Family Appeal No. /2015 
Nida Sohail Azhar w/o (Late) Abdul Sohail Azhar, Muslim, Adult, r/o G-26, 
Block-II, Federal “B” Area, Karachi. -------------------------------------- APPELLANT 
1. Rabia Qadir d/o Abdul Qadir Muslim, Adult, r/o F-10, Bhayani Apartments, 
Block “A”, North Nazimabad, Karachi. 
2. The Learned Xth Family Judge, Karachi (Central) ------------------ RESPONDENTS 


                The Appellant being aggrieved and dissatisfied with the order dated 10/10/2015 hereinafter referred to as the impugned order, passed in Family Suit No. 112/2015 by the Learned Respondent No. 2, the Appellant prefers this appeal against the said impugned order on the following facts and grounds.                                                                     (Certified copy of the impugned order dated 10/10/2015 is annexed herewith and marked as Annexure “A-1”) 


1. The Appellant is the widow of Late Abdul Sohail Azhar s/o Abdul Sattar Azhar, and that she lived a cordial, happy and amiable marital life with her deceased husband. It is submitted that the husband of the Appellant passed away on 11/03/2009. 

2. That the Respondent was employed as a maid servant in the house by the Appellant somewhere in 2005 and served therein till the death of the husband of the Plaintiff.

3. It is submitted that the Appellant, on 17/04/2015, received a notice on behalf of the Respondent, wherein she had framed herself to be the widow of the late husband of the Appellant and demanded that she be given her share as a legal heir in the property of the deceased husband. 
                (Photocopy of the said notice along with forged Nikahnama dated 17/04/2015 is annexed herewith and marked as Annexure “A-2”) 

4. That the Appellant therefore, filed Suit No. 112/2015 for Jactitation of marriage between her late husband and the Respondent. 
                                           (Certified copy of the said plaint in suit No.264/99 is annexed herewith and marked as Annexure “A-3”) 

5. Service against the defendant was held good after the resorting the various modes of service under order 5 Rule 20 Civil Procedure Code by the Learned Respondent No. 2, therefore, on no appearance of Respondent, the Learned Respondents No. 2 declared ex-parte proceedings, as such ex-parte proof was filed by the Appellant before the Trial Court, wherein the Appellant reiterated the contents of her plaint.
                (Photocopy of the said Proof is annexed herewith and marked as Annexure “A-4”). 

6. It is submitted that summons was also issued to the Nikah Registrar namely Haji Moinuddin Ahmed, who had allegedly shown to have acted as Nikah Khawan. He appeared before the Learned Trial Court and produced the relevant documents which did not show any entry of the marriage between the Plaintiff’s deceased husband and the Respondent. 


7. That despite the Family Suit No. 112/2015 being declared exparte by the Learned Trial Court, it passed the said impugned order dated 10/10/2015, hence this appeal. 


I. That the impugned order is bad in law, illegal and is against the principles of natural justice. 

II. That the Learned Trial Court has erred in holding “This is a case for Jactitation of Marriage filed by a third person and not by the spouse”. It is submitted that the Learned Trial Court with the same breath observes “Plaintiff is no doubt the spouse of Abdul Sohail Azhar but the Defendant is not the spouse of the deceased”. In the case of Muhammad Azam v. Muhammad Iqbal reported in PLD 1994 Supreme Court 95, it was observed: 
“From these weighty observations it can safely be concluded that a suit regardless of its timings can be filed by a person other than the spouses involved in the jactitation of marriage. And so, can a suit be filed by the spouses, against third party, with a view to prevent them from denying their marriage.”
III. That the Learned Trial Court has erred in holding that the Suit No. 112/2015 has been filed after more than a period of six years, whereas the Appellant only became certain through notice dated 17/04/2015 that the Respondent is claiming and pretending to be married to the deceased husband of the Appellant. 

IV. That the Learned Trial Court has observed categorically that the “Nikah Registrar was not looking to be an honest person”. In spite of this observation, the Learned Trial Court failed and neglected to declare the alleged Nikahnama dated 02/01/2006 as false, fabricated and manufactured. 

V. The Learned Trial Court in spite of the categorical statement of Haji Moinuddin Ahmed, the Nikah Registrar, on oath in the said Suit for Jactitation of Marriage that no such marriage between Late Abdul Sohail Azhar and Rabia Qadir, the defendant in Family Suit No. 112/2015, and the Respondent herein has been entered in his record. 

VI. The Learned Trial Court has not appreciated the fact that the Appellant in her Family Suit No. 112/2015, has raised certain categorical assertions that the deceased husband of the plaintiff never contracted a second marriage much less with the defendant and she is falsely claiming to be the widow of the said deceased. 


VII. That the Learned Trial Court has failed to appreciate the fact that there is no contradiction between the suit, which has been filed on oath, and the affidavit in the ex-parte proof, which has also been filed on oath. It is submitted that the contents of the plaint as well as the ex-parte proof stand admitted as the Respondent has deliberately and wilfully avoided to participate in the proceedings before the Learned Trial Court. 

VIII. It is submitted that the Appellant has discharged her burden of proof in proving the alleged Nikahnama dated 02/01/2006 between her late husband r and the Respondent herein, to be forged, fabricated as the same has not been performed or registered by the Nikah registrar of Unit No. 06, Halqa No. 14, where the said alleged marriage has been alleged to have been held. 

IX. That the Learned Trial Court ignored that under Section 5 of the Muslim Family Law Ordinance, 1961, registration of marriage is compulsory and if the said procedure is not adopted and even otherwise the said marriage does not fulfil the legal requirements, the non-registration of the Nikahnama causes doubts on its existence and solemnization. 

X. The Learned Trial Court has not considered the irregular and illegal manner in which the alleged witnesses are allegedly subscribing their respective signature in column-11 and the column of witnesses without disclosing their CNIC Nos. 

XI. That the instant Appeal has been filed within the time prescribed by law. 

XII. That the Appellant craves leave to add and argue any other point, which may arise at the time of arguments. 


It is, therefore, in the interest of justice, good conscience and equity prayed that this Hon’ble Court may be pleased to pass the following orders: 

a. Call for the record and proceedings of Family Suit No. 112/2015 from the court of Learned Xth Family Judge Karachi (Central) and after examining the legality and propriety of the impugned order dated 10/10/2015, set aside the same and may further be pleased to be pleased to repudiate, cancel and invalidate the forged Nikahnama dated 02/01/2006 between the Respondent and the deceased husband of the Appellant.

b. Grant any other, better, further and/or equitable relief that this Hon’ble Court deems fit, proper and necessary given the prevalent facts and circumstances in the instant lis. 

c. Costs of the appeal may be awarded. 

Karachi                                                                                         APPELLANT

Dated: 03/04/2015                                                      ADVOCATE FOR THE APPELLANT 


I, Nida Sohail Azhar w/o (Late) Abdul Sohail Azhar Muslim, adult, r/o G-26, Block-II, Federal “B” Area, Karachi holding CNIC No. 400568-8745621-0 do hereby on solemn oath and affirmation submit that whatever is stated above is true and correct to the best of my knowledge and belief. 

Identified by me

Document(s) filed: Annexure ‘A-1 to A-4’ Document(s) relied upon: 
Annexure ‘A-1 to A-4’ and all other documents that are necessary and relevant to the subject matter. Address for service: As mentioned in the Title. 
Address for the Appellant’s counsel: As mentioned in the Vakalatnama 
Drafted by me
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