Bar to Suit for Declaration in Pakistan:
Chairman of Arbitration Council has no power to issue certificate either rejecting divorce or holding the same to be ineffective. Family Court being possessed of exclusive jurisdiction to determine validity of marriage and suit for declaration in Pakistan and permanent injunction cannot be filed in civil court. Determination of dispute relating to false marriage lies. Determination of dispute relating to false marriage lies within jurisdiction of Family Court. Section 23 would be no bar to suit for declaration in Pakistan and possession before Family Court. Judge Family Court was competent to examine whether marriage certificate was executed under duress and coercion. Finding of fact by two Courts is based on evidence adduced by both parties. There is no misreading or non-reading of evidence warranting interference in exercise of Constitutional jurisdiction, Petition dismissed.
Suit for Declaration in Pakistan and Permanent injunction:
Term “Suit for declaration in Pakistan” and “Permanent injunction” not to be confined to civil cases. Suit for declaration in Pakistan along with permanent injunction regard less of its timings can be filed by person other than spouses involved in cancellation of marriage. Suit for declaration in Pakistan can also be filed by spouses against third party with a view to prevent them from denying their marriage. Nature of suit for declaration in Pakistan of marriage is of summary nature. Its main object is to perpetually silence a false allegation or claim put forward by defendant, of a marriage having taken place between defendant and plaintiff. It may include a suit for declaration in Pakistan by a person falsely posing to be spouse of defendant. It can be filed before Family Court even by a person other than spouses involved in cancellation of marriage.
Suit for Declaration in Pakistan of Marriage:
Character of suit for declaration in Pakistan of marriage is not altered by making additional prayer for adjudging marriage certificate as forged and seeking its cancellation. Held there was an air of utter reality in contention for husband/petitioner that suit, as framed and filed by wife/respondent, could not be said to be a suit for declaration in Pakistan of marriage and relief sought could only be granted by competent Civil Court and not by a Family Court. Suit for specific performance of agreement between spouses was valid. Earlier suit for declaration in Pakistan filed by petitioner for custody of children had been dismissed by Family Court and attained finality up till the Supreme Court. Second suit instituted by petitioner to determine right of visitation based on an agreement between spouses fell within the exclusive jurisdiction of the Family Court. Petitioner had not agitated right of visitation in the earlier suit but it was deemed to have been directly and substantially in issue in the earlier Suit.
What is the Principle for Res Judicata?
Principle of res judicata applied in the case and Court seized with second suit could not try the same in view of Section 11, C.P.C. Second suit was also not maintainable in view of Section 21 of Specific Relief Act, 1877 as it was based on an agreement which contained a promise by respondent to arrange meeting of petitioner with minors till an indefinite period. Both Courts below having rightly dismissed the suit and appeal, revision was dismissed with Costs. Principle of res judicata with regard to plea of Khula' is not applicable in case of dissolution of marriage. Wife gets fresh cause of action to approach Family Court in view of fresh circumstances and subsequent events which may take place between the parties after withdrawal of previous suit. Bar on appeal from decree of Family Court. Barring clause of S. 14 of the West Pakistan Family Courts Act, 1964 operated where decree of maintenance was challenged to disentitle the decree-holder or reduce the rate of maintenance allowance and the same was not applicable to appeals for enhancement of maintenance.