1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought in these two petitions, against the dismissal by the High Court, of petitioners' two Civil Revisions. They had arisen out of the challenge by the petitioners to a gift made to the respondent by Amir Abdullah Khan, father of petitioner No,1 and husband of petitioner No,2. The respondent Mst. Anwar Begum has also been held to be a duly wedded wife of said Amir Abdullah Khan.
2. ' All the learned Courts below have held, on the main features of, and the controversies involved in, the case as follows:-
(a) That the respondent was duly wedded wife of Amir Abdullah Khan;
(b) That Amir Abdullah Khan did make a valid and completed gift in her favour;
(c) That the alleged revocation relied upon from petitioners' side was fake; and
(d) That there was no impediment, legal or otherwise in Amir Abdullah Khan's making the gift in respondent's favour and/or the latter accepting the same and exercising due rights thereunder as beneficiary thereof.
3. ' Learned counsel for the petitioners has vehemently contended that the respondent was a dancing girl, her marriage with Amir Abdullah Khan is not established and even if she was wedded wife of Amir Abdullah Khan, he under the Muslim Law could not have made a gift of his property in her favour whether as a concubine or prostitute; that no valid gift was made in favour of the respondent as it remained incomplete because of absence of delivery of possession; that the gift was revoked before the delivery of the alleged possession; and that the finding on the question of revocation by comparison of the signatures/thumb impressions by the Court, could not and should not have been rendered.
4. ' Learned counsel also made reference to the provisions of the Contract Act; Civil Procedure Code; the Registration Act; the Evidence Act and the commentary thereon by Wood Roffe and Amir Ali; Transfer of Property Act; Mulla's Muhammadan Law; as also, PLD 1968 Lah.587, Vol. XXI I.A.56, Vol.XXXVII I.A.105, 51 I.C.624, AIR 1949 P.C. 239, AIR 1947 Bombay 198 and 11 M.I.A.
5. 194." (Petition Para II).
6. ' We have heard the learned counsel at length and have also perused the relevant record.
7. ' The main argument on which the learned counsel for the petitioners laid considerable stress is reproduced below in extenso from the grounds taken in the petition for leave to appeal in that behalf:- "That it is an established principle of Muslim Law that in the absence of direct proof of Nikah, the continual cohabitation will not give rise to presumption of marriage, if the conduct of the parties was inconsistent with the relationship of husband and wife or if the woman was admittedly a dancing girl with questionable antecedents. It is proved on the record that the respondent belongs to a caste other than that of Amir Abdullah Khan; she was a professional dancing girl with little known family background from Lodhipura, a place of ill-repute, in the vicinity of Multan, her Pichlag son Maqbool Hussain PW2, who is also the marginal witness of the impugned gift deed (Ex.P1) does not know even the name of his grandfather and maternal-uncle. The first respondent had never visited the family of Amir Abdullah Khan at Mianwali and even during the alleged visit she stayed in a Dera and not in the family house as a member of the family and she stayed with Amir Abdullah Khan at Multan for the purposes of illicit cohabitation. Whether the learned High Court and the Courts below have no misdirected themselves in law in raising the presumption o marriage,, because of lengthened cohabitation between Ami Abdullah Khan and the respondent, especially when there no issue of the alleged wedlock?" {{PAGE CUTT}} ' In reality the two pleas pressed in support of this petition-one, total absence of marriage tie and revocation thereof, are in the circumstances of this case mutually destructive. The plea of the tot absence of the marriage tie, it seems, has been raised so as to overcome a difficulty vis-a-vis revocation. According to Muslim La a gift made by a husband in favour of the wife is irrevocable. I this case if the petitioners would have succeeded in obtaining verdict regarding absence of marriage tie, only then the plea o revocation in strict legal sense could be pressed.
8. ' The mainstay of the entire contention regarding absence co, marriage tie, seems to be the assumed profession of Mst. Anwa Begum as a prostitute prior to her disputed marriage with Ami Abdullah Khan. It is not the case of the petitioner nor has it been argued before us that a gift could never be made in favour of prostitute. The argument on the other hand is that a prostitut could not be adjudged as a duly wedded wife of a Muslim in absenc of direct evidence of Nikah; because as further contended, the well known presumption of valid marriage on the basis of prolonge cohabitation could not be raised in a case where a prostitute star living with a Muslim male and subsequently alleges marriage on the basis of cohabitation, alone. The presumption regarding Muslim B marriage, in absence of direct proof has been raised and acted upon, in the following instances:-
(a) Prolonged and continuous cohabitation as husband and wife,
(b) The fact of acknowledgement by the man, of the paternity of the children born to the woman, provided all the conditions of a valid acknowledgement are fulfilled; or
(c) The fact of the acknowledgement by the man, of the woman, as his wife.
9. ' There is considerable case-law in support of the above propositions:- ' Khajah Hidayat v. Rai Jan (1884) 3 M.I.A.295, 317-318, 323 (marriage presumed); Muhammad Bauker v. Shurfoon-Nisa (1860) 8 MIA 136, 159 (marriage not presumed); Ashrufood Dowlah v. Hyder Hoseine (1866) 11 M.I.A. 94, 115 (marriage not presumed); Jariut-ool-Butool v. Hossinee Begum (1867)
10. 11 M.I.A. 194,209-210 (marriage not presumed); Maung Kyi v. Mushwe Baw (1929) 7 Rang. 777, 21 I.C.718, ('29) A.R.341 (marriage presumed); Masitun-Nissa v. Pathani, (1904) 26 All. 295 (marriage not presumed); Abdul Halim v. Saadat Ali ('29) A.O. 126, 112 I.C.596, (marriage presumed); Hasan Ali Mirja v. Nashratali Mirja (1935) 62 Cal.L.J. 428, 157 I.C. 1091, ('35) A.C.572 (extension of muta marriage presumed); Ma Khatoon v. (1936) 165 I.C.232, ('36) A.R.448; Mohamed Amin v. Vakil Ahmad ('52)
11. A.S.C.358.
12. ' Immabandi v. Mutsadi (1918) 45 I.A.73, 81-82, 45 Ca1.787, 889-890,47 I.C.513; Habibur Rahman v.
13. Altaf Ali (1921) 48 I.A. 114, 120-121, 48 Ca1.856,60 1.C.837, ('22) A.PC.159; Mohamed Amin v. Vakil Ahmad ('52) A.SC.358.
14. ' Mt. Bashiran v. Muhammad Hussain (1941) 16 Luck 615, (1941) O.W.N.249,193 I.C. 161; ('41) A.0.284; Mohamed Amin v. Vakil Ahmad ('52) A.SC.358.
15. ' It is also well established that the above-referred presumption did not apply if the conduct of the parties had been inconsistent with the relationship of husband and wife. This also has the support of case-law: ' Abdool Razack v. Aga Muhammad (1893) 21 I.A. 56, 65, 21 Ca1.666, 674; Fateh Muhammad v. Abdul Rahman (1931) 12 Lah.396, 134 IC 590, ('31) AL 223 (Where the man had refused to acknowledge the woman as his wife and her child as his child).
16. ' In some cases the presumption of marriage has also not been raised and acted upon when the woman was admittedly a prostitute before she was brought to the man's house. See:- ' Ghazanfar v. Kaniz Fatima (1910) 37 IA 105, 109, 32 All. 345, 350,6 IC 674; Jariut-ool-Butool v.
17. Huseinee Begum (1876) 11 MIA 194.
18. ' In Irshad Ali v. Musammat Kariman (1918) 20 Boni. LR 790, 46 IC 217, ('17) APC 169, the woman was a prostitute, but there was a writing evidencing the marriage, and the marriage was held proved. Vis-a-vis a prostitute the so-called exception has been relied upon by the learned counsel, in order to show that the presumption raised by all the Courts below on the basis of the, (1) acknowledgement by Amir Abdullah Khan regarding Mst. Anwar Begum being his wife; as also the (ii) long cohabitation together as husband and wife were sufficient to establish valid marriage tie. It obviously needs some further discussion. A well-considered judgment of the Lahore High Court in the case of 'Iftikhar Nazir Ahmad Khan and others v. Ghulam Kibria and others'
19. (PLD 1968 Lah.587) has been relied upon. It was observed as follows at page 598:- "According to para.268 of Mulla's Muhammadan Law, presumption in favour of the marriage may arise, in the absence of direct proof of the Nikah, from prolonged and continued co-habitation as husband and wife or the fact of the acknowledgement by the man of the woman as his wife. This presumption, however, does not rise if the conduct of the parties was inconsistent with the relationship of husband and wife or if the woman was admittedly a prostitute before she was brought to be man's house. In Mst. Jariut-ool-Batool v. Mst. Hossinee Begum (11 MIA 194) the facts found were that a Mahomedan cohabited for many years with a Muhammedan woman who had been a prostitute and who lived in his house. At his death she claimed to be his wife, and called witnesses to prove an actual marriage, but which fact she failed to establish. On these findings the Privy Council held that "the Court of last resort could not presume, in such circumstances, that a woman, once a concubine, had, merely by lapse of time and propriety of conduct, become a wife, and that the ordinary legal presumption was that there had been no marriage." Similarly in Ghazanfar Ali Khan v. Kaniz Fatima and another (6 IC 674) the Privy Council has held that "Prolonged cohabitation may give rise to a presumption of marriage, but that presumption is not necessarily a strong one and does not apply where the mother, before she was brought to the father's house, was a prostitute". But in Irshad Ali and others v. Mst. Kariman and others (AIR 1917 P.C.169) the Court further remarked that: "It is not safe to draw the inference, from the evidence as to the girl's original occupation of prostitute, of the humble and even ignorable character of her origin and surroundings that marriage with a person in a good position and prospects was improbable, especially when the husband was undoubtedly under the spell of infatuation for her. It is impossible to measure by standards of probabilities what might have been done in those circumstances of a man to secure for himself permanently and as of right the society of the woman he so greatly desired". This last mentioned case is distinguishable. The woman was a prostitute, but there was a writing evidencing the marriage which was found to have been proved.
20. Even otherwise the presumption of a valid marriage may not be possible in favour of the fifth wife.
21. For the reasons discussed above I cannot uphold the finding by the trial Court, on issue No,3, to the effect that Mst. Khurshid Begum defendant No,8 was proved to be the legally-wedded wife of Raja Ghulam Rasul. In my opinion she has failed to discharge the onus resting on her to establish that she was the lawfully-wedded wife of the deceased. It is noteworthy that the trial Court excluded her from the inheritance on the ground that she was the fifth wife of the deceased and her marriage with him was irregular. She did not file any appeal against this decision. Throughout, her only role has been to lend support to the suit of the plaintiffs."
22. ' It would be obvious from the above observations that on facts the Lahore case is entirely distinguishable. Furthermore it would be clear that the Privy Council view on the subject of presumption in question, in cases of prostitutes' marriages, was itself conflicting from time to time.
23. In the last mentioned case of Irshad Ali the presumption in favour of a prostitute's marriage was not nullified for good reasons. Learned counsel also relied on an Allahabad case "Mst. Shabban Bibi v. Babu Khaliq Shah and another (1919) 51 I.C. 624 which does not advance the petitioner's case beyond, what the Privy Council held in the earlier referred cases. A careful survey of the' case-law has led us to hold that no hard and fast rule can be laid down on the subject of presumption regarding prostitute's marriage when it is sought to be proved by acknowledgement and/or prolonged cohabitation. It will not be correct to say, it needs to be emphasised, that no presumption at all shall be raised in cases of prostitutes. On the other hand it seems just and proper to hold that a presumption could be raised but it would remain rebuttable. This approach to the controversy raised by the learned counsel before the Court is not only desirable but also necessary. The cases cited at the Bar or otherwise noticed, have dealt with only one side of the human nature-- the bad one. It ignores another side which is important so as to give a balanced treatment to the subject; namely, the good side of human nature together with element of Touba The detailed analysis made of cases, has shown that all prostitutes do not adopt and/ or continue this old profession, hated in our society, out of lust including that for riches. A large majority of them are compelled to adopt it on account of social conditions, mishaps in childhood including broken homes, cruelty of criminals and other similar causes. Out of this and other category it would not be wrong to assume that the repentant and considerable others would be eager to get out of the profession so as to live a respectable life. Accordingly when once she is able to prevail upon a man to take her to his house it would be natural for her to compel him to marry her by whatever means and methods.
24. ' Therefore, while the learned Judges examined the bad side of the picture and reached one conclusion if the other side would have been examined, the said conclusion might have been neutralised and the presumption based on acknowledgement/cohabitation or other similar circumstances would not have been disturbed.
25. ' For yet another reason we have not been able to agree with the unqualified view expressed in some of these judgments regarding the presumption in cases of prostitutes. It relates to some mandates in our Constitution. They were obviously not examined-- nor were before the Courts whose decisions have been relied upon by the learned counsel. It is provided in Chapter 2 of Part I of the Constitution under the subject-heading Principles of Policy in Article 35 that, "The State shall protect the marriage, the family, the mother and the child".
26. ' It is not necessary to elaborate this mandate. There will be many occasions arising before the Courts when better and new light would be shed on this mandate. For the present case it would suffice to say that Command to "protect the marriage" would certainly also protect a rebuttable presumption based on acknowledgement/long cohabitation relied upon by the Courts, for a very long time. It would, therefore, continue for this additional ground also, regardless of the departure made by some Privy Council and other judgments, noticed above. While interpreting this Command in Article 35 aid from the fundamental right of equality of Citizens (Article 25) could also be sought. Discrimination on the basis of sex alone has been prohibited by the Constitution.
27. Together with this the State has been commanded to make special provision for the protection of women and children. It would be in aid of these mandates if the said presumption is allowed to stay. The fundamental right regarding inviolability of dignity of man (Article 14) would also be of some help in individual cases relating to general subject under discussion though it is not attracted to the facts and circumstances of the present case.
28. ' In the light of foregoing discussion the argument raised by the learned counsel is repelled. On merits the presumption of marriage based on: due acknowledgement by Amir Abdullah Khan on more than one occasions, long cohabitation as wedded couple; as also the circumstance that even before the formal marriage he had announced that he was going to marry the respondent; together with, similar host of other circumstances, fully justify the finding on a very strong presumption of valid marriage between the two. The petitioners have failed to rebut the same.
29. Accordingly no justification has been made out to interfere with the concurrent findings rendered by the learned Courts below that Amir Abdullah Khan deceased and Mst. Anwar Begum were lawfully wedded in a marriage tie. Regarding revocation of marriage tie suffices it to observe that the findings by, the learned Courts below regarding failure of the petitioners to prove the revocation are unexceptionable.
30. ' In view of what has been held above, it is no more necessary to examine the contention of the learned counsel that the gift in question was in implementation of agreement to advance immoral purposes. Therefore, for the same reasons it is not necessary to examine the case relied upon by him in this behalf, namely, "Istak Kamu Musalman v. Ranchod Zipru Bhate and others" (A.I.R. 1947)
31. Bombay 198), with reference to provisions of Transfer of Property Act and the Contract Act. They are not attracted to this case. The evidence regarding delivery of possession criticised by the learned counsel is also; as found by the learned lower Courts, reliable. It came amongst others from the most relevant sources, namely, tenants. The argument of the learned counsel that they were won over witnesses is not tenable. The findings of the learned lower Courts, in this behalf, are also unexceptionable. The technical argument of the learned counsel regarding examination by the Courts below of the signatures of the donor or the thumb-impression of the donee, also relates to findings of which, as already held in respect of other factual controversy, correctly been rendered against the petitioners.
32. ' In the light of the foregoing discussion we find no merit in these petitions, the same, accordingly, are dismissed.