P (PLP)

(b) Muhammadan Law‑Marriage‑Inequality between parties‑When a ground for cancellation‑Disparity of age. The guardian or other relatives of an adult Muslim girl may have the right to object to an ill‑assorted union on the ground that it brings the family into disrepute. But where the wife was an educated woman of mature age when she entered into marriage with her husband who was only 15 years or less senior to her in age, the doctrine of kafat or principle of inequality between parties could not be invoked to cancel the marriage. Sh. Muhammad Shaft, for Appellant. B. Z. Kaikaus, for Respondent. S.A.RAHMAN.J_ Mst. Shahzada Begum brought a suit for dissolution of her marriage with her husband Abdul Hamid in the Court of Ch. Sultan Khan, Additional Sub‑Judge, Ist Class, Gujrat. The learned Sub‑Judge dismissed the suit but left the parties to bear their own costs. An appeal taken to the Additional District Judge, Gujranwala at Gujrat, against that order was also dismissed. No costs were awarded as certificates of fees were not filed by any party before the learned District Judge. Mst. Shahzada Begum has come up in second appeal to this Court. The plaintiff‑appellant is a teacheress in Government service and is now posted at Nowshera in the Shahpur District. The defendant‑respondent is nowadays a Superintendent in the office of the Post Master General, Punjab, Lahore. The parties' original home is Gujrat and apart from the marriage, they are otherwise also related. Their fathers‑were first cousins and another wife of the respondent was a first cousin of the appellant. The admitted facts are that the appellant's nikah was performed with the respondent on the 9th of May 1942 by a regular nikahkhan in the presence of two male witnesses. At that time the appellant teas major, her age being over 22 at that time, according to one piece of evidence, and over 24, according to another document. The respondent had married two wives previously, one of whom is still alive. He had two children from the first wife and five children from the second wife. The marriage between the parties to this appeal was also consummated, but there have been no children. The respondent is much older than the appellant. He gave his age as 48 when he was examined as his own witness in the trial Court on the 17th February .1948. Learned counsel for the appellant contends that he was much older than that. The suit out of which this appeal has arisen was brought in 1944, but somehow, the trial dragged on and it was disposed of .on the 15th May 1948 by the trial Court. The parents of the appellant were alive at the time of the marriage, but her‑ father died while the suit was pending in the trial Court. The marriage was sought to be avoided by the appellant on several grounds in the Courts below, but her learned counsel has confined his arguments before me to two grounds only. In the first place, he contends that the marriage of the parties was a clandestine affair and as due publicity required by Muslim Law was not given to the nikah, the marriage was invalid. Secondly, he alleges that this was a marriage between unequals, for the two‑fold reason that the respondent was very much older than the appellant and had several children from his first two wives. I need not, therefore, discuss the .other grounds which are not pressed before me. On the question of publicity for the nikah, learned counsel for the appellant referred me to several Ahadis quoted in section 9 of the Mishat‑ul':Masabih Book II translated by Al‑Haj Maulana Fazl‑ul‑Karim. It is no doubt mentioned in these Ahadis That the Prophet directed that the marriage be proclaimed in the public and in one of these Ahadis it was even stated that the demarcation between lawful and unlawful things in marriage is proclamation and daf (small hand drum). But I do not find in these Ahadis any referrence to the quantum of publicity required to validate a marriage. All that one can say, therefore, is that publicity would be desirable for the marriage and a public proclamation by means of a beating of drum may even be preferable, but it does not seem to follow that if no drums are beaten or "pub lic" proclamation is made, the marriage would become void. Learned counsel also referred to "Religion of Islam" by Maulana Muhammad Ali, page 625, as authority, for the view that proclamation of the marriage is necessary. Here again, there is no pronouncement by the author that a marriage performed in the presence of two male adult witnesses by a Nikah khan, would be invalid if no further publicity were given to the fact of marriage It is undoubtedly true that in the present case, as the evidence shows, the parents of the plaintiff were kept out of knowledge of the marriage mainly at her own request as she wanted to inform them of the nikah in her own way and at an appropriate time. But it was not a secret marriage in the sense contended for by the learned counsel for the appellant, as is clear from the fact that in July 1943, the appellant in a petition submitted to the Inspectress of Schools, Lahore, signed herself as the wife of the respondent. Learned counsel for the appellant frankly concedes that he can quote no authority, judicial or otherwise, to the effect that a marriage performed in the circumstances of the present case would be invalid on the ground that no public proclamation was made. According to the various text books on Muslim law, even the absence of witnesses at the nikah would merely make the marriage irregular and not void. Reference in. this connection may be made to para. 197 of Mulla's Muhammadan Law, 11th Edition, and pages 101' and 114 of Wilson's Anglo Muhammadan Law, 6th Edition. There is also a Single Bench authority of the Allahabad High Court in 141st. Bashirunnisa and another v. Bunvad Ali and another (50

1. C. 677 (1919)) in support of the view that a marriage contracted without witnesses is not illegal, but merely irregular and irregularity would be curable by consummation of the marriage. The late Syed Amir Ali adopted a similar view in Volume II of Muhammadan Law, 5th Edition, page 312, and it would seem to follow that a 'marriage duly performed in the presence of two persons could not be described as invalid in any sense. I, therefore, repel the contention raised by learned counsel for they appellant on the first ground. The argument based on the alleged inequality between the parties is, in my opinion, not acceptable in the circumstances of this case. Learned counsel referred to various authorities in support of the proposition that in they case of misalliance, the guardian or parents of a major girl have the right to object to the marriage and have it cancelled. Amir Ali's Muhammadan Law, Volume 11 at pages 364 and 368, was qouted and similar references are to be found in Sir Abdur) Rahim's Muslim Juris prudence at the pages 332 and

240. Reliance was also placed on the Fatawai Alamgiri, Amir Ali's Urdu translation, page 177, Hamilton's Hedya, page 34 (Grady's Edition) and Fatawrai Qazi Khan pages 35, 76 and 77 (Muhammad Yusaf Khan's translation). The principle may be admitted that the guardian or other relative of an adult Muslim girl may have the right to object to an ill‑assorted union on the ground that it brings the family into disrepute, etc. Learned counsel, however, agrees that there is no recorded case .Other in the judicial authorities or in the books referred to of a union having been dissolved on the mere ground of disparity of ages between the husband and the wife. I do not think that the fact of the respondent having another wife and children could offend against the principle underlying the doctrine of Kafat. Learned counsel argues that the instances quoted by the various authors are only illustrative anal do not exhaust the circumstances under which the unequal marriage contracted by a female who is sui juris could be objected to. Learned counsel for the respondent on the contrary, has challenged the competency of the appellant to raise this question in second appeal on the ground that this point was not taken in the Courts below. It involves the question of fact as to the relevant ages of the parties. Even if, however, the ages of the parties as disclosed by them in their own statements be accepted as correct, it would appear that the difference between the ags of the husband and wife was about 15 years or even less at the time of the marriage. In my opinion therefore the principle invoked does not cover the present case in any event as the disparity between the ages of the two spouses is not so glaring as could lead to the Prima facie inference that it was an unconscionable match. We must also keep in mind the fact that the appellant was an educated woman of mature age when she entered into this marriage with the respondent. In my opinion this ground also fails and the marriage cannot be annulled. No other point was argued before me in this appeal which fails and is hereby dismissed. It appears to me that the wife is very reluctant to go back to the husband, but the latter, though he has another wife, is unwilling to release her from the marital bond. Both the Courts below put to the respondent whether he was prepared to divorce his wife who was no longer desirous of continuing the marital connection. The respondent was adamant in his refusal. In view of this fact, I leave the parties to bear their own costs throughout. The decision will be communicated to the parties or their counsel. A. H. Appeal dismissed.