Naeem Niaz Awan through Ahmad Iqbal Mir Vs AD&SJ Lahore etc

Stereo. HCJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No. 71795/2023

Naeem Niaz Awan Vs.

Additional District Judge and others

JUDGMENT

Date of hearing: 20.12.2024 Mr. Zahid Ali Qadri, Advocate, assisted For the Petitioner:

by Mr. Ahmad I. Mir, Advocate.

Mr. Sittar Sahil, Assistant Advocate For Respondents No. 1 & 2:

General, Punjab.

For Respondent No.3: Rana Zulfiqar Ali Khan, Advocate.

Tariq Saleem Sheikh, J. – Respondent No.3 claims that she is the Petitioner’s wife, having married him in Lahore on 22.04.2001. She also holds CNIC No. 35202-2756524-0, issued by the National Database and Registration Authority (NADRA), showing the Petitioner as her husband, which she alleges was obtained after completing all legal formalities. Respondent No.3 further claims that a son, M.B. (name withheld for privacy), was born from the marriage on 12.06.2005, and his birth was registered with NADRA under Child Registration Certificate (CRC) No. 100814-10-000606454-01, denoting the Petitioner as his father.

2.On 27.01.2015, Respondent No.3 and M.B. filed a civil suit against the Petitioner and others seeking a declaration that Respondent No.3 was the Petitioner’s lawful wife and M.B. his son. The Petitioner contested the said suit by filing a written statement, specifically denying both the marriage with Respondent No.3 and the paternity of M.B. The court framed issues and directed Respondent No.3 and M.B. to produce evidence to substantiate their claims, but they failed to do so despite multiple opportunities. On 11.11.2017, they withdrew that suit.

3.On 10.03.2016, while the aforementioned civil suit was still pending, Respondent No.3 filed another suit for the dissolution of marriage on the basis of Khula before the Family Court, which she did not disclose to the civil court. The Family Court decided the matter in her favour through an ex parte judgment and decree dated 30.05.2016. Based on this decree, Union Council No.256, Ali Raza-Abad, Lahore, issued her Divorce Certificate dated 19.09.2016.

4.The Petitioner challenged the ex parte judgment and decree dated 30.05.2016 by filing an application under sections 9(6) and 9(7) of the Family Courts Act, 1964 (the “Act”), alleging that Respondent No.3 had fraudulently obtained it by providing an incorrect address for service. The Family Court accepted the application by order dated 16.09.2017 and revived the proceedings in Respondent No.3’s suit for dissolution of marriage. Consequently, on 18.01.2018, the Union Council Ali Raza-Abad withdrew the Divorce Certificate. NADRA confirmed its cancellation vide letter dated 16.04.2018.

5.Importantly, on 29.11.2016, Respondent No.3 filed an application under section 7 of the Guardian & Wards Act, 1890, seeking her appointment as M.B.’s guardian. The application was decided ex parte in her favour by the Guardian Judge-II, Lahore, through an order dated 25.07.2019. The Petitioner has challenged this ex parte order, and the proceedings are currently pending.

6.On 10.05.2017, the Petitioner instituted a suit for jactitation of marriage against Respondent No.3, which was consolidated with her suit for dissolution of marriage. On 28.03.2018, the Family Court framed the following consolidated issues:

1)Whether the plaintiff is entitled to a decree of jactitation of marriage against the defendant? OPP

2)Whether the defendant is entitled to a decree of dissolution of marriage? OPD

3)Whether the plaintiff has filed the instant suit with mala fide intention just to blackmail and harass the defendant? OPD 4) Relief.

(The Petitioner was the plaintiff, and Respondent No.3 was referred to as the defendant in those proceedings).

7.During the pendency of the above-mentioned suits, Respondent No.3 filed an application requesting M.B.’s DNA test to establish his paternity. The Family Court dismissed the application through an order dated 17.09.2019, which neither party challenged. This left the dispute regarding M.B.’s paternity unresolved, further complicating the ongoing litigation.

8.As stated earlier, Respondent No.3 acquired CNIC No. 35202-2756524-0, claiming to be the Petitioner’s wife. The Petitioner submitted an application to NADRA seeking its cancellation. When NADRA failed to take action, the Petitioner filed Writ Petition No.2660/2015 before this Court. Thereupon, NADRA blocked Respondent No.3’s CNIC.

9.The Family Court recorded the parties’ evidence in the above-mentioned suits. Respondent No.3 testified as DW-2 and concluded her oral testimony on 14.03.2023. Thereafter, on 5.04.2023, her counsel submitted the following documents by way of documentary evidence through his own statement which the court exhibited:

(i)Form-B of M.B. issued by NADRA (Exh. D-4), Birth Certificate of M.B. (Exh. D-5), (iii) Divorce Certificate (Exh. D-6), (iv) certified copy of the application and the court’s order dated 25.7.2019 regarding the appointment of Respondent No.3 as the guardian of M.B. (Exh. D-7). The Petitioner’s counsel objected to the exhibition of these documents, but the court proceeded regardless. Thereupon, the Petitioner filed a written application praying that the documents Exh. D-4 to D-7 be de-exhibited and disregarded. The Family Court dismissed the application on 11.07.2023, holding that it lacked jurisdiction to de-exhibit any document because it would amount to reviewing a previous order, which was impermissible under the Act. The court stated that the questioned documents were “public documents” that could be lawfully exhibited through a counsel’s statement, even without being sworn under oath. The Qanun-e-Shahadat 1984 (QSO) was not applicable strictly to family cases. The court noted that Respondent No.3 explicitly mentioned the said documents in her reliance form (submitted under Order VII Rule 14 CPC) filed with her statement in the suit for jactitation of marriage. Furthermore, the Petitioner was fully aware of

them. It highlighted that the Petitioner had annexed a copy of M.B.’s birth certificate (Exh. D-5) with his written statement in the suit for jactitation of marriage on 19.02.2018. The court also observed that the Petitioner referred to the Divorce Certificate (Exh. D-4) in paragraph 14 of his written statement in the suit for dissolution of marriage and stated that he had filed an application with the Union Council for recalling the Divorce Certificate. Moreover, Respondent No.3 presented the Divorce Certificate during reconciliation proceedings on 10.03.2018. Lastly, during cross-examination, the Petitioner’s counsel asked Respondent No.3 questions regarding M.B.’s Form-B.

10.The Petitioner appealed before the District Court, which the Additional District Judge dismissed vide judgment dated 13.10.2023.

11.The Petitioner has assailed the Family Court’s order dated 11.07.2023 and the Additional District Judge’s judgment dated 13.10.2023 before this Court through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 (the “Constitution”).

12.The Petitioner’s counsel, Mr. Zahid Ali Qadri, Advocate, contends that the Family Courts Act 1964 is a special law that provides a specific procedure for the production of documentary evidence by the parties to the suit – under section 7(3) for the plaintiff and under section 9(2) & (3) for the defendant under the Act. Additionally, the evidence must be presented in accordance with section 11 of the Act and Rule 10A of the West Pakistan Family Courts Rules, 1965. Mr. Qadri contends that adherence to this procedure is mandatory and that no documentary evidence can be adduced in violation of these provisions. He asserts that the documents Exh. D-4 to D-7 are disputed and should not have been admitted through the counsel’s statement. He argues that their admission on the basis of the counsel’s statement deprived the Petitioner of the opportunity to challenge their authenticity in cross- examination. He concludes that the impugned order and judgment are perverse and unsustainable.

13.The counsel for Respondent No.3, Rana Zulfiqar Ali Khan, Advocate, argues that section 17 of the Act excludes the application of the Code of Civil Procedure 1908 (CPC), except sections 10 and 11

CPC, and the QSO. Hence, the Family Court can adopt any procedure to regulate its proceedings. He contends that the Family Court had rightly exhibited the documents Exh. D-4 to D-7. He supports the reasons advanced by the learned courts below in this regard and prays that the impugned order and the judgment be upheld and that this petition be dismissed.

Opinion of the Court

14.The Petitioner has objected to the Family Court receiving documents Exh. D-4 to Exh. D-7 as evidence and marking them as exhibits, arguing that they were not presented by Respondent No.3 during her testimony but were introduced by her counsel through his own statement. The first question for consideration is the scope and authority of the counsel representing a party in litigation and whether such authority extends to tendering documents as evidence. Let us first examine the relevant provisions of the QSO.

15.Article 1(b) of the QSO defines a “document” as “any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.” Articles 85 and 86 distinguish between “public documents” and “private documents”, respectively.

16.The issues of relevance and admissibility are fundamental under the QSO, serving as legal gatekeepers in judicial proceedings. Relevance pertains to the logical connection between a fact and the matter in issue. Article 2(2) of the QSO states that a fact is relevant if it has a legally recognized connection with another fact in any manner specified in the QSO. Articles 18 to 46 primarily govern the relevancy of facts. The standard for relevance is broad: relevant facts, when considered alone or with other facts, make the existence or non-existence of a disputed fact more probable or improbable. However, relevance alone does not guarantee admissibility; evidence must also meet the legal criteria prescribed under the QSO. Therefore, while all admissible evidence must be relevant, not all relevant evidence is admissible. The QSO contains detailed provisions governing the admissibility of

evidence to ensure that the court considers only evidence meeting legal standards.

17.The principles of relevance and admissibility under the QSO apply equally to documents, but their proof is subject to additional requirements. Article 72 mandates that primary evidence, meaning the original document itself, must be presented unless secondary evidence is admissible under Article 76. Once a document is produced, its execution must be proved under Article 78 through the testimony of the executor or an attesting witness. If direct evidence is unavailable, circumstantial evidence may be adduced. Expert opinions under Article 59 or testimony from someone familiar with the handwriting under Article 61 may also be relied upon. Importantly, Article 84 empowers the court to compare disputed handwriting or signatures with admitted specimens.

18.Public documents may be proved in accordance with Articles 88 and 89 and benefit from the presumptions under Articles 90 to 101. However, the presumption of authenticity under Article 92 is limited to their existence and issuance, not the truth of the facts stated within them. Certified copies merely confirm the existence and genuineness of the original but do not establish the accuracy of their contents. When public documents are disputed, such as in cases involving allegations of fraud or forgery, they lose their status as public documents under Article 85(2) and must be treated as private documents under Article 85(5). Private documents require stricter authentication, requiring proof of both execution and contents in accordance with Articles 72 to 84 of the QSO.

19.The distinction between production and proof of documents is critical. Production, governed by procedural rules like Order XIII Rule 1 CPC, refers to the physical act of presenting a document in court. Proof, however, involves establishing the document’s authenticity, authorship, and contents under the QSO. Secondary evidence is admissible only when primary evidence cannot be produced, and its admissibility depends on strict compliance with the prescribed evidentiary rules.

20.Once a fact crosses the threshold of “relevancy”, “admissibility”, and “proof”, as mandated under the provisions of the

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QSO, its evidentiary value is determined by the trial court. Unlike admissibility, which is governed by fixed legal standards, the probative worth of a piece of evidence is evaluated based on the peculiar facts of each case, guided by logic, experience, and common sense.1

21.Introducing a document as evidence is a substantive act that requires a party or witness to testify under oath about its origin, relevance, and significance. Even public documents, which benefit from simplified proof requirements, must be connected to the facts in issue through appropriate testimony. Courts cannot consider documents brought on record that are not duly exhibited through proper witnesses.2 In Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172), the courts below had confirmed a purported allotment based on extracts from the record of rights, an NOC from the Forest Department, a letter by the Solicitor to the Provincial Government, and another from the Minister for Forestry, Wildlife, and Fisheries. However, these documents were neither brought on record in conformity with the QSO nor proved in accordance with Articles 2 and 78. Key questions were left unanswered, such as who prepared and signed the extracts, issued and countersigned the NOC, or dispatched the Solicitor’s and Minister’s letters. The Supreme Court of Pakistan ruled that merely bringing papers on record cannot substitute for proving them as required by law. It emphasized that procedural and evidentiary safeguards are fundamental to determining the validity of documents. The Supreme Court further held that the provisions governing the mode of proof cannot be disregarded or bypassed. The court must first determine whether a document has been properly proved in accordance with the law before relying on it and rendering judgment on its basis.

22.In Akhtar Sultana v. Major (Retd) Muzaffar Khan Malik (through his legal heirs) and others (PLD 2021 SC 715), a certified copy of the disputed power of attorney was tendered in evidence in the Akhtar Sultana v. Major (Retd) Muzaffar Khan Malik (through his legal heirs) and others

(PLD 2021 SC 715).

Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 SC 604), Inspector-General of Police, Balochistan, and others v. Ghulam Rasool (2012 CLC 1645), Abdullah v. Provincial Government and others (2014 CLC 285); and Azhar Abbas and others v. Haji Tahir Abbas and another (2021 CLC 1351).

statement of the Registry Moharrar, which was placed on record subject to an objection by the opposite party. The person nominated as attorney under that instrument baldly stated that he had lost the original deed but failed to provide details of when or how it was lost. The Supreme Court held that without proof of the loss of the original document, as required under Article 76(c) of the QSO, the certified copy could not be admitted as secondary evidence. It was argued that the Power of Attorney, being a registered document, was a “public document” under Article 85(2) and could be proved through its certified copy as secondary evidence under Article 88. The Court rejected this plea, clarifying that once the execution of a registered document is disputed, alleging forgery or fraud, it loses its status as a “public document” and becomes a “private document” under Article 85(5). In such cases, the document must be proved in accordance with the evidentiary standards for private documents.

23.The role of counsel in producing documents is limited to filing and presenting them on behalf of the party, as permitted under Order XIII CPC, but these must be proved through witnesses or other means prescribed by law. Counsel cannot tender documents in evidence through their own statements because their role is essentially that of a legal representative. The QSO does not grant counsel the authority to personally authenticate documents unless they are a witness, which is rare and discouraged due to potential conflicts of interest. In Manzoor Hussain v. Misri Khan (PLD 2020 SC 749), an appeal arising from a pre-emption suit, copies of the acknowledgment receipt, Aks Shajra Kishtwar, registered post receipt, mutation, and Jamabandi were produced and exhibited by the pre-emptor’s counsel, but without him testifying. The Supreme Court deprecated the practice of counsel tendering documents without taking an oath or being subject to cross- examination, emphasizing that they must be adduced and proved through competent witnesses capable of authenticating them. However, exceptions exist for facts that do not require proof – specifically, those of which the court takes judicial notice and those that are formally admitted. The relevant excerpt is reproduced below:

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“We have noted that copies of documents, having no concern with counsel, are often tendered in evidence through a simple statement of counsel but without administering an oath to him and without him testifying, especially in the province of Punjab. Ordinarily, documents are produced through a witness who testifies on oath and who may be cross-examined by the other side. However, there are exceptions with regard to facts which need not be proved; these are those which the court will take judicial notice under Article 111 of the Qanun-e- Shahadat Order, 1984 and are mentioned in Article 112, and facts which are admitted (Article 113, Qanun-e-Shahadat Order, 1984).”3

24.In Muhammad Nawaz v. Shahida Parveen (PLD 2017 Islamabad 375), the petitioner claimed in his suit that he had paid all allotment expenses and dues for the disputed plot. However, when he appeared as a witness, he failed to produce a single receipt. Later, after the conclusion of his evidence, his counsel submitted copies of the receipts before the trial court through his statement. The Islamabad High Court held:

“31. In certain circumstances, the counsel for either party may produce documents that are certified copies of public or judicial record. Documents cannot be produced by the counsel for a party in order to plug the loopholes or to address the deficiencies in such party’s evidence. In the case of BABAP Enterprises v. United Bank Limited (2011 CLC 1534), the Hon’ble Lahore High Court held that documents that could be exhibited or tendered in evidence by a witness could not be exhibited in the statement of the counsel for a party. The statement of the counsel is not on oath and he is not cross- examined by the opposing party on the veracity and evidentiary value of the documents so tendered. In the case of Muhammad Ashraf v. Shah Noor Khan (1996 MLD 1819), it has been held inter-alia that documents which were required to be proved in accordance with the provisions of the Qanun-e-Shahadat Order, 1984, could not be tendered in evidence through a bare statement of the counsel for a party and got exhibited even if there was no objection from the other side.”

25.The power of attorney (Wakalatnama) executed by a party in favour of their counsel typically contains a clause allowing him “to sign and file petitions, statements, accounts, exhibits, compromises, or other documents whatsoever.” Such a clause cannot be interpreted to mean that the counsel has the authority to tender disputed documents in evidence through their own statement. Such an interpretation would conflict with established procedural and evidentiary principles under the QSO and the CPC.

Also see: Rustam and others v. Jehangir (Deceased) through LRs. (2023 SCMR 730), Muhammad Hussain and another v. Province of Punjab through District Officer Revenue, Multan and others (2021 YLR 2310), Mst. Rasoolan Bibi v. Province of Punjab and others (2023 CLC 1171), National Highway Authority through Director v. Bashiran Bibi and others (2024 MLD 1590).

26.Article 1(2) of the QSO states that the Order applies to all judicial proceedings in or before any court, including a court-martial, a tribunal, or other authority exercising judicial or quasi-judicial powers or jurisdiction, but does not apply to proceedings before an arbitrator. In this view of the matter, civil courts, as defined under the Punjab Civil Courts Ordinance 1962, should scrupulously follow the above principles.

27.The Family Courts Act 1964 is a special law enacted for expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith.4 To this end, it has established Family Courts which have exclusive jurisdiction to entertain, hear, and adjudicate upon the matters specified in Part-I of the Schedule of the Act. It lays a special procedure for their adjudication. Section 17(1) of the Act stipulates that, save as expressly provided by or under the Act, the provisions of the QSO and the CPC (except sections 10 and 11) shall not apply to the proceedings before any Family Court in respect of the subjects listed in Part-I of the Schedule. The objective is to streamline the adjudication process and ensure that family disputes are resolved efficiently, free from the constraints of technical procedural and evidentiary requirements.

28.Section 20(1) of the Act deems the Family Court as Judicial Magistrate of First Class under the Code of Criminal Procedure 1898 for taking cognizance and trial of any offence under the Family Courts Act, the Muslim Family Laws Ordinance, 1961 and the Child Marriages Restraint Act, 1929. Section 20(2) stipulates that a Family Court shall conduct the trial of the aforesaid offences in accordance with the provisions of Chapter XXII of the Code Criminal Procedure 1898, which pertains to summary trials. While section 17(1) of the Act excludes the application of the QSO in matters listed under Part-I of the Schedule to the Act, this exclusion does not extend to criminal proceedings for offences outlined in Part-II of the Schedule.5

29.Even though section 17(1) of the Act bars the direct application of the CPC and QSO in Family Court proceedings, their Preamble of the Family Courts Act, 1964.

Muhammad Nazir v. Additional District Judge and others (2023 YLR 2140).

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general principles may be invoked for the proper administration of justice when no special procedure is provided in the Act.6 A Family Court can settle matrimonial disputes by employing or adopting any procedure not expressly barred or prohibited by law.7 It can draw and follow its own procedure provided that it is not against the principles of fair hearing and the trial,8 as the Act does not provide for every conceivable eventuality.9 Proceedings in the Family Court, whether as a trial court or an executing court, are governed by the general principles of equity, justice, and fair play.10

30.Thus, a Family Court can follow a flexible and liberal procedure while proceeding with a family suit and can exercise all such powers as are not prohibited by the Act. It can adopt an inquisitorial approach, actively investigating facts and guiding proceedings to discover the truth. However, the procedural flexibility granted by section 17(1) of the Act should not compromise the right to a fair trial under Article 10A of the Constitution. In cases involving disputed documents, Family Courts must exercise judicial discretion to determine whether additional authentication is necessary. They may allow counsel to introduce undisputed documents through their statements, but disputed documents – including public records whose recorded facts are contested – must be substantiated through testimony, cross-examination, or other appropriate means. This approach balances fairness with the procedural simplicity intended by the Act.

31.In the present case, the Petitioner has filed a suit for the jactitation of marriage against Respondent No.3, while the latter has instituted a suit for dissolution of marriage against the former. The Ghulam Murtaza v. Additional District Judge (II) and others (1999 CLC 81), Mehtab Raza v. Additional District Judge and others (2006 YLR 2589) and Mst. Sameena Bibi and others v. Additional District Judge/Appellate Authority and others (2007 CLC 987).

Amjad Ali and another v. Mst. Samara Yasmeen and others (2012 MLD 14), Farzana Rasool and others v. Dr. Muhammad Bashir and others (2011 SCMR 1361).

Farzana Rasool and others v. Dr. Muhammad Bashir and others (2011 SCMR 1361), Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others (2014 SCMR 1365) and Lt. Col. Nasir Malik v. Additional District Judge, Lahore and others

(2016 SCMR 1821).

Mirza Shahid Baig v. Lubna Riaz and others (2004 CLC 1545), Abdul Rasheed v. Judge Family Court, Mian Channu and another (2010 CLC 797), Muhammad Sajjad v. Additional District & Sessions Judge and others (PLD 2015 Lahore 405), Ali Akbar v. Additional District Judge, Malakwal and others (PLD 2017 Lahore 787), Syed Muhammad Taqi Raza Naqvi v. Judge Family Court and others (2019 CLC 1261) and Naseer Ahmad v. Sumeyya and another (2021 MLD 420).

Haji Muhammad Nawaz v. Samina Kanwal and others (2017 SCMR 321).

Family Court has consolidated both the suits and is holding the trial jointly. Respondent No.3 specifically mentioned in her suit that she married the Petitioner on 22.04.2001 in the presence of witnesses, and on 12.06.2005, M.B. was born out of wedlock. She also stated that based on that union, she holds CNIC No. 35202-2756524-0 and CRC No. 100814-10-000606454-01 and annexed a photocopy of M.B’s birth certificate with the plaint and, in the form filed under Order VII Rule 14 CPC, stated that she relied upon the record of the Union Council concerned, the Nikah Registrar, and Nikahnama. She also reserved the right to produce additional documents, if required. Then, in the form under Order VII Rule 14 CPC filed with her written statement in the Petitioner’s suit for jactitation of marriage, Respondent No.3 mentioned M.B’s CRC. Besides, she relied upon the records of NADRA, the Union Council concerned, and judicial records of various cases. She also reserved the right to produce additional documents if required.

32.There is no cavil that, subject to the Petitioner’s right of cross-examination, Respondent No.3 could validly produce all four documents in evidence, as they are public documents under Article 85 of the QSO. As discussed, public documents enjoy a presumption of regularity regarding their issuance, but this presumption does not extend to the truth of the facts recorded within them. Since the Petitioner specifically challenged the authenticity of these documents, Respondent No.3’s counsel could not introduce them solely through his own statement, and that too without taking an oath. Given the dispute, in the circumstances of the instant case, the Family Court should have ensured that their admissibility was properly scrutinized. It should have required Respondent No.3 to tender them herself or through a competent witness who could testify under oath and should have afforded the Petitioner an opportunity to cross-examine the witness.

Disposition

33.The Family Court’s order dated 11.7.2023 and the Additional District Judge’s judgment dated 13.10.2023 are unsustainable. Hence, they are set aside. The documents Exh. D-4 to Exh. D-7 are de-exhibited, subject to the following conditions:

i)Respondent No.3 may, if so advised, make an application before the Family Court for her re-examination and tender the subject documents in evidence. She may also seek the summoning of additional witnesses to testify regarding the documents.

ii)The Petitioner shall have the right to cross-examine Respondent No.3 and other witnesses she may produce and challenge the documents’ admissibility/authenticity.

iii)The Family Court is directed to decide these applications, if filed, in accordance with the law, ensuring fairness and justice between the parties.

34.This case presents a critical issue: if the Petitioner’s suit for the jactitation of marriage is decreed, it would effectively negate Respondent No.3’s claim of marriage and, by implication, cast doubt on M.B.’s paternity. While the Family Court has exclusive jurisdiction over matters listed in Part-I of the Schedule to the Act, the question of paternity – fundamentally involving the determination of a child’s legitimate lineage – falls within the jurisdiction of a civil court11 due to its evidentiary complexity and broader legal implications.

35.A decree for the jactitation of marriage does not automatically render a child illegitimate, and the presumption of legitimacy remains intact unless rebutted by proper evidence. If a paternity suit had been pending before a civil court, the Family Court’s best course would have been to stay proceedings in both suits until the civil court rendered its decision. However, this option is unavailable. The second alternative is that the Family Court seek the parties’ consent to stay proceedings until the Petitioner approaches the civil court for adjudication of M.B.’s paternity. Notably, Respondent No.3 previously filed a civil suit on 27.01.2015 but withdrew it on 11.11.2017, and under Order XXIII Rule 1(3) CPC, she is precluded from refiling a suit on the same cause of action. If the parties do not consent or the Petitioner fails to initiate such proceedings within a stipulated period, the Family Court shall proceed with the consolidated suits, deciding only on the jactitation of marriage and dissolution, without making any findings on paternity. It is pertinent to point out that M.B. is not a party to any suit before the Family Court. Hence, any decree issued cannot bind him regarding paternity.

Iftikhar Hussain and another v. Muhammad Aslam and others (1991 MLD 1500), and Kishwar Parveen and others v. District Judge, Gujrat and others (PLD 2016 Lahore 536).

36.This petition is decided in the above terms.

(Tariq Saleem Sheikh) Judge

Announced in open court on _______________ Judge

Naeem

Approved for reporting

Judge