1. ' This appeal is 10 assail the judgment and decree recorded by the Judge Family Court, Muzaffarabad, dated 27-2-1999, whereby, the said Court decreed a suit by the respondent No,1 for perpetual injunction and declared her to be legally wedded wife of respondent No,2.
2. ' The facts of the case are; that Mst.Nusrat Bibi respondent No,1 brought a suit for perpetual injunction before the Judge Family Court, Muzaffarabad on 7-2-1998. According to her suit she was married to the appellant in the year 1996 against her will, however, subsequently she was divorced by the appellant on 16-4-1998. But despite the fact of divorce the appellant was claiming her to be his wife, therefore, she sought a declaration from the Court that she was not wife of the appellant and after divorce she had contracted her second marriage with the respondent No,2 Muhammad Jhangir Dar.
3. ' The trial Court after the process of law directed the respondent No,1 Mst. Nusrat Bibi to lead evidence if any. On 9-2-1999, one of the witnesses enlisted in the list of the witnesses namely Muhammad Rafique son of Barkat Ali appeared in the witness-box. He was examined by the learned counsel for the respondent Mst. Nusrat Bibi and during cross-examination, the learned counsel for the appellant asked him as if he was ready to make his statement on oath. The said witness replied in affirmative, therefore, the trial Court administered a special oath to the said witness. Subsequently, the learned counsel for the plaintiff-respondent moved an application to the trial Court to decide the case on the basis of special oath administered to the said witness. The trial Court asked the other party for ob; ctions if any. The learned counsel for the appellant filed objections to the application submitted for decision of the case on the basis of oath administered to the said witness. The learned counsel, while submitting his objections stated that no offer for special oath was made to the witness, however, during cross-examination only a question was put to the witness whether or not he wanted to make his statement on oath, therefore, the learned counsel or his client never bound themselves if the special oath was administered by the trial Court. According to the learned counsel, such-like oath did not qualify to be a special oath, therefore, he requested the Court to decide the case on its merits. However, the trial Court turned down his plea and decided the case on the basis of the oath administered to the said witness and resultantly, the suit by the respondent No,1 was decreed in her favour and moreover, it was declared that she was a wedded wife of Mr. Muhammad Jhangir Dar respondent No,2. Hence this appeal.
4. ' The learned counsel for the appellant during his arguments contended that sections 8, 9 and 11 of Oaths Act made it abundantly clear that while making an offer for special oath, it was necessary for the maker to bind himself with the consequences of Special Oath if offer was accepted by the opposite-party. Here in this case, as no offer was legally made, therefore, the administration of oath and its consequence was not binding on his client, thus, the trial Court fell in error while deciding the case on the ground of special oath.
5. ' On the other hand, the learned counsel for the respondents argued that the learned counsel for the appellant during his cross-examination made an offer for special oath to the witness and by not cross-examining the said witness after administration of oath he or his client, by their conduct, were bound to accept the consequence of the oath and as such the present appeal was not competent in the eye of law.
6. ' The record of the case and relevant law on the subject was examined carefully. Here in this case the learned counsel for the appellant/defendant while cross-examining a witness namely Muhammad Rafique asked the said witness if he was ready to make his statement on oath and the said witness replied in affirmative. Consequently, he was administered a special oath by the trial Court. Thereafter, the learned counsel for the respondent-plaintiff moved an application to decide the case on the basis of the statement made by the said witness. The other party raised, objection but the trial Court through the impugned judgment and decree allowed the suit by the respondent-plaintiff and declared that Mst. Nusarat Bibi was divorced by the appellant No,1 and she was legally wedded wife of Mr, Muhammad Jhangir Dar.
7. The relevant provisions of law in this case are sections 8, 9 and 11 of Oaths Act. The comparative study of the aforesaid provisions shows that when an offer for special oath is made by any party or witness, it includes the statement whether verbal or written about the item/items for which the, permission of the Court for administration of special oath is sought and that he will abide himself by it if the offer stands accepted by the other party. Sections 9 and 11 of the aforesaid Act make it abundantly clear that any offer for special oath must include the expression by its maker to abide by special oath if the offer stands accepted by the opposite-party. As the Oaths Act is a special law, therefore, procedure laid down in it requires to be strictly followed. There should be a clear and unambiguous offer and acceptance before tendering a Special Oath. There appears no room for implied offer and acceptance and it is not permissible under law to presume the fact of offer and acceptance because a special oath follows a special procedure and it should be followed strictly.
8. Under section 9 of the said Act the Court may or may not administer special oath despite an offer and acceptance but when it feels to administer an oath, then it becomes imperative for the Court to see whether the offer made by any party or witness qualifies as a 'legal offer' as indicated above and if the offer is made in accordance with law only then it will be put to the other party and if it stands accepted, the Court may administer a Special Oath. A Special Oath under provisions of the said Act is an agreement between the parties, therefore, its term and conditions must be clear and unambiguous. If the offer and acceptance is not reduced into writing, then there must be something on record to see that the parties agreed to what extent. Therefore, the Court is under legal obligation to record in its order that what was the offer for administration of oath and the same stood accepted by the other party. In absence of anything on record to show a lawful offer, it is not permissible under law to decide the claim of any party on the basis of special oath.
9. ' Testing the case of the appellant on the above criteria there is no room to allow the claim of the respondent on the basis of oath administered to the witness Muhammad Rafique. There is nothing on record to show that the learned counsel for the appellant-defendant ever declared to abide himself by the oath administered to the said witness. As stated earlier the learned counsel during cross-examination asked the witness if he was ready to make his statement on oath and the witness replied in positive. Consequently, a special oath was administered by the Court. Though after administration of oath, the witness was not further cross-examined by the learned counsel, but nevertheless it cannot be said that the learned counsel or his client was bound by the offer through their conduct. There might be some other reason to refrain from further cross- examination. As indicated earlier, the offer for special oath is a condition-precedent and the Court is under legal obligation. To satisfy itself about its being a lawful offer. Here in this case, it is not clear from the Court's order recorded on the relevant date that the learned counsel for the appellant-defendant ever bound himself to accept the consequence of special oath.
10. ' It is correct that we all should respect administration of special oath to a witness or a party but at the same time the law should be allowed to take its own course.
11. ' As the legal requirements for special oath in this case were not fulfilled, therefore, to allow the claim of the respondent on this sole ground is illegal.
12. ' Thus, by accepting the appeal, the impugned judgment and decree is set side. The case is remanded to the trial Court and it is directed to summon the witness Muhammad Rafique and if any occasion arises for administration of a special oath, then decide the case accordingly, otherwise proceed with the case on its merits.