family Court was only competent to decide the suit for jactitation of marriage. In the present
case the suit was filed for seeking declaration regarding instrument of Nikah duly registered under the
provisions of Muslim Family Laws Ordinance, 1961. Reliance was placed on Nazar Oasim v. Mst. Shaista
Parveen (1979 C L C 462) and Malla v. Mst. Jawai etc. (1981 C L C 1097).
(ii) It was next contended that under section 23 of the West Pakistan Family Courts Act, 1964, the validity of
marriages registered under the Muslim Family Laws Ordinance, 1961 cannot be questioned before the Family
Court. No other point was urged.
6. On the other hand, learned counsel appearing on behalf of the respondent supported the impugned decision
on merits. It was contended that both the Courts below have recorded the findings on the relevant issues after
taking into consideration the necessary evidence.

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7. I have heard the arguments of the learned counsel for the parties at length and after carefully taking into
consideration the points made by the petitioner, I am clear in my mind that the contentions of the petitioner
are without any force. It is apparent from the statement of Mst. Farhat Jehan that she was abducted by the use
of force; that her thumb impression was got affixed by force. She was subjected to a lengthy
crossexamination and she firmly denied having consented to the nikah with the present petitioner. Iqbal
Hussain Shah admitted in crossexamination that the case under the provisions of Offence of Zina
(Enforcement of Hudood) Ordinance (VII of 1979) was pending adjudication against him; that he was on
bail. In the context of aforesaid circumstances both the Courts below came to the conclusion that the
Nikahnama was obtained under duress. The only point calling for determination is "whether the Judge Family
Court was competent to decide the suit". This point came up for consideration in Mst. Amina Begum v.
Ghulam Nabi and 2 others (P L D 1974 Lahore 78). After taking into consideration the dictionary meaning of
words "Jactitation of marriage" and the relevant provisions of the West Pakistan Family Courts Act, his
Lordship Mr. Justice Aftab Hussain as he then was, laid down:
"The object of the Act is to give exclusive jurisdiction to the Family Courts in all matters relating to
marriage. A suit for affirmative declaration about existence or subsistence of marriage is as much a suit
relating to marriage as a suit for the negative declaration. The wider meaning of the expression `Jactitation of
marriage' will, therefore, advance the object of the Act. On principle also there appears to be no difference
between a case where the party aggrieved against the false claim comes to the Court first or the other party
invokes the jurisdiction of the Court. I do not see any reason why suit for jactitation of marriage will not
include a suit for declaration by a person falsely posing that he is the spouse of the defendant. In my view any
declaration as to the status where one party alleges marriage and the other denies, it will amount to a decree
for jactitation of marriage."
The view was followed in Nazar Qasim v. Mst. Shaista Parveen (1979 C L C 462) and Malla v. Mst. Jawai
etc. (1981 C L C 1097).
8. The next question "as to whether Section 23 was a bar to adjudication of validity of a marriage registered
under the provisions of Muslim Family Laws Ordinance (VIII of 1961)", was answered in Nazar Qasim v.
Mst. Shaista Parveen (1979 C L C 462) and Malla v. Mst. Jawai etc. (1981 C L C 1097), wherein it was held
that the dispute relating to false marriage lay wholly within the jurisdiction of Family Court and Section 23 of
the West Pakistan Family Courts Act was not a bar to such suit.
9. I am in respectful agreement with the view taken in the aforenoted authorities. Applying the ratio laid
down in the aforesaid cases to the facts of the case it is quite clear that the Judge Family Court was competent
to examine as to whether the instrument of Nikah said to have been executed in favour of present petitioner
was under duress and coercion; that the Judge Family Court as well as first appellate Court have rendered the
finding on the basis of evidence adduced by both the parties. This conclusion of fact is not open to exception
in Constitutional jurisdiction unless and until it is shown to have been vitiated by misreading or nonreading
of evidence or in excess of authority. No such circumstances were pointed, out by the learned counsel for the
petitioner warranting interference in exercise of Constitutional jurisdiction.
10. For the reasons stated above, I do not find any merit in this petition which is dismissed. The petitioner
shall bear the coast of proceeding in this court.
A.A/M-3071/L
Petition dismissed

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