' These Constitutional petitions (Writ Petitions Nos.441 of 1999 and 442 of 1999) arise out of two suits, one jactitation of marriage and the other for restitution of conjugal rights.
2. Petitioner Mst. Azra Bibi filed a suit for jactitation of marriage, claiming that she was married to Allah Bakhsh son of Shahra on 27-9-1993 in accordance with tenants of Islamic law which marriage was duly registered, as per requirement of Muslim Family Laws Ordinance, 1961 and that respondent No,1 Muhammad Aslam, by involving her husband in a false criminal case, got arrest of the petitioner and her husband and in the custody of the police, forcefully obtained to be a Nikahnama and on the basis thereof respondent started claiming marriage with the petitioner though in point of fact she was never married to respondent No,1.
3. Respondent No,1 contested the suit of the petitioner and also filed a suit for restitution of conjugal rights.
4 The two suits were consolidated by the learned Judge, Family Court, consolidated evidence was recorded and vide judgment, dated 5-5-1998 suit for jactitation of marriage was dismissed while the suit for restitution of conjugal rights was decreed. Appeals filed by the petitioner met the same fate vide judgment, dated 8-12-1998 of the learned Additional District Judge, Multan.
5. Learned counsel for the petitioner argued that the marriage of the petitioner with Allah Bakhsh was admitted while the marriage claimed by Muhammad Aslam respondent was disputed and that there was no evidence worthy of consideration to assume marriage between petitioner and respondent No,1 but learned Courts below without examining the evidence in proper perspective declined the relief to the petitioner for extraneous reasoning, ignoring that the petitioner was living with Allah Bakhsh since the marriage with him and that under the law if there were two claimants of marriage the one with whom the wife was living should be considered as a lawful husband.
6. Learned counsel for respondent No,1 defended the impugned judgments and maintained that there was no marriage of petitioner with Allah Bakhsh and that the learned Courts below correctly dismissed the suit of the petitioner.
7. Muhammad Ramzan, father of the petitioner, present in the Court on being asked did not deny that the petitioner was living with Allah Bakhsh since 1993 and that neither he nor any of his sons, witnessed the alleged marriage claimed by Muhammad Aslam (respondent No,1).
8. The submissions made by the learned counsel for the parties have been considered in the light of the material annexed with these petitions.
9. Deeper study of the judgments rendered by the learned Courts below given an impression that the two Courts concentrated more on the marriage of the petitioner with Allah Bakhsh instead of examining the evidence to find out if any marriage had even taken place with respondent No, 1.
Another error committed by the Courts below is reliance on the alleged report of the expert as to the thumb-impressions, little appreciating that the thumb impression was not material as the petitioner had herself stated that the thumb-impressions were obtained on blank papers, forcefully during the police custody when she alongwith her husband was arrested and this was her case that on the basis of such thumb-impressions respondent No,1 had started falsely pretending marriage with the petitioner.
10. The petitioner's suit was that she was never married to respondent No,1 and that she was wife of Allah Bakhsh. On the contrary respondent No,1 was making positive assertion that the petitioner was married to him. It was, thus, a situation where the petitioner was raising a plea which was negative in nature and onus would have discharged, the moment she had appeared in the witness-box and recorded her statement and thereafter it would be for respondent No, 1 to prove the existence of any valid Nikah between the petitioner and Allah Bakhsh was concerned it was an admitted fact. The reasons being that the petitioner throughout stated that she was validly married to Allah Bakhsh. Allah Bakhsh was not a party in these proceedings. This being the position the marriage between petitioner and Allah Bakhsh was admitted fact on the part of petitioner while the alleged marriage between petitioner and respondent No,1 was under a serious dispute. In this background if one examines the controversy, it is observed that the respondent was under a heavy onus to establish that he was validly married to the petitioner.
11. Petitioner did appear in the witness-box as P.W.1 and deposed that she was wife of Allah Bakhsh, her Nikah with Allah Bakhsh was valid, she produced Nikahnama Exh.P.1, admitted her thumb- impression P.1/1 and clearly stated that she was never married to respondent No,l. She was also supported and corroborated by P.W.2 Muhammad Bakhsh son of Sardar. This witness deposed that the father of petitioner (Mst. Azra Bibi) was his maternal brother (son of maternal uncle). In view of the affirmative statement of the petitioner, the onus shifted upon respondent No,1 to being on record all necessary material to prove performance of a valid Nikah.
12. The perusal of evidence of respondent No,1 will show that he had miserably failed to prove any valid Nikah with the petitioner. The first important factor is that respondent No,1 claims that his Nikah with petitioner took place on 10-4-1992. Nikahnama Exh.D.1 was produced where the date of Nikah and registration of marriage is shown as 10-4-1992. Interestingly Talib Hussain who is shown to be witness of the alleged marriage between respondent No,1 and petitioner appeared as D.W.3 and stated that the marriage took place in October, 1992. There is hell of difference between April, 1992 and October, 1992. Matter does not end here. Statement of Ijaz Ahmad the other witness of appointment of Wakeel in Exh.D.1 shows that he claimed that the marriage took place 4-1/2 years before his statement. His statement was recorded on 19-2-1997. If one goes back for 4-1/2 years from 19-2-1997 the date of marriage according to his witness would be 19-8-1992 which too will not be in accord with the month/date of alleged marriage given in Exh.D.1. Respondent No,1 himself appeared as D.W.1 and claimed that he was married 4 years before the date of his statement. His statement was recorded on 11-4-1996 and according to him he was married on 11-4-1992. Not only that the date of Nikah in Exh.D.1 is given as 10-4-1992 but also the statement of respondent No,1 as D.W.1 is contradictory to the other witnesses who did not support him nor corroborated his statement. The learned Courts below completely ignored this important aspect of the matter which had material bearing on the plea raised by respondent No, 1.
13. D.W.1 (respondent No,1) while appearing as his own witness stated that on the Nikahnama Exh.D.1 firstly he signed, then witnesses signed and thereafter thumb-impression of petitioner Mst. Azra Bibi was allegedly obtained. He admitted that Mst. Azra Bibi never thumb-marked in his presence. Talib Hussain D.W.3 who is alleged witness of the marriage stated that firstly he thumb-marked the Nikahnama and thereafter, the petitioner thumb-marked it. Ijaz Ahmed D.W.4 took different siand.
The matter does not clinch here. Nikah Khawan D.W.2 claimed in his statement that he performed the Nikah and obtained signatures of witnesses in his presence. In his cross-examination he stated that he had obtained the thumb-impressions of the parties by going inside the house. On being cross-examined he admitted that he was illiterate, could not write Urdu and he could make very little reading. He admitted that columns 1 to 24 of Exh.D.1 were not filled up by him. He further admitted that the original register of Nikahnama was not produced in the Court nor he had brought it. He did not know Muhammad Hanif Nikah Khawan. He contradicted the earlier stand of D.W.1 who stated that the parties first thumb-marked the Nikahnama and thereafter, the witnesses did the same though D.W.1 (respondent) claimed that he and his witnesses firstly thumb-marked and thereafter, the document was sent to the petitioner for thumb-impression. Talib Hussain D.W.3 in his cross-examination stated that he did not remember what was the amount of dower. This was all about these witnesses who not only suffered from contradictions but also created serious doubt as to the alleged Nikah of respondent No,1 with the petitioner. The other witnesses, Faqir Muhammad, Noor Akhtar and Muhammad Zafar were not produced. It is also interesting to note that the father of the petitioner or the brother of the petitioner who were alive at that time were not shown to be either Vakeel, witness of Vakeel of the bride or a witness to the marriage, which makes the plea of marriage between petitioner and respondent No,1 more doubtful. It was thus a case in which Nikah Khawan on the face of it was not making any truthful statement, there was a big difference of the date and month of the marriage, claimed in the Nikahnama and deposed in the statements of D.Ws. 2 to 4. Even in this regard there was contradiction between respondent's own stand and the stand of his witnesses. There were serious material contradictions as to the happening of other events in the four statements.
' There was a conspicuous missing of father and male member of the family of the petitioner in the alleged marriage of respondent No,1 while other material witnesses of Nikahnama was withheld for the reasons not brought on the record. In this situation there was hardly any- evidence, worthy of consideration to assume of existence of any valid marriage between the petitioner and respondent No,1. It is also important to note that admittedly the petitioner is living with Allah Bakhsh since 1993 when she was married to Allah Bakhsh and this fact was not denied by her father while appearing in Court. In this backdrop and the circumstances noticed (supra), there is substance in the submissions of learned counsel for the petitioner that the presumption of valid marriage will be in favour of petitioner and Allah Bakhsh. In this regard learned counsel got support from certain observations in the following quotations from Articles 1431 (531) and 1433 (533), Section I, Chapter IV of Fatawa-i-Kazee Khan relating to Mahomedan Law, Volume I:-- 1431 (531)..............................................
"And if each of them establishes proof by witnesses, to the effect that the woman belongs to him, and if the woman is in the hands of one of them, then , the Kazee shall decree her to the man in possession."
"And if both of them establish proof by witnesses regarding marriage, and neither of them fixes the time of the marriage; then, if (father both of them have brought witnesses) the woman admits marriage with one of them, the Kazee shall decree her to the man in whose favour the admission is made;...And some have said that Kazee shall decree her to the person in whose favour she has made the admission; because the admission of the woman in favour of one of the two husbands is tantamount to possession by the husband; because if both of them have established proof by witnesses, whilst she is in the hands of one of them, the Kazee shall decree her to the man in whose hands she is."
"1433 (533). And if two men claim to have married one and the same woman, and one of them has had intercourse with her, but she is living in the house of the -ther; then Sheikh-ul-Imam Aboo Bakar Mahmood, son of Fuzul, says, that the owner of the house (in which the woman lives) is to be preferred."
14. In this view of the evidence on record the findings recorded by the learned Courts below suffer from glaring misreading, non-reading and misinterpretation of the evidence and perversity of reasoning and, therefore, the same are legally untenable.
15. For the reasons above, these writ petitions are allowed, the judgments, of the learned Courts below are declared to be illegal and without jurisdiction and are accordingly set aside. In result the suit for jactitation of marriage filed by the petitioner is decreed while suit for restitution of conjugal rights is dismissed.