MUHAMMAD AFZAL ZULLAH, C.J.---Leave to appeal has been sought against the dismissal by the High Court of petitioner's Civil Revision. The respondent had filed a suit disputing the petitioner's claim that he had been betrothed with her for marriage. The suit was dismissed by the trial Court but in appeal it was decreed. The petitioner's Civil Revision in the High Court against the appellate order, having been dismissed he has now sought leave to appeal.
Learned counsel has stated that in a counter-suit filed by the petitioner he had claimed that the relationship between the parties was not only of betrothal but of marriage. He had also sought restitution of conjugal rights. Learned counsel informed us that this suit stands finally dismissed by a separate revisional order passed by the High Court against him in the said matter.
2. In fact the perusal of that order passed by a learned High Court Judge who also rendered impugned judgment in this case, shows that the petitioner's case also was that the respondent had been betrothed to her and that her father was bound by agreement of betrothal to arrange her marriage with the petitioner. His effort in the said revisional proceedings to show that the betrothal had matured into marriage, was not accepted. In regard to the betrothal the learned Judge has observed as follows:-- "This can at best be termed as negotiation for ultimate decision to marry but cannot be equated with contract. It is pertinent to mention here that Mst. Razma is hardly eleven years of age as clearly indicated from her statement recorded in the Court. Obviously contract presupposes consent for consideration of dower in presence of two adult witnesses. This aspect is conspicuously missing in instant case. Petitioner's own case is of betrothal as disclosed from his statement and other evidence adduced by him.
Accordingly, the petitioner's Revision in his suit failed.
In the present case the learned Judge observed that the petitioner's effort to secure the hand of the respondent having finally failed in the above--mentioned other revisional proceedings, there was nothing left in his revision in the present case, accordingly, it was dismissed.
However, when dismissing his revision and rightly so in view of what had been stated in the other revisional order, the learned Judge also made the following observation:-- "It is well-settled that mere betrothal (Mangani) does not constitute any ` valid contract. This is generally customary arrangement arrived at between relations of parties with a view to entering into contract of marriage. It being pre-nuptial negotiations does not create any civil right. Factually civil proceedings initiated by respondent were not even required. However, on account of decision already announced in Revision Petition No.217 of 1990 present petition even otherwise has become infructuous."
3. Learned counsel taking clue from the above-quoted observation stated that the respondent having no `civil right' the suit was not competently filed by the respondent. Section 9 of the C.P.C.
According to him did not permit it.
With respect to the learned Judge he did not notice the distinction between the claim of a would be husband for the hand of an unmarried Muslim girl on the basis of a betrothal and the denial of alleged betrothal or promise of marriage made by or on behalf of such a female and.
Consequential suit filed by her so as to obtain a decree for the avoidance of such a claim by a male In the former case there being no contract of marriage the male would not be able to enforce any agreement in the form of Mangani, for future marriage; as it would contravene with a very vital rule which is the basis of contract of marriage; namely, that it cannot be a valid marriage unless the parties have freely agreed to it at the time of marriage. This contract cannot be complete and enforceable unless free consent is expressed and that too with several other conditions including those of the presence of witnesses and the dower. Thus the dismissal of the suit of the respondent being for valid reasons is unexceptionable.
4. It may be mentioned here that in most of the betrothal agreements in our society the parents or other elders do so on behalf of the two persons who are intended to be united in the wedlock of marriage in future. To bind a girl with such an agreement in the nature of betrothal in such a manner that she should be compelled to give her consent at the time of marriage or for that matter that a decree for conjugal rights or for a direction for marriage be passed against a female in the above circumstances is unimaginable. The whole fabric of Islamic Law and jurisprudence on this subject is against such a notion. The lady remains free to give or to withhold consent for marriage till the moment when marriage contract takes place. There should be no doubt about it, Coming to the observations made in the impugned judgment of the High Court that the betrothal agreement is generally customary and is also generally arrived at between the relations of the parties with a view to enter into future contract of marriage, therefore, it does not create any civil right, is correct in so far as the claim of the male (in the present case also) for forcing the female to enter into a marriage is concerned. He has no such right: However, his. Insistence that she is betrothed to him and making claim about, it (if denied by the respondent female) creates two civil, rights amongst others, in her favour. One, that while she is entitled to be known as unattached lady, the claim of the petitioner would put her under a label of attached lady through a betrothal. `Her chance, sphere and scope for absolutely free choice for marriage. Would be absolutely restricted.
What to talk of our society it even so happens in the Western society. Therefore, the claim of the petitioner acts as a clog on the future opportunity of freedom of contract of marriage in so far as this opportunity and right belong to the respondent female, hence she could and did maintain rightly a suit for stopping the petitioner from making the claim of betrothal with the petitioner. The other right is a corollary from the first mentioned right to undiluted reputation. For example, if the betrothal is claimed to be with the consent of the female or in a more liberal context if it is claimed to be directly between the male and the female for future contract of manage, she would suffer a reputation of having attached herself voluntarily with a male so as to enter into future marriage.
Depending upon social conditions of the two sides it can cause harm to her reputation in some areas of our social sector immensely. Therefore; such a claim depending upon the circumstances of each case also affects right of the female respondent to normal good reputation in the context of her own social conditions. We, therefore, with respect do not agree with the learned Judge of the High Court that the respondent had no enforceable civil right.
5. With these remarks judgment of dismissal of petitioner's Civil Revision by the High Court is upheld and leave to appeal is refused.