P L D 1959 (W (PLP)

This second appeal is by Ghulam Muhammad, who instituted a suit against Mst. Shah Jira Khanam and others for restitution of conjugal rights. The suit was decreed against her by tile trial Court but was dismissed on appeal.

2. Mst. Shah Jira Khanam defendant‑respondent was born on the 14th January 1935 (vide certified copy of the birth entry Exh. D‑2). She was married to Farzand Ali, brother of the plaintiff‑appellant in March 1950. She was, therefore, over 15 years of age at the time of her marriage to Farzand Ali. She brought a suit for dissolution of marriage against Farzand Ali, and was actually divorced by him on the 23rd May 1954. She was married to Ghulam Muhammad plaintiff on the 31st May 1954, i.e., eight days later. The plaintiff's case is that she lived with him for about four days and was then taken away by her step brother, Madad Shah, and she refused to come back, although a number of deputations were taken to her in this connection. The defendant's plea was that Mst. Shah Jira Khanam had never in fact been married to the plaintiff, and he had been demanding her hand, but he had been refused and therefore, he had brought the present suit. The following issues were framed:‑ (1) is defendant No. 1 the wedded wife of the plaintiff? (2) If issue No. 1 is proved, was the nikah between the plain tiff and defendant No. 1 void? (3) To what relief the plaintiff is entitled against defendants Nos. 2 to 8 ? The suit was decreed by the trial Court. In doing so, the Court relied on an admission made by her in Exh. P. 3 (copy of the plaint) in the stilt filed against Farzand Ali. wherein she had stated that there ha(, been no consummation or the marriage, which has taken place, while she was a minor. As this admission had not been put to Mst. Shah Jira Khanam and as she had not been given an opportunity to explain, the case was remanded by the District Judge to the trial Court for a fresh decision, after recording further evidence if any. Both the trial Court and the Appellate Court have found that consummation of the marriage between Mst. Shah Jira Khanam respondent with Farzand Ali had taken place and the marriage with Ghulam Muhammad, the present plaintiff, took place during the period of iddat and was, therefore, irregular. Despite this finding the trial Court granted a decree to the plaintiff for restitution of conjugal rights on the ground that there had been no relinquishment or repudiation of the irregular marriage by Mst. Shah Jira Khanam, holding that an irregular marriage lega lises sexual intercourse and the issues procreated are also legitimate. The Appellate Court agreed with the trial Court on the question of fact, but held, relying on Mst. Bakht Bibi and another v. Qaim Din and others (A I R 1934 Lah. 907), that the marriage have been performed during the period of iddat was irregular and this constituted a good defence to a suit for restitution of conjugal rights. In Mst. Bakht Bibi and another v. Qaim Din and others it is held that a marriage between Muslims if performed with a woman during the period of iddat is invalid and the mere fact that the marriage is consum mated after the expiry of the iddat period does not entitle the husband to a decree for restitution of conjugal rights. Para. 39‑A of Wilson's Muhammadan Law was referred to, which states that on an irregular marriage of the type being brought to notice, it is the duty of the Court to separate the parties and that the conjugal relations may also be terminated by a simple declaration on either side ; consummation having previously taken place, the only effect is that the woman is entitled to dower and the issue, if any, is considered to be legitimate. Reference was also made to para. 206 of Principles of Muhammadan Law by Mulla, 10th Edition, as being to the same effect. It was specifically held that mere consummation was not sufficient to validate the marriage. In that case also the defendant had denied her marriage with the plaintiff and as she appeared on the evidence to be living as the wife of the defendant, i.e., another person, it was considered sufficient to terminate the invalid marriage.

3. Both the Courts below have come to the conclusion on ample evidence on the record, and with these conclusion I am in entire agreement on going through the evidence, that the marriage of Mst. Shah Jira Khanam with Farzand Ali was duly consummated and that she was married to Ghulam Muhammad during the period of iddat and consequently the marriage of Mst. Shah Jira Khanam with the present plaintiff was irregular. In coming to the conclusion that the marriage of Mst. Shah Jira Khanam with Farzand Ali was duly consummated, the Court below has relied on her statement coupled with the statement of Abdur Rahman (D. W. 8), Allah Dad (D. W. 9), Hukam Dad (D. W. 10) and Muhammad Khan (D. W. 11) who stated that Mst. Shah Jira Khanam when given in marriage to Farzand Ali had attained puberty and the evidence of Allah Dad (P. W. 7) and Ali Akbar (P. W. 8), plaintiff's witnesses, who had admitted that Mst. Shah Jira Khanam had ‑gone with Farzand Ali to Nara after the marriage and spent the night with him, and the fact that the present plaintiff did not produce his brother Farzand Ali to state that there was no consummation of the marriage. Farzand Ali, it may be stated, was an adult male at the time of marriage and it was admitted before me that he is an elder brother of the present plaintiff, who gave his age as 30 years on the 26th January 1955. In 1950, be must have been over 25 years of age. The Court was justified in holding that the admission of Mst. Shah Jira Khanam of consummation of marriage in the plaint (copy Exh. P. 3) in her suit for dissolution of marriage against Farzand Ali was not binding and conclusive against her. The inference is irresistible that there was consummation of marriage between Mst. Shah Jira Khanam and Farzand Ali who were both adults at the time of their marriage. The learned counsel for the appellant mainly stressed that the admission of Mst. Shah Jira Khanam should be treated as binding and conclusive, but the admission has been duly considered along with the other evidence by both the Courts below and the findings of fact are binding and are in my view well founded.

4. The main question to decide, therefore, is whether irregu larity of a marriage performed during the period of iddat is a good defence to a suit for restitution of conjugal rights or not. Refer ence has already been made to Mst. Bakht Bibi and another v. Qaim Din and others Rattigan, J. in Ilahia v. Imam Din and another (29 P R 1909) relying on Mst. Bibi v. The Empress (43 P R 1882) held that a marriage contracted by a widow before the expiry of the period of iddat is unlawful and is absolutely void, if the man to whom she is so married had knowledge .of the fact that the period of iddat had not expired when the marriage with him took place. In that case, as in the present case, the plaintiff who had brought a suit for restitution of conjugal rights was a brother of the woman's late husband and it was concluded that it was impossible to believe that he did not know that he was marrying a woman within four months and ten days (the period of iddat) of his brother's death. The plaintiff must have known in this case that he was marrying Mst. Shah Jira Khanam respondent within her period of iddat. In Mst. Ruro v. Bagh Singh and others (157 I C 779), Beckett, J. held : "There may be some doubt on the point whether a marriage celebrated during the period of iddat should be regarded as merely irregular or altogether void, although the practice in the Punjab has been to treat such marriages as entirely devoid of any legal effect, so far as the parties themselves are‑concerned. But an irregular marriage does not acquire validity in the absence of formal dissolution and can be repudiated by the parties at any time either before or after consummation. When an invalid marriage is renounced, it has no legal effect on the status of the parties though it may effect the legitimacy of any issue of the marriage, and also the right of the wife to payment of dower." In this case the District Judge had held that the irregularity in the marriage during the period of iddat was cured as there was no formal dissolution of marriage before the period of iddat expired and that the marriage accord ingly became valid after that. This was held to be an incorrect view. In Muhammad Hayat v. Muhammad Nawaz and others (I L R 17 Lah. 48 (D B)), it was laid down that according to Muhammadan Law, a marriage contracted during the period of iddat was only "fasid" (invalid) and not "batil" (void). Consequently it was held that the children of such marriage must be held to be legitimate. The legitimacy of the children is not involved in the present case, but this case is mentioned as it refers to Jhandu v. Mst. Hussain Bibi and others (I L R 4 Lah. 192 (D B)) and it was observed that in the suit which was for restitution of conjugal rights, the lady was entitled to set up the defence that the marriage, if any, was invalid and was not binding upon her. In Jhandu v. Mst. Hussain Bibi and others it was held that a marriage contracted by a widow within the period of iddat, i.e., 4 months and 10 days, was void. Mst. Hussain Bibi had in this case remarried Jhandu within two months of the death of her former husband. Jhandu had brought a suit for restitution of conjugal rights and following Ilahia v. Imam Din, the suit was dismissed by the lower Courts and this decision was maintained by the High Court on the ground that the marriage with Jhandu was illegal and not, therefore, binding on Mst. Hussain Bibi. In my view, the marriage of Ghulam Muhammad plaintiff with Mst. Shah Jira Khanam was irregular as it took place during the period of iddat and this must have been known to Ghulam Muhammad also. Irregularity of the marriage is a good defence to a suit for restitution of conjugal rights as it is necessary, in my view, for a marriage to be valid according to Muslim Personal Law before the Courts can grant a decree for restitution of conjugal rights. The learned counsel for the appellant frankly conceded that he could produce no authority to the contrary. In view of the authorities which I have mentioned above, there is no alternative but to hold that the plaintiff is not entitled to a decree of restitution of conjugal rights against Mst. Shah Jira Khanam, as his marriage with the defendant‑respondent was irregular under the Muslim Personal Law.

5. The learned counsel for the appellant laid considerable stress on the argument that the order of remand by the District Judge was not made under any provision of the Code of Civil Procedure and was, therefore, incompetent. He argued that the order of remand was illegal as it was not covered by rules 23 or 25 of Order XLI, Civil Procedure Code. When his attention was drawn to rule 23‑A of Order XLI, C. P. C. which is a local amendment for Lahore, he had nothing to urge. He merely argued that the parties should not have been allowed to produce further evidence. Both the parties had equal opportunity to adduce further evidence and there has, therefore, been no prejudice to either party, nor was the order illegal in any way. The order of the District Judge remanding the case for decision after such further evidence as could be produced by the parties is covered by rule 23‑A of Order XLI, Civil Procedure Code.

6. The learned counsel for the appellant also argued that it was not necessary for the admission made by Mst. Shah Jira Khanam in her plaint (copy Ex. P. 3) to be put to her for being used against her. He mentioned Secretary of State v. Akbar Shah (A I R 1934 Lah.753) (relied upon by the lower Appellate Court) which is to the effect that a previous statement made by a party cannot be made legal evidence in the case and used against him as an admission by merely filing an attested copy of that statement, without putting it to the party concerned, in order to show that it did not lay down good law, but failed in the attempt. The above view has consistently been followed in the Lahore High Court and is based on sound logic. The order of remand was based on good grounds. This was for the benefit of the plaintiff so that he could rely on the defendant's admission in a former suit. What value is to be attached to it has now been determined by the Courts.

7. The second appeal fails in the result and is hereby dis missed with costs.

8. The learned counsel for the appellant made an oral request that I should give him a certificate for a letters patent appeal. As, however, there is no conflict in law or authority that irregularity of marriage on the ground of its performance during the period of iddat of the woman is a good defence to a suit for restitution of conjugal rights, I do not consider it a fit case for the grant of a certificate. K. B. A./A. H. Appeal dismissed.