FAHMEED AKHTAR vs 1st ADDITIONAL DISTRICT JUDGE, SANGHAR S — 2022 MLD 1728 KARACHI-HIGH-COURT-SINDH

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FAHMEED AKHTAR VS 1st ADDITIONAL DISTRICT JUDGE, SANGHAR S.5, Schd.---Suit for jactitation of marriage---Nikhanama---Proof---Petitioner/plaintiff filed suit for jactitation of marriage against defendant /respondent on the ground that alleged nikahnama relied upon by respondent was forged and fabricated---Petitioner filed present suit for jactitation of marriage which was decreed while maintenance to respondent was declined though no independent suit was filed ----Respondent filed appeal against said judgement and decree, which appeal was allowed by Appellate Court----Held, that in a suit for jactitation of marriage as the present one undoubtedly the burden was upon petitioner/plaintiff to show that nikahnama was a forged and fabricated document---Petitioner attempted to cite a number of documents and referred to number of exhibits to dispute and establish doubtfulness of nikhanama as well as the depositions of the witnesses which were not even looked into by Appellate Court----Pleadings of some other litigation were also exhibited which showed that the marital ties of respondent with some other man, which documents were ignored by Appellate Court without any reasoning---Prima facie there was sufficient evidence to doubt about the authenticity of the Nikahnama---Deposition on oath by the petitioner had not been substantially refuted---Respondent had to discharge some burden prima facie by examining some material witnesses shown in Nikahnama---Defendant/respondent could have diluted the evidence that petitioner deposed and presented in Family Court in a number of ways---Evidence such as alleged signatures of the petitioner on the nikahnama as well as thumb impressions of the witnesses of marriage could have been sent or asked to be sent for verification---Witness whose thumb impression was available along with CNIC was disclosed as person 'F' whereas name of the witness who saw the appointment of Advocate for the bride was not disclosed but the thumb impression could have been sent to NADRA for the verification to obtain data as to whose thumb impression it was---Original Nikhanama could have been conveniently sent by Appellate Court for verification of petitioner's signature which was not done---Appellate Court was burdened with more responsibility if a judgment was being set-aside then in case where the judgement was being upheld, as Appellate Court could agree with the reasons assigned by the Trial Court---When the judgement and decree was being set-aside then strong reasons were required to be provided by the Appellate Court----General statement was given by the Appellate Court that the Trial Court had given much weight to the evidence adduced by the petitioner being more reliable and relevant in comparison to the evidence led by the respondent---Although nothing was stated as to why the judgement was being set aside, the only factors that prevailed with Appellate Court was that some photographs were filed and exhibited, which showed that petitioner and respondent were sitting together---Such pictures alone did not disclose or establish that there could only be a relation of husband and wife between them, hence on the strength of a photograph alone without any corroborating evidence the judgement and findings of Family Court were reversed----Material evidence was still missing and the Appellate Court should have asked for it and should have signatures of the petitioner on Nikahnama for the forensic analysis which may corroborate with evidence already available on record before delivering a final verdict----Petition was disposed of accordingly and case was remanded to Appellate Court for recording additional evidence and referring Nikahnama for a forensic analysis.

FAHMEED AKHTAR vs 1st ADDITIONAL DISTRICT JUDGE, SANGHAR S — 2022 MLD 1728 KARACHI-HIGH-COURT-SINDH

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