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Writ Petition No. 511 of 1984, decided on 1st March, 1986.

---Ss. 14(1) & (2)‑Jactitation of marriage‑Appeal ‑Competency of‑Appeal, held, would lie from a decision in a suit for jactitation of marriage‑Such appeal would not be barred under S. 14(2) of Act XXXV of 1964.‑[Appeal (civil)].

Mst. Rushda Zareen v. Muhammad Saleh P L D 1976 Lah. 1327; Riaz v. Mst. Zainab Bibi etc. 1985 C L C 1229 and Muhammad Nazir Khan v. Dr. Muhammad Hasan and another P L D 1974 Lah. 49 ref.

‑‑ Ss. 14(1) & (2)‑Constitution of Pakistan (1973), Art. 199 Constitutional jurisdiction, exercise of‑Remedy by way of appeal against finding of Family Court not only available but being adequate and quite efficacious, held, would not justify exercise of constitutional jurisdiction by High Court for setting aside such finding‑Remedy against same, however, would lie before District Judge in appellate jurisdiction.

Arshad Tabrez for Petitioner.

Muhammad Hanif Bhatti for Respondent No. 1.

Date of hearing : 28th January, 1986.

The petitioner through this writ petition seeks the setting aside of a decree dated 3‑9‑1984, passed by the Judge Family Court, Rawalpindi whereby the marriage of the petitioner with respondent No, 1 was dissolved on the basis of Khula' and asks for the passing of a decree on the ground of jactitation of a marriage:‑

2. The petitioner instituted a suit for jactitation of marriage, on 30‑3‑1983, against respondent No. 1 in the Family Court at Rawalpindi by alleging that she was 16 years old and was putting up with her parents in village Khaderpur tehsil and District Rawalpindi when on 31‑8‑1982, in the absence of her father near about night time respondent No. 1 accompanied by Zahoor, Ashfaq and Ilyas forcibly abducted her and she was kept confined for a period of one month by respondent No. 1 and the said persons at various places under an armed vigilance, during which period her thumb‑impression was obtained on blank papers on a pistol point. The petitioner's father got a case for abduction regis tered against respondent No. 1 alongwith others on 5‑9‑1982, with the Police of Rawat vide F. I. R. No. 80/82 under Zina Hudood Ordinance. The petitioner had no knowledge as to the fact that her parents had pro ceeded for Haj, shortly thereafter the abduction of the petitioner by respondent No. 1 and his companions. She, however, after a period of one month managed to escape from the clutches of her abductors, by which time her parents were out of the country. The respondent No. 1 committed Zina‑bil‑Jabr with the petitioner during the period of deten tion. The delinquents were arrested by the Police. The respondent No. 1 in order to defeat the course of law forged a bogus Nikahnama showing the petitioner as the bride. The petitioner being educated upto 6th class was supposed if at all to sign a document rather than to subscribe to that with a thumb‑impression. The respondent No, 1 was already married to one Mst. Maqsoodan Begum from whom he had five daughters, out of them two daughters had been married. The peti tioner could not be taken as having married a person so situated. The respondent No. 1 on the strength of the said fake Nikahnama started claiming himself as husband of the petitioner whereas the petitioner had never lawfully entered into any marriage with him. She prayed in her suit a decree for jactitation of marriage with a declaration that the marriage claimed was null and void and of no legal effect with an injunction to restrain respondent No. 1 from claiming himself as a lawful husband of the petitioner. In the alternative she also prayed a decree for the dissolution of marriage on the ground of Khula if her first prayer was refused.

The respondent No. 1 contested the suit by denying the truth or 'the averments in the plaint and maintaining that the petitioner of her own accord entered into a marriage with‑ him duly solemnised and she was per Nikahnama his legally wedded‑wife.

3. The learned Judge Family Court on issue No. 1 that whether the petitioner was a legally wedded‑wife of respondent No. 1 observed that the fact that the petitioner was not a consenting party to the Nikah with respondent No. 1 appeared to be incorrect. Exh. D. 3 which was part of the Nikahnama showed that the petitioner in the very presence of the witnesses thumb‑marked the Nikahnama. Moulvi Muhammad Hussain D. W. an independent witness had performed the Nikah who had stated that the petitioner with her very consent thumb‑marked the Nikahnama and entered into the Nikah with respondent No. 1. Maqbool Ahmad Khan, Advocate another independent witness had attested an affidavit of the petitioner and had clearly given the identification marks of the peti tioner on the back of Exh. D. 2. Ghulam Qadir D. W. 3 had categorically stated that he had thumb‑marked the Nikahnama Exh. D. 3 who was not put any question in the cross‑examination from where that could be ascertained that he was inimical to the petitioner. The statement of the petitioner that she remained with respondent No. 1 for a month in the house of his brother‑namely Haji where she was kept in confinement and respondent No. 1 had been committing Zina‑bil‑Jabr seemed to the learned Judge to be baseless because of the reason that she herself had admitted that the house where she was kept a daughter of respondent No. 1 was also residing therein ; the statement of the petitioner that she was kept under vigilance and was not allowed to move out of the house further seemed to be vague ; the assertion of respondent No. 1 that he did not have any male issue from his first wife so she allowed him to enter into another marriage seemed to be correct, and also that the father of the petitioner had agreed to give her in marriage to respondent No. 1 and later on the father of the petitioner changed his mind and wanted to marry her with someone else, on which the petitioner had of her own come to the house of respondent No. 1 had some force, that was when the parents of the petitioner had come back from Saudi Arabia after performing the Haj that they instigated the petitioner to file the suit. The sum total of the finding on which the very issue was decided in favour of respondent No. 1 arrived at by the learned Family Judge was that the petitioner with tier free consent entered into Nikah with respondent No. I at Rawalpindi as such as proved the petitioner was legally wedded‑wife of respondent No. 1. As to issue No 2 that if issue No. 1 was proved whether the peti tioner was entitled to Khula in the alternative and on what term the learned Judge after referring to the part of the statement of the petitioner that she did not want to see any further the petitioner as be was an aged man (47 years old) who had five daughters from whom two had been married and she was 18 years old (she was born according to the birth certificate on 12‑8‑1959 and was by the time 25 years old). found that the relation of the spouses was not conducive to the living in marriage any further as there was in the circumstances every likelihood of not keeping the limits prescribed by God Almighty. The respondent No. 1 had failed to prove any benefit having been conferred on the petitioner during the marriage so the petitioner was entitled to get a decree for the dissolution of marriage on the basis of Khula simpliciter as a result thereof the learned Judge decreed the suit on the alternative prayer.

4. The learned counsel for the petitioner has contended that the learned Family Judge erroneously decided issue No. 1 in favour of respondent No. 1 and gave final verdict on issue No. 2 whereby he dissolved the marriage on the basis of Khula instead of jactitation of marriage. The decision proceeds inconsistently with the evidence on the record. He has asked for setting aside of the judgment of the learned Family Judge and prayed for a decree against respondent No. 1 on the basis of jactitation of marriage.

5. The learned counsel appearing for respondent No. 1 has raised a preliminary objection as to the competence and maintainability of this constitutional‑ petition by submitting that the learned Family Judge granted the decree for dissolution of marriage on the ground of Khula. The decision on issue No. 1 in respect of jactitation of marriage was appealable under section 14 of the West Pakistan Family Courts Act, 1964 and an appeal was in fact fled in the Court of the District Judge at Rawalpindi and was withdrawn on 9th October, 1984 which fact was suppressed by the petitioner. In the absence of an appeal qua the finding on jactitation of marriage the decision of the learned Family Judge became final, hence cannot be questioned by filing this constitutional petition. The learned counsel has in support of the objection referred to the provision of section 14 (2) of the West Pakistan Family Courts Act, 1964 to point out the matters in which no appeal lies from a decree by a Family Court, where a decree for dissolution of marriage except in the cases provided therein is mentioned from which no appeal lies. He has also relied upon Mst. Rushda Zareen v. Muhammad Saleh (P L D 1976 Lah. 1327) in this decision it was observed that Section 14 of the West Pakistan Family Courts Act provided for appeal against "decisions" as also against "decrees" unless a decree fell within the prohibition contained in sub section (2) thereof, The decree for dissolution of marriage on the ground of Khula was not appealable but the decision qua the dower was appealable under section 14 (1). It was further observed that the petitioner in the case having another remedy open through appeal under section 14, subsection (1) of the Family Courts .Act and the said remedy being undoubtedly efficacious and adequate there was no justification for entertaining the controversy in writ jurisdiction of this Court yet it was observed that in those circumstances if so advised, the petitioner might, if that was available to her take the plea of her filing the writ petition under bona fide belief that the remedy by way of appeal was not available. Riaz v. Mst. Zainab Bibi etc. (1985 C L C 1229), in this case it was held that undoubtedly the suit out of which the appeal had arisen was a suit for jactitation of marriage and not a suit for dissolution of marriage, in terms of section 14, a decision given or a. decree passed by a Family Court was made appealable. The decision given in a suit for jactitation was covered by the term decision' or a 'decree' passed by the Family Court in its exclusive jurisdiction conferred on it by Provisions of Family Courts Act, 1964.

The learned counsel for the petitioner has replied that the finding given on issue under jactitation of marriage takes its merger in the decree as it stands from which obviously under section 14(2) of the Family Courts Act, 1964 no appeal lies, therefore, the writ as brought is maintainable. The fact of filing the appeal and its withdrawal has been admitted by the learned counsel. He has submitted that the relief by way of a writ is not to be denied merely because some other remedy under general law is avail able. In this behalf the learned counsel has relied upon Muhammad Nazir Khan v. Dr. Mubashar Hasan and another (P L D 1974 Lah. 49). This decision stands to the effect that the relief by way of a writ is not to be denied merely because some other remedy under law is available if that remedy is expensive, not adequate or not equivocal.

6. Before the objection raised by the learned counsel for respondent No. 1 is determined it is necessary to refer to the provision of the above said Act. Section 5 of the Family Courts Act, 1964 provides that subject to provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters speci fied in the Schedule. Now the matters specified in the Schedule are : (1) Dissolution of marriage, (2) Dower, (3) Maintenance. (4) Restitution of Conjugal rights, (5) Custody of children, (6) Guardianship and (7) Jactita tion of marriage. Section 14 of tire Family Courts Act, 1964 provides:

"(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable:‑

(a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status of a District Judge or an Additional District Judge; and

(b) to the District Court, in an other case.

(2) No appeal shall lie from a decree by a Family Court : ‑‑

(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939;

(b) for dower not exceeding rupees one thousand;

(c) for maintenance of rupees twenty‑five or less per month;

From the provision so quoted it is plain enough that an appeal lies under section 14(1) of the Family Courts Act from a decision in a suit for jactitation of marriage because from this matter the appeal has not been barred by subsection (2) of section 14 of the Act. Now with reference to the matter in issue here what is required is to see that what was the nature of the suit and what was done by the learned Family Judge. The suit as mentioned above was virtually a suit for jactitation of marriage but with an alternative prayer for dissolution of marriage on the ground of Khula if the suit as brought failed on any technicality. The learned Judge returned his finding on the question of jactitation of marriage against the petitioner and treated the petitioner as legally wedded‑wife of respondent No. 1 and then in the terms of the alternative prayer decreed the suit for dissolution of marriage on the ground of Khula so the suit is to be treated as having been n dismissed for jactitation of marriage and' decreed for dissolution o f marriage on the basis of Khula. The objection raised by the learned counsel for respondent No. 1 is sustainable. The remedy against the dismissal of the suit on the question of jactitation of marriage lay by. way of an appeal to the District Judge which was adequate and quite efficacious, therefore, the writ petition challenging the finding of the learned Family Judge on jactitation of marriage is not maintainable. It has not been taken as necessary to enter upon the contention raised by the learned counsel for the petitioner on merits keeping in view that the petitioner may think of getting her appeal once filed before the District Judge as revived provided she can make out her case in that behalf, relying on that she prosecuted the cause further under a bona fide belief that the remedy by way of an appeal was not available.

This writ petition in the result, is dismissed but in the circumstances there is no order as to costs.

A. A. Petition dismissed.

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