PLJ 2006
Present: Muhammad Muzammal Khan, J.
IRSHAD AHMAD--Petitioner
versus
MUHAMMAD SHARIF and another--Respondents
Civil Revision No. 1260 of 2002, decided
on 24.2.2006.
(i)
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. 7, R. 11--Rejection
of plaint--There was certainly, a cause of action about adjustment of
Nikahnama--Plaint as it stood, did disclose a cause of action and thus it could
not be rejected. [P. 1083] A
(ii)
Mulsim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 5--Jurisdiction--Matter pertaining
the jactitation simlicitor inter-spourses was exclusively triable by Family
Courts established for this purpose because before these Courts exclusive
disputes of matrimonial nature had been made triable by the legislature--The
suit was triable by the
(iii)
Specific Relief Act, 1877 (I of 1877)--
----S. 39--Suit was filed for the
adjustment of Nikahnama and there was a reasonable apprehension that if
outstanding would cause him serious injury thus the case was covered and
maintainable requiring determination on merits. [P.
1085] F
(iv)
Words and Phrases--
----Jactitation is boasting of something
which is challenged by another especially with reference to suit of jactitation
of marriage where one of the two parties has falsely boasted or given out that
he or she was married, whereby a woman reputation of their matrimony might
ensure and the other dues for an order enjoining perpetual silence--It arises
where one person intends to keep the other silent in respect of boasting of
existence of marital relations between the two. [P.
1083] C
(v)
Jurisdiction--
----Law promulgated for settlement of
dispute between husband and wife is that in case any part of the married couple
disputes, such suit certainly would come before the Courts of exclusive
jurisdiction established in the behalf and one cannot maintain civil suit but
where such relief is claimed by a person other than husband and wife, suit in
this behalf would be entertained, adjudicated, tried and decided by the civil
Court of ultimate jurisdiction--Courts below acted with illegality and irregularity
in rejecting petitioner's plaint and in dismissing his appeal, whereas his suit
would have decided on merits after putting the parties to trial in accordance
with law--Petitioner's suit would be deemed to be pending before trial Court
which would be decided in accordance with law--Petition accepted. [Pp. 1083 & 1085] D & G
Mrs. Rizwana Anjum Mufti, Advocate for
Petitioner.
Mr. Khan Muhammad Bajwa, Advocate for
Respondent No. 1.
Mr. Shahid Azeem, Advocate for Respondent
No. 2.
Date of hearing : 24.1.2006.
Judgment
Instant civil revision was ordered to be
re-heard by this Court vide order dated 30.1.2003 on an application moved by
Respondent No. 1 Muhammad Sharif (C.M. No. 1460-C/2002). Revision petition was
initially accepted on 18.10.2002 by my learned brother Parvez Ahmad, J. (as he
then was) and the case was remanded to the trial Court with the finding that
Civil Court is competent to adjudicate upon suit filed by the petitioner for
declaration challenging Nikahnama inter Respondent No. 1 and Mst. Nusrat Bano
deceased daughter of the petitioner. Civil revision assailed orders dated
21.5.2001 and 19.3.2002 passed by the learned Civil Judge and learned
Additional District Judge, Lahore, whereby petitioner's plaint was rejected and
his appeal was dismissed, respectively.
2.
Succinctly, relevant facts are that Irshad Ahmed petitioner filed a suit
for declaration to the effect that Nikahnama dated 5.3.1997 between Respondent
No. 1 and Mst. Nusrat Bano, the deceased daughter of the petitioner, registered
with Respondent No. 2, may be declared fictitious, fabricated, based upon fraud
and void, having no effect upon his rights. It was also prayed that Respondent
No. 2 be restrained through permanent injunction from issuing any copy of the
said Nikahnama and Respondent No. be restrained from pretending himself as
husband of Mst. Nusrat Bano or using the Nikahnama anywhere for any purpose.
Petitioner pleaded in his plaint that Muhammad Sharif Respondent No. 1 was
class fellow of the deceased Mst. Nusrat Bano, who forcibly got her certain
photographs and started threatening her to marry with him and in this manner
she was being black mailed. According to the petitioner, deceased Nusrat Bano
was forcibly abducted by Respondent No. 1 on 4.3.1997 and was kept in Al-Noor
Hotel,
3.
Respondent No. 1 being defendant in the suit contested the same by
filing his written statement, wherein a preliminary objection was raised to the
effect that the petitioner had no cause of action to file the suit. The Learned
Civil Judge, who was seized of the matter, after framing preliminary issue
regarding cause of action, rejected the plaint of the petitioner vide order
dated 21.5.2001.
4.
Petitioner being aggrieved of rejection of his plaint, filed an appeal
before the learned Additional District Judge but remained unsuccessful, as the
same was also dismissed on 19.3.2002. He, thereafter, filed titled revision
petition, which was heard and decided on 18.10.2002, as noted above, but was
ordered to be re-heard on application of Respondent No. 1.
5.
I have heard the learned counsel for the parties and have examined the
record, appended herewith. Undisputedly, Respondent No. 1 claimed himself
husband of deceased daughter of the petitioner namely, Mst. Nusrat Bano, on the
basis of alleged forged Nikahnama dated 5.3.1997 and he is his this capacity
would attempt to inherit property coming to share of deceased Nusrat Bano,
being predeceased daughter of the petitioner by virtue of Section 4 of Muslim
Family laws Ordinance, 1961. Besides it, Respondent No. 1 by virtue of
Nikahnama in question would claim himself to be son-in-law of the petitioner,
creating in him a right to intervene in affairs of family of the petitioner,
thus the petitioner certainly had a cause of action about adjudgment of
Nikahnama dated 5.3.1997. Petitioner's plaint, as it stood, did disclose a
cause of action and thus the same could not have been rejected by invocation of
provisions of Order VII, Rule 11 CPC.
6.
The next question, which hinges for determination is as to whether suit
like the one in hand, which indirectly involves jactitation of marriage of
deceased daughter of the petitioner would be triable by the Family Court as per
Section 5 of the Family Courts Act, 1964 and Schedule thereof. A joint reading
of Section 5 and Schedule to the Muslim Family Laws Ordinance, 1961, makes it
abundantly clear that matter pertaining to jactitation simplicitor
inter-spouses is exclusively triable by Family Courts established for this
purpose because before these Courts exclusive disputes of matrimonial nature
have been made triable by the legislature. Situation is altogether changed in
cases where the principle of jactitation is pressed or brought for adjudication
by third parties, who are not one of the spouses i.e. husband or wife, as in
the case in hand where father of the girl claimed jactitation of her marriage.
To resolve the controversy as to whether suits involving jactitation of
marriage by third parties, one has to keep in mind ordinary dictionary meaning
of "jactitation" which has been defined in Balck's Law Dictionary as
:"boasting of something which is challenged by another". This word
has been defined in Mozlely and Whiteley's Law Dictionary with the meaning
"boasting of something which is challenged by another specially with reference
to suit of jactitation of marriage where one of the two parties has falsely
boasted or given out that he or she was married to the other, whereby a common
reputation of their matrimony might ensue and the other sues for an order
enjoining perpetual silence on that head". The words
"jactitation" and "jactitation of marriage" are explained
in the `Twentieth Century Dictionary' as follows:
"Jactitation; n. restless tossing in
lines; twitching or convulsion; tossing or bandying about; bragging; public assertion,
esp. ostentatious and false,
Jactitation of marriage, pretence of
being married to another".
In Halsbury's Laws of
"FALSE BOST OF MARRIAGE.--If anyone
persistently and falsely alleges marriage with another, the latter may obtain
in a suit for jactitation of marriage a decree of perpetual silence. Only the
person complaining that he has to been misrepresented can present such a
petition. It is now a rare procedure.
A suit for jactitation is the only case
in which a matrimonial suit can, as of right, be proceed with, without prima
facie proof of a marriage de facto.
In Goldstone v. Goldstone (1922) 127. LTR
32), this term was explained as follows:
"Jactitation of marriage is an
unwarrantable assertion that marriage exists, and it has been within the
jurisdiction of this Court for many years to intervene to put to silence the
person making a false declaration of marriage. One answer to such a suit is
that the party complaining has acquiesced in the statement, he cannot after
such acquiescence put to silence a person who persists in representations which
he has previously authorized. The two questions which arise are; (1) whether in
fact there was a ceremony of marriage and whether that ceremony was valid; and
(2) if not, whether the petitioner has permitted and encouraged the respondent
to represent herself as his wife".
Case law available on the subject
including the judgments referred by the learned counsel for the parties, simply
revolved around matrimonial dispute between husband and wife and the suits for
jactitation filed by anyone of them but none of those goes to settle the
dispute whether any third person can seek such declaration and where he should
go. Above discussed ordinary dictionary meanings of word jactitation clearly
indicate that it arises in the situation when one person intends to keep the
other silent in respect of boasting of existence of marital relations between
the two. According to my analysis, the law promulgated for settlement of
dispute between husband/wife is that in case any part of the married couple
disputes, such suits certainly would come before the Courts of exclusive
jurisdiction established in this behalf and he/she cannot maintain civil suit
but where such relief is claimed by a person other than husband/wife, suit in
this behalf shall be entertained, adjudicated, tried and decided by the Civil
Court of ultimate jurisdiction. The proposition under discussion, if looked
from another angle of applicability of Section 5 of Muslim Family Laws
Ordinance, 1961 to third person, the irresistible conclusion would be the same
that the suit in hand was triable by the Civil Court and was correctly filed by
the petitioner, there.
Before parting with
the judgment I must
observe that petitioners' suit, as filed, was for adjustment of
document/Nikahnama and he had reasonable apprehension that if, if left
outstanding, would cause him serious injury thus the same was covered and
maintainable under Section 39 of the Specific Relief Act, 1877, requiring
determination on merits.
7.
For the reasons noted above, both the Courts below acted with illegality
and irregularity in rejecting petitioner's plaint and in dismissing his appeal,
whereas his suit should have been decided on merits after putting the parties
to trial in accordance with law, thus the same are not sustainable, hence this
revision petition is accepted and impugned orders/judgments/ decrees dated
21.5.2001 and 19.3.2002 are hereby set aside with the result that suit of the
petitioner shall be deemed to be pending before the trial Court, which shall be
decided in accordance with law. Parties are directed to appear before the
learned District Judge,
(Fozia
Fazal) Order accordingly.