This is an appeal to assail the judgment and decree of Family Judge, Muzaffarabad; dated 29-4- 1998 whereby two suits one for restitution of conjugal rights and other for declaration of a Nikahnama, dated 23-2-1997 as a fake document were dismissed by the said Court and a decree in a cross-suit for restitution of conjugal rights by the respondent Liaqat Hussain was passed in his favour.
3. The facts forming the background of the present appeal are that the respondent Liaqat Hussain filed' a suit against Mst. Saleema Bibi, Muhammad Shafi and some other persons in the Court of Family Judge, Muzaffarabad on 17-3-1997. It was alleged in the suit that Saleema Bibi was his legally-wedded were on account of a Nikah which took place on 23-2-1997 in lieu of a dower amount Rs. Thirty thousand. The trial Court after institution of the suit, summoned the appellant and other persons arrayed as defendants in the suit. Mst. Saleema Bibi, Muhammad Shafi and other persons arrayed as defendants in the suit of Liaqat Hussain filed their written statements on 2-4-1997. The defendants Muhammad Shafi and others through their written statements denied all the allegations made by the respondent/plaintiff Liaqat Hussain in his plaint. It was also claimed by the defendant Muhammad Shafi and Mst. Saleema Bibi that in fact they were the legally-wedded spouses on account of a Nikah contracted in between them on 26-2-1997.
4. Muhammad Shafi also filed two suits before the trial Court. The aforesaid person instituted a suit on 12-5-1997 to declare the Nikahnama, dated 23-2-1997 as a fake document. Another suit was filed by the same person on 21=5-1997 against Saleema Bibi and Liaqat Hussain alongwith some other persons for restitution of conjugal rights.
5. The respondent Liaqat Hussain and others contested these suits and filed their written statements in the Court. Their claim was that Saleema Bibi and Liaqat Hussain were legally- wedded spouses and the Nikahnama, dated 26-2-1997 was result of coercion.
6. The trial Court consolidated all the three suits and before framing the issues an attempt for reconciliation was made in accordance with law, failing which the necessary issues were framed and Liaqat Hussain plaintiff-respondent was directed to produce evidence in support of his claim.
The aforesaid person in order to support his claim appeared himself as witness in the Court and produced Qazi Abdul Jaleel Shah, Abdul Hamid, Muhammad Yameen, Sh. Naseebud Din and Umer Suleman as witnesses. The trial Court after closing the evidence on the part of Liaqat Hussain, ordered Muhammad Shafi to lead evidence in support of his claim. Muhammad Shafi produced Maulvi Abdur Raoof, Gul Majeed Khan, Gul Khan, Ghulam Jan, Muhammad Siddique and Qamer Ali (father of Mst. Saleema Bibi) and appeared himself as witness in the Court. An attested copy of the statement of Saleema Bibi before the High Court of Azad Jammu and Kashmir was also tendered in evidence. Mst. Saleema Bibi also appeared before the trial Court as witness.
7. The trial Court after recording the evidence, made a second attempt to reconcile the matter but the parties did not respond positively. Therefore, the trial Court after hearing the arguments decided the cases on merits and dismissed the suits of Muhammad Shafi and decreed the suit filed by Liaqat Hussain for restitution of conjugal rights.
8. The present appellant feeling aggrieved by the judgment and decree of the trial Court filed an appeal before this Court and his appeal was accepted and the case was remanded to the trial Court to decide afresh.
9. The trial Court, after receiving back the file, again decided the case by dismissing the suits filed by Muhammad Shafi and passing a decree for restitution of conjugal rights in favour of Liaqat Hussain respondent through its judgment and decree, dated 29-4-1998. It is the aforesaid judgment and decree which is now under challenge through the above titled appeal.
10. The learned counsel for the appellant while challenging the impugned judgment and decree conducted that the trial Court fell in error while deciding the cases between the parties. According to the learned counsel, the impugned judgment and decree was the result of misreading and non- reading of evidence on record. It was submitted that Nikahnama, dated 26-2-1997 was proved in accordance with law whereas it was also proved that Nikahnama, dated 23-2-1997 was result of a fabricated story. The learned counsel further argued that the trial Court laid a great emphasis on the statement of Mst. Saleema Bibi and overlooked all other evidence on record. According to the learned counsel, Mst. Saleema Bibi had been changing her version during the trial of the case and as such her statement was not trustworthy.
11. As "against this, it was argued on behalf of the respondents that the impugned judgment and decree was passed in accordance with law by appreciating the evidence on record in its true perspective and no illegality was committed by the trial Court and the suits filed by Muhammad Shafi appellant were rightly dismissed by the said Court.
12. After hearing the arguments of the learned counsel for the parties, I examined the record of the case with care and caution.
13. It is correct that the trial Court laid much emphasis on the statement of Mst. Saleema Bibi and perhaps it is the statement made by her in the Court which resulted into impugned judgment and decree.
14. The respondent Mst. Saleema Bibi while submitting her written statement on 2-4-1997 before the trial Court in response to the suit filed by respondent Liaqat Hussain did not admit her Nikah with Liaqat Hussain and owned Muhammad Shafi as her husband. She also made another statement before the High Court of Azad Jammu and Kashmir on 13-3-1997 stating therein that she was legally-wedded were of Muhammad Shafi and the respondent Liaqat Hussain was having no concern whatsoever with her. An attested copy of her statement Exh.D.B. Is on the file of the trial Court but in her statement as witness before the trial Court on 16-7-1997 she changed her version and stated otherwise. While in the witness-box, she owned Mr. Liaqat Hussain as her husband and did not admit her Nikah with Muhammad Shafi appellant. It was stated by her that the Nikah, dated 26-2-1997 was the result of coercion as such it was not a valid Nikah. Therefore, it is clear that the aforesaid girl had been changing her version from time to time. As there are two claimants of Saleema Bibi and she at one time favours one claimant and at the other supports the version of the other, so the controversy as to whom she was married in accordance with Islamic Law can only be resolved by having a resort to the restof the evidence on record.
15. Before discussing the evidence on record, it looks proper to see as to what are essentials of a valid marriage in a Muslim Society. It is an offer and acceptance by or on behalf of two sane Muslim adults of opposite sex in presence of witnesses to marry each other. It means that a male and female being Muslim if want to marry, they shall enter into contract through offer and acceptance in presence of witnesses. Moreover, an offer and acceptance is permissible through a Wakeel by the female if she does not want to appear in the 8 assembly. Dower is also a necessary concomitant of a contract of marriage.
16. One thing is clear that in a Muslim Society a marriage is not valid unless the same is contracted in presence of witnesses. It has got a logic behind I it otherwise different complications may arise in a Muslim Society.
17. As earlier stated Muhammad Shaft appellant and Liaqat Hussain respondent are two claimants of Mst. Saleema Bibi. Both the persons have placed their Nikahnama on fas. The Nikahnama of Muhammad Shaft shows his wed-lock with Mst. Saleema Bibi on 26-2-1997 whereas the Nikahnama produced by Liaqat Hussain reveals the date of marriage in between Mst. Saleema Bibi and Liaqat Hussain as 23-2-1997. The persons claimed their respective wed-lock as genuine and the respondent Mst. Saleema Bibi at one time admitted her Nikah with Muhammad Shafi as correct and on other occasion she accepted the claim of Mr. Liaqat Hussain. The claim of Liaqat Hussain is that Nikah of Mst. Saleema Bibi with Muhammad Shafi is the result of coercion whereas Muhammad Shaft claims his Nikah with the aforesaid girl as genuine one.
18. Now let us first see as to whether or not the alleged Nikah between Liaqat Hussain and Mst.
Saleema Bibi is proved in the light of the evidence produced by him during the trial of the case. The respondent Liaqat Hussain produced Qazi Abdul Jaleel Shah, Abdul Hamid, Muhammad Yameen, Sk. Naseeb-ud-Din and Umer Suleman as his witnesses and he himself appeared before the trial Court as witness. All the witnesses on behalf of the respondent Liaqat Hussain while recording their statements admitted that the identity of Mst. Saleema Bibi was not known to them at the time of wed-lock and some of them were even not knowing her at the time of their statements in the trial Court. All the witnesses produced by Liaqat Hussain are in agreement that two persons namely Abdur Rashid son of Muhammad Star and Jalal Khurshid son of Noor Muhammad were nominated to visit "Zanankhana" where Mst. Saleema Bibi was sitting amongst the other ladies in order to convey the offer of Liaqat Hussain to her for wed-lock in lieu of a dower of Rs. Thirty thousand as consideration. The aforesaid person according to the evidence were also asked to convey the response of Mst. Saleema Bibi after visiting her in "Zanankhana". It is important to note here that these two persons namely Jalal Khurshid and Abdur Rashid were not produced as witnesses before the trial Court. The reported Nikah ceremony between Liaqat Hussain and Mst. Saleema Bibi was performe1 at Tariqabad (Muzaffarabad) a vicinity other than that of the parent of Mst. Saleema Bibi.
19. According to the statement of witnesses Mr. Israeel Shahker brother-in--la",Nof Mst. Saleema Bibi was appointed by her as Wakeel to declare her consent to wed-lock in the assembly. Leaving aside the fact that he qualifies himself to be a Wakeel or not as he is not within the prohibited degree to Mst. Saleema Bibi, he himself did not appear before the trial Court to testify the fact of her consent to wed-lock with Liaqat Hussain. According to the appellant, Mr. Israeel Shahker is a police employee and it is he who fabricated the false story of Nikah of Mst. Saleema Bibi with his brother Liaqat Hussain. It is also the case of the appellant that Saleema Bibi changed the version on account of his influence otherwise she contracted her marriage with the appellant out of her .
Free will and consent on 26-2-1997. It is Mr. Israeel Shahker who being inimical to the appellant and his father-in-law prepared a fake Nikah on 23-2-1997 by managing so-called witnesses.
20. As stated in the earlier part of the judgment that Qazi Jaleel Shah did not know Mst. Saleema Bibi at the time of wed-lock. According to his statement Jalal Khurshid and Abdur Rashid were deputed to obtain the consent of Mst. Saleema Bibi. Abdul Hamid also did not know Saleema Bibi at the time of Nikah. Muhammad Yameen who appeared before the Court on 24-6-1997 was also unknown to the identity of Saleema Bibi at the time of wed-lock. He even did not see the aforesaid girl at the relevant time. According to his statement he was not knowing the father of Mst. Saleema Bibi at the time of alleged marriage. Another witness Sk. Naseeb-ud-Din produced by Liaqat Hussain was examined by the trial Court and this witness also refused to know Mst. Saleema Bibi at the relevant time. The respondent Liaqat Hussain produced another witness namely Umer Suleman on 24-6-1997 and his statement was recorded by the trial Court. The statement of the aforesaid witness also shows that Saleema Bibi was not known to him at the time of alleged marriage. He did not even see her on 23-2-1997. It is clear from the perusal of the entire evidence produced by Liaqat Hussain that nobody out of the witnesses was known to the identity of Saleema at the relevant time. It is also clear that the presence of Mst. Saleema Bibi at the house of Muhammad Rashid at Tariqabad (Muzaffarabad) was not established. The persons namely: Jalal Khurshid and Abdur Rashid who were deputed to obtain the consent of the aforesaid girl were also not produced before the trial Court. The evidence of the aforesaid persons was very much relevant keeping in view the controversy between the parties. Mr. Israeel Shaker who, according to the version of Liaqat Hussain, was appointed as Wakeel was also not produced before the trial Court to testify the fact of his appointment as Wakeel. Therefore, it is clear from the evidence that neither the presence of iC Saleema Bibi is established at Tariqabad nor her identity was proved through the evidence. The alleged Nikah, dated 23-2-1997 was admittedly contracted at Tariqabad a vicinity other than that of the parents of Saleema Bibi. The presence C of father of the aforesaid girl is also not proved at the house of Muhammad Rashid at Tariqabad. There is no evidence as to whether or not. Saleema Bibi consented to marry Liaqat Hussain.
21. The entire evidence produced by the respondent Liaqat Hussain revolves around the fact that the witnesses put their own signature on the Nikahnama, dated 23-2-1997. This fact by itself does not prove the consent of Mst. Saleema Bibi to marry with Liaqat Hussain. There is nothing to show that whether consent by the said girl was given by her or she put her thumb---impression in presence of some witnesses. To prove the execution of the document it was necessary to lead the evidence to testify the fact that the executant (Mst. Saleema Bibi) put her thumb-impression out of her free will and consent in presence of Witnesses. The witnesses only speak of to put their own signature on the Nikahnama, dated 23-2-1997 whereas the execution of the said document could only be proved by producing the witnesses in whose presence Mst. Saleema Bibi put her thumb- marks on the said document. The evidence of all the witnesses say nothing except to depose the fact of putting their own signature on the so-called Nikahnama and this kind of evidence do not suggest the validity of the' Nikah between Liaqat Hussain and Mst. Saleema Bibi. Moreover, mere admission by the respondent Mst. Saleema Bibi does not prove the marriage for the reason that the same can be done afterwards out of some compulsions. It was necessary to prove the consent on the part of the said girl prior to execution or at least execution of the document by Saleema Bibi might have been proved. In the instant case neither consent of the girl nor execution of the document is proved in accordance with law: Had there been evidence to show the fact of putting the thumb-impression of the said girl out of her free will in presence of witnesses, then certainly, the position would have been different. The witnesses instead of testifying the thumb-mark of Mst.
Saleema Bibi, affirmed their own signature to be correct. The execution can only be proved under law when the marginal witnesses testify the signature/thumb-impression of the executant.
22. The trial Court relied mainly on the sole statement of Mst. Saleema Bibi. As it is earlier pointed out that she had been changing her stand from time to time. Therefore, the statement of such-like girl is not trustworthy and cannot be formed as basis for her wed-lock with Liaqat Hussain. The marriage in Muslim Society is only valid when it is proved to have been contracted in presence of witnesses. The respondent Liaqat Hussain, thus, failed to establish his case through the evidence on record. Therefore, the Nikahnama, dated 23-2-1997 is not proved in the light of the evidence on record.
23. Now the next question arises as to whether or not Muhammad Shafi succeeded to prove his marriage with Saleema Bibi. Muhammad Shafi produced Maulvi Abdur Rauf who is an old man of 65 years old and he is the person who recited the Nikah in between Mst. Saleema Bibi and Muhammad Shaft on 26-2-1997. This witness is the "Nikah Khawan" of the vicinity. According to the statement of this witness the Nikah in between the spouses was contracted out of their free will and consent on the aforesaid date in presence of witnesses. This witness was fully cross-examined by the opposite party but there was nothing on record to discredit his testimony. Saleema Bibi was personally known to him at the time of wed-lock. It is also on record that the Nikah, dated 26-2- 1997 was celebrated at the house of the parents of Mst. Saleema Bibi and her father Qamer Ali was appointed as Wali to obtain the consent of Saleema Bibi at the relevant time. Raja Gul Majeed Khan also corroborated the statement of Maulvi Abdur Raoof, Nikahkhawan while recording his statement before the trial Court on 9-7-1997. Two other witnesses Gul Khan and Ghulam Jan in whose presence Saleema Bibi gave her consent to marry Muhammad Shaft and appointed her father Qamer Ali as her Wakeel were also produced before the trial Court, who corroborated the version taken by Muhammad Shafi. Saleema Bibi also made a volunteer statement before the High Court of Azad Jammu and Kashmir on 13-3-1997 wherein she admitted her wed-lock with Muhammad Shafi She also submitted her written statement in response to the suit filed b5 Liaqat Hussain wherein she admitted that . She was legally-wedded were of Muhammad Shafi.
The result is that the appeal stands accepted. The judgment and decree, dated 29-4-1997 is set aside. The suits filed by the appellant Muhammad Shafi are decreed and the cross-suit filed by respondent Liaqat Hussain is dismissed. The so-called Nikahnama, dated 23-2-1997 is declared to be a fake document and it is inoperative and ineffective against the rights of Muhammad Shafi and Mst. Saleema Bibi. Mst. Saleema Bibi is the legally-wedded were of Muhammad Shafi. Any interim order by this Court or by the Court below regarding the custody of Mst. Saleema Bibi shall also stand vacated.