JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

WP No. 500-D of 2017

JUDGMENT

Date of hearing 03.11.2017

Appellant-petitioner (Syed Sadaqat Hussain Shah) By: Saleem

Ullah Khan Ranazai Advocate

Respondent (Madiha Batool) By: Syed Mastan Ali Zaidi

Advocate.

SHAKEEL AHMAD, J.- This constitutional petition has

been preferred against the judgment and decree dated

29.4.2017, passed by the learned Additional District

Judge-III, D.I.Khan, whereby the judgment and decree

dated 12.11.2016 in family suit No.185/3 of 2014 of

Judge Family Court, D.I.Khan was set aside and the suit

of the respondent/petitioner for jactitation of marriage

was decreed as prayed for with costs.

2. Shortly narrated the facts relevant for disposal

of the instant case are that the respondent/plaintiff

brought a suit against the petitioner/defendant seeking

therein jactitation of marriage on the ground that no Nikah

between the parties had been performed, therefore, the

petitioner/defendant has got no right to claim her as his

legally wedded wife. It was alleged that the

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respondent/plaintiff belongs to Shia sect and according to

her sect, no Nikah can be performed in the absence of her

father or guardian. She also alleged that defendant’s

father and her father are first cousin inter se and they have

cordial relations with each other; that neither the Nikah

was performed nor marriage ceremony was held between

the parties, in alternative, she sought dissolution of

marriage on the basis of Khulla, if she failed to prove her

earlier stance.

3. After service of summon, the

petitioner/defendant put his appearance, contested the suit

by filing his written statement, raising therein factual and

legal objections contending therein that

respondent/plaintiff is his legally wedded wife. From the

divergent pleadings of the parties, following issues

framed:-

1. Whether the plaintiff has got a

cause of action?
2. Whether the suit is time barred?
3. Whether Nikah-Nama dated
23.10.2013 is a legal document?
4. Whether a legal relation between
the parties as husband and wife
exist on the basis of Nikah-Nama
dated 23.10.2013?
5. Whether defendant is entitled for
a decree of restitution of conjugal
rights?
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6. Whether plaintiff is entitled for a

decree of jactitation of marriage
or in case of Nikah for dissolution
of marriage on the basis of
marriage on the basis of Khulla?
Relief?

4. After recording pro and contra evidence, vide

judgment and decree dated 12.11.2016, the learned Judge

Family Court-II, D.I.Khan decreed the suit and dissolved

the marriage on the basis of Khulla against the defendant.

Not contented with the same, the respondent/plaintiff

filed appeal before learned Additional District Judge-III,

D.I.Khan. The learned Additional District Judge-III,

D.I.Khan, after affording an opportunity of hearing to

both the parties, set aside the judgment and decree dated

29.4.2017, passed by the learned Judge Family Court-II,

D.I.Khan, whereby the marriage has been dissolved on

the basis of Khulla and a decree for jactitation of marriage

was passed as prayed for with costs, hence, this petition.

5. The learned counsel for the petitioner argued

that he has proved through oral as well as documentary

evidence that a valid Nikah was performed between the

parties, in such circumstances, at the most the marriage

should have been dissolved on the basis of Khulla which

was rightly decreed by the learned Judge Family Court,

D.I.Khan. He next argued that the judgment and decree of

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the learned appeal court, whereby the judgment

and decree of the Judge Family Court-II, D.I.Khan was

set aside and a decree for jactitation of marriage was

passed is illegal without lawful authority and in conflict

with the evidence on record.

6. Conversely, the learned counsel for the

respondent vociferously defended the impugned judgment

and decree passed by the learned appeal court while

arguing that the petitioner has failed to prove that Nikah

was recited between the parties. He lastly, argued that the

alleged Nikah-Nama has been proved to be forged and

fictitious, therefore, the learned appeal court was justified

in passing a decree for jactitation of marriage.

7. I have heard the arguments advanced by the

learned counsel for the parties and perused the relevant

record.

8. It will be advantageous to reproduce the

contents of para Nos. 1, 6 & 7 the plaint, which read as

under:-

‫يہ کہ مدعيہ سيد گھرانے فقہ جعفريہ مسلک سے تعلق رکھتی ہے اور‬

‫فقہ جعفری و شريعت محمدی کے تحت ايک لﮍکی ولی يا والدين يا‬

‫سرپرست کی موجودگی کے بغير کسی سے نکاح نہيں کر سکتی۔‬

‫مدعاعليہ ايک جزباتی لﮍاکو جھگﮍالو شخص ہے اور سننے ميں آيا‬

‫ہے کہ قبل ازيں مدعا عليہ ديگر فوجداری مقدمات مين اور ايس پی‬
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‫لنگﮍيال شہيد کے قتل مقدمہ ميں ملوث رہا ہے اورمنمدعيہ کا گزارا‬

‫ہمراه مدعا عليہ ہرگز ممکن نہيں۔‬

‫فريقين کا حدودﷲ ميں بطور مياں بيوی رہنا ممکن نہ ہے اس ليے‬

‫مدعيہ تنسيخ نکاح بر بنا خلع کی مستدعی ہے۔‬

9. In the present case while going the pleading of

the parties and the entire evidence, it is noticeable that in

para No. 6 & 7 of the plaint, the respondent/plaintiff has

specifically stated that she cannot live with the

petitioner/defendant. She further asserted that now the

parties cannot live as husband and wife within the limits

prescribed by Allah The Almighty, therefore, dissolution

of marriage on the basis of Khulla is sought. If Nikah was

not performed between the parties, then why she had

sought dissolution of marriage on the basis of Khulla

stating in the plaint that now the parties cannot live as

husband and wife within the limits prescribed by Allah

The Almighty.

10. Coming to the evidence produced by the

parties in order to prove the execution of Nikah, the

petitioner/defendant produced as many as 08 witnesses.

Mashkoor Hussain DW-2, Secretary Union Council who

produced the Nikah-Nama as Ex:Dw-2/1. Ibad Ali, Nikah

Khuwan DW-1, Imran Abbas Dw-3 (marginal witness of

affidavit Ex:Dw-3/1, Saadat Hussain/defendant Dw-4,

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Malik Ishrat Abbas Dw-5 (marginal witness of affidavit

Ex:Dw-3/1), Bashir Hussain Dw-6 (marginal witness of

Nikah-Nama Ex:Dw-2/1). Syed Farhat Abbas Kazimi

Dw-7 (witness of Nikah ceremony) and Hafiz Nazir

Hussain Dw-8 (writer of Fatwa Ex:Dw-8/1). The Nikah-

Nama was registered with NADRA, computerized Nikah

form was exhibited as Ex:Dw-2/3 and marriage

registration certificate is Ex:Dw-2/4.The respondent was

examined as PW-1, Syed Saleem Akhtar PW-2 (relative

of the father of plaintiff).

11. No doubt, neither the father of the

respondent/plaintiff participated in the Nikah/marriage

ceremony of the parties nor it was held openly, as alleged

by the petitioner/defendant it was not arranged marriage

rather it was love marriage, therefore, Nikah was

solemnized secretly. The learned appeal court held that

due to non-participation of father and other relatives of the

respondent/plaintiff related to her within the prohibited

degree it casts doubt on execution of Nikah between the

parties, but as discussed above, that it was not a arranged

marriage rather it was held without the wishes of the

parents of the respondent/plaintiff, therefore, their

participation in the marriage ceremony was out of

question, particularly, when the ceremony of Nikah was

held secretly. Hafiz Nazir Hussain, Madarris Jaam-e-

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Arabia Jamiat-ul-Najaf, Kotli Imam Hussain, D.I.Khan

appeared as DW-8, who is the writer of Fatwa, Ex:Dw-8/1

belongs to Shia sect, he deposed that an adult and sane

muslim girl is competent to contract marriage of her own

sweet will, under the Shariah Muhammadi.

12. After going through the record, I reach to the

conclusion that the learned appeal court has not touched

these aspects of the case while passing the impugned

judgment. However the appeal court is directed to keep in

mind the following points/issues while deciding the

appeal beside merit.

i. Whether it was arranged

marriage or otherwise, if

otherwise whether it could be

held secretly or openly?

ii. Whether an adult and sane girl of

Shia community can contract

marriage in the absence of her

guardian/parents, if not, its effect?

iii. Whether the respondent/plaintiff

has taken self-contradictory pleas

in her pleading, if so, its effect?

Although I was minded to decide the case on merits

instead of pulling the parties to another round of

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litigations, but, when the record was perused minutely, I

deem it appropriate to accept the appeal, set aside the

impugned judgment and decree dated 29.4.2017 of

learned appeal court to decide the matter afresh in the

light of observations made above. The learned appeal

court is directed to decide the appeal within a period of

one month from the date of receipt of this notice.

Announced.
Dt:03.11.2017. SHAKEEL AHMAD
Hasnain/* JUDGE