Law: Family Courts Act, 1964

Section: 5

Law: Specific Relief Act, 1877

Section: 42

(a) Family Courts Act (XXXV of 1964)--- ----S. 5, Sched.---Suit for jactitation of marriage---Maintainability---For entertaining a suit for jactitation of marriage, foundation of marriage i.e. Nikahnama and existence of valid marriage is to be made subject of that litigation. Blacks Law Dictionary, Eleventh Edition and Muhammad Anwar v. Mst. Shagufta Ahmad and 2 others 2004 PCr.LJ 1071 rel. (b) Family Courts Act (XXXV of 1964)--- ----S.5---Specific Relief Act (I of 1877), S.42---Jactitation of marriage---Valid marriage, determination of---Parties were husband and wife inter se and husband sought jactitation of marriage on the plea that divorce pronounced by him was revoked and there existed a valid marriage---Wife resisted the suit on the ground that divorce pronounced by her husband attained finality and there remained no valid marriage between them---Family Court decreed the suit in favour of husband but Lower Appellate Court dismissed the same---Validity---Issue between parties was not whether marriage was in existence or otherwise but a question as to whether, Talaq had become effective or was revoked as alleged by husband---Findings of Lower Appellate Court regarding dismissal of suit of husband was not based on any of the documents and evidence available on record---Documents i.e. divorce deed, Talaq effectiveness certificate, order of revenue authorities, statement of wife during proceedings before Arbitration Council, her stance during first suit for maintenance and recovery of dower and subsequent claim were neither considered nor discussed---No observation with regard to such documentary evidence was rendered which had made the result of misreading and non-reading of evidence and illegality floating on the surface of record---Lower Appellate Court proceeded to dismiss suit of husband by treating it as suit for declaration---High Court observed that when it was established that proceedings before Family Court were coram non judice, proper course was to return the plaint for its presentation before Court of competent jurisdiction---Lower Appellate Court while hearing appeal against and decree of Family Court, wrongly dismissed suit for declaration, when…

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