P L D 1954 Lahore 325 (PLP)

KAIKAUS, J.‑This second appeal arises out of a suit brought by Mst. Mahmud Fatima appellant for a declaration that she is not the legally wedded wife of the respondent and that if there had been a valid marriage it stood dissolved on account of the exercise by her option of puberty. The suit was decreed by the trial Court but has been dismissed on appeal. Some preliminary facts can be stated. Plaintiff's family belonged originally to Amritsar District. Defendant is employed in Lahore but belongs to Sialkot. It is not now disputed that a marriage between the parties did take place at Amritsar on the 2nd of April 1945: Whether it was a valid marriage is a matter which will have to be decided. The elder sister of the plaintiff was married to the elder brother of the defendant. On the occasion of that marriage, the nikah of the plaintiff with the defendant was also performed. At the time of the suit the plaintiff was residing at Mona in the district of Gujrat. Her case, as stated in the plaint, is that the defendant was claiming to be her husband, that she did not accept the existence of any marriage between her and the defendant, and that in any case even if during her minority a marriage bad been performed, she had the right to avoid the marriage on account of the option of puberty and she had exercised that option on the 20th of January 1949. She stated that her age on the date when she filed the suit was 15 years and 20 days. The suit had been filed on the 1st of February 1949. The defendant replied that a valid marriage had been performed between her and the defendant on the 2nd of April 1945. He added that at the time when according to the plaintiff the option of puberty was exercised, the plaintiff's age was more than 18 years and, therefore, she was not entitled in law to exercise that option at all. He alleged further that at the time of the plaintiff's marriage she was 15 years and 2 months old. He produced a Kabin nama dated the 2nd of April 1954. The following two issues were framed in the suit :‑ (1) Is the plaintiff legally wedded wife of the defendant ? (2) If so, has the marriage been lawfully repudiated in the exercise of the option of puberty ? These issues were framed on the 9th of November 1949. On the 15th of December 1949 the defendant objected to the territorial jurisdiction of the Court and got a preliminary issue framed as to whether the Court had jurisdiction to try the suit. By an order dated the 11th of April 1950 the trial Court decided the preliminary issue in favour of the plaintiff. A revision application against this order was filed in the High Court. At the time of the hearing of this application learned counsel for the plaintiff, who was probably under the impression that so far as the suit was based on the exercise of the option of puberty, the Gujrat Court had jurisdiction but that with respect to the alternative cause of action that there was no legally valid marriage at all, the Gujrat Court may not have jurisdiction, conceded that he did not dispute the factum of marriage and that his case would be confined to exercise of the option of puberty. To the effect of this concession I am going to revert. It would be sufficient to state for the present that as a result when the case went back to the trial Court after dismissal of the revision petition, the trial Court gave judgment on the basis of issue No. 2 alone although it did not give any order confining the evidence to issue No

1. It was only at the time of argument and judgment that this matter was referred to. A good deal of evidence was led by both parties on the question of age which became all important. If the defendant lost on this point the plaintiff would obviously be entitled to a decree because there is no plea of consummation of marriage. The defendant admits that there was no rukhsati, there being only a nikah on the occasion of the marriage of her elder brother, (sister ?) and that a barat was yet to go. It will be observed that there is a good deal of difference in the ages stated by both parties. According to the plaintiff she was born on the 1st of January 1934 while according to the defendant she was born on 23rd of January 1930. The plaintiff has relied upon the following documents in proof of her age:‑ (1) A School Leaving Certificate dated the 19th of October 1944 (Exh. P. W. 1/2) issued by the Head Mistress of the Muni cipal Board High School, Katra Karam Singh, Amritsar. Her date of birth is entered in this certificate as the 1st of January 1934. (2) Copy of application submitted by Meraj‑ud‑Din, father of the plaintiff, on the 25th of October 1944 (Exh. P. W. 1/3) in the Government Girls High School Sargodha. In this application the date of birth is given as, Ist of January 1934 (3) Copy of an entry from Admission and Withdrawal register of the Government Girls High School, /Sargodha, (Exh. P. W. 1/1). In this too the date of birth mentioned is the 1st of January 1934. (4) School Transfer Certificate issued by Government Girls High School, Sargodha, (Exh. P. 1) The date of birth entered is the 1st of January 1934. (5) Kabinnama (Ex. D. 5) which has been produced by the defendant. In this Kabinnama in more than one place the plaintiff has been mentioned as nabaligh and the nikah is shown to have been performed through her father who is her wali. At the same time, however, there is a printed entry of vakil nikah and this entry is signed by her father. The plaintiff also produced in evidence a lady doctor (P. W. 6), She stated that on the 11th November 1950 when she examined the plaintiff and gave her the certificate Exh. P. W. 6/1, she was between 16 and 17 years of age. Two witnesses were also produced by the plaintiff who support her statement as to age. The first is Abdul Hamid (P. W. 4) who belongs to the same family as the plaintiff, and is a marginal witness to the Kabin nama. He said that the age of the plaintiff at the time of her marriage was 11 or

12. Ahmad Beg (P. W. 15) is another attesting witness to the kabinnama and his evidence is in similar terms. In addition, the plaintiff made her own statement. The defendant placed his reliance in proof of the age of the plaintiff mainly on the birth entry Exh. D.

3. This shows that a daughter was born to the father of the plaintiff on the 23rd of January 1930 at Montgomery. To prove that this birth entry related to the plaintiff the defendant produced a statement given by Meraj‑ud‑Din father of the plaintiff, in a criminal case wherein he had admitted that none of his children had died. The position taken up with regard to this entry on behalf of the plaintiff was that it referred to her elder sister who had died when she was only a few days old. No death entry, however, relating to this daughter, was produced. The only explanation given is that the death may not have been reported. The defendant also called Meraj‑ud‑Din, the father of the plaintiff, as a witness and put his previous statement to him. The only explanation he gave was that he was speaking only about the seven children who were in existence. The explanation was not considered very satis factory even by the trial Court: Three other witnesses were produced by the defendant, the main object of their evidence being to explain the entry in the kabinnuma as nabaligh. The first was Ghulam Haider, vasiqa navees, who was also‑‑ the nikah khawan. He explained the entry by saying that as, the:‑plaintiff was below eighteen and therefore in law a minor, be described her as such in the kabinnama. He, however, made a, rather inconsistent statement that the father of the plaintiff performed her nikah as her wali as well, as her vakil, This, probably he bad to say; because in the kabinnama the father had been mentioned as wali at more than one place. Muhammad Yahya (D. W. 4) was produced to prove that in fact the permission of the plaintiff was taken at the time of her marriage. This is a matter on which I would refrain from making any observation because, I am going to remand the case for trial with respect to the validity of the plaintiff's marriage. D. W. 8 Abdul Hameed and D. W. 9 Ismail were produced to support D. W. 2 Ghulam Haider as to the reason why the plaintiff was entered as nabaligh in the kabinnama. The learned Senior Sub‑Judge who tried the suit observed that there was something to be said for both sides but reached the conclusion that the plaintiff was born on the 1st of January 1934. He placed his reliance mainly upon the entries in the school registers and the kabinnama. With respect to the entries which had been made in the application filed by Meraj‑ud-Din in the Government High School Sargodha, on the 25th of October 1944, he was of the opinion that there was no reason at all for disregarding it. There was no dispute at that time about the age of the plaintiff and the father who knew the age of his daughter was expected to give her correct age. He stressed the fact that in the kabinnama she was shown as nabaligh. He was not at all satisfied with the explanation given by Ghulam Haider (D. W. 2) as to the entry of nabaligha in the kabinnama. The Majority Act, be pointed out, was entirely irrelevant in a question relating to marriage. He believed the story put forward by the plaintiff that the girl who was born on the 23rd of January 1930 bad in fact died. On appeal the learned District judge found the entries in the School Registers to be not of much weight. The entries in the register of the Government School at Sargodha and the applic ation which was submitted by Meraj‑ud‑Din would, according to him, be just copies from the entry in the School Leaving Certificate issued by the Amritsar Municipal Board School. With respect to the entry made in the School Leaving Certificate of the Municipal Board School of Amritsar, there was nothing on the record to show that it bad been made at the instance of the father. According to the plaintiff herself, her mother had gone with her to get her admitted. The learned judge referred to some judgments laying down that entries in school registers are not of much weight particularly when it is not known at whose instance they were made. So far as the entry in the kabinnama about the plaintiff being nabaligha is concerned, he accepted the argument put forward on behalf of the defendant that girls who were a little over fifteen years may also be described as minors. He did not accept the story put forward that the girl who was born on the 23rd of January 1930 had died a few days later. I have carefully gone through the record because of the objection taken by the learned counsel for the appellant that the exclusion by the learned District judge of the records of Municipal Board School Amritsar from evidence, which records were legally admissible in evidence, affected and vitiated his finding as to age. The learned District judge, relying on Hoak Saing v. Ma E Hla and others (A I R 1940 Rang. 191.), has excluded the Municipal Board School Certificate from consideration on the ground that it did not fall within section 35 of the Evidence Act. If I were of opinion that the exclusion of this evidence could possibly have affected his judgment I would set aside this finding of fact, for', A I R 1940 Rangoon 191 does not hold good so far as the Municipal Board Schools of the Punjab are concerned. "It was held in that case that teachers of Municipal Board Schools are not public servants and therefore entries in records kept by them are not within the purview of section 35 Evidence Act. Whatever may have been the position in Burma it is clear that teachers in Municipal Board Schools in the Punjab do fall within the definition of public servants. Under section 19 of the Municipal Act, every servant of the Municipal p Committee is a public servant. A record kept by such teacher would, therefore, be covered by section 35 of the Evidence Act. However, I am quite clear that the judgment of the learned District judge is not influenced by this consideration. Although he said that the School Leaving Certificate was inadmissible in evidence, he has referred to it while dealing with the evidence and he has rejected it on the ground that it is not of much value unless the person at whose instance the entry was made be known. From the Municipal Board School there was only one certificate. The other documents were from the records of Government High School of Sargodha. These documents he did not exclude from evidence. The stress in his judgment is on the lack of value of such evidence. As provided in section 167 of the Evidence Act every improper admission or rejection of evidence is not a ground for retrial. I am satisfied, that the finding of the learned District judge has not been affected by this improper exclusion of evidence. I would, therefore, not disturb the finding of fact. This, however, does not conclude this appeal. When I read the judgment of the learned District Judge, it occurred to me that the first question to be decided in this case was whether the plaintiff had given her consent at the time of her marriage or not. The defendant's case was that she had attained puberty at the time of her marriage. If she had attained puberty the marriage could take place by her own consent and the question of option of puberty would not arise. If she was not a consenting party she would in any ‑case be entitled to a decree in the suit, for if she was major at the time of the marriage. the marriage would have been void for want of consent, and if she was a minor she had obviously exercised her option of puberty. This point however has not been decided by the lower Courts because of the concession made by learned counsel for the plaintiff' while arguing the revision application. The only question which I have to consider is whether the plaintiff is debarred by the attitude which her learned counsel took at the time of the hearing of the revision petition from having the question of the validity of her marriage decided by the Court on facts. It will be observed that so fat as the admission of learned counsel is concerned it related only to the factum of marriage. I will quote that part of the order of Rahman J. in which the concession is referred to for there is no separate statement of counsel. It runs: "Learned counsel for respondent states that his client gives up the plea that there was in fact no nikah or marriage between her and the defendant petitioner and she would confine her case to the repudiation of the marriage with the petitioner in the exercise of her option of puberty alone." The first part of the sentence which contains the admission relates only to the factum of the marriage. The second part does go further than the first but it relates to the giving up of some plea and not to any admission of fact. It is obvious that while accepting the factum of marriage the plaintiff's counsel could not possibly have been admitting that the plaintiff had given her consent to the marriage. That was directly opposed to her case for she was pleading that she was only about eleven years old at the time of the marriage. He was only admitting a consent given by the father on her behalf. Learned counsel for the petitioner appears to have made this concession because he was apprehensive of losing on the question of jurisdiction if he did not confine his case to the exercise of option of puberty. Mr. Kitchlew, who appears for the plaintiff‑appellant now was appearing in that revision petition and he states that he only admitted the factum of marriage. In any case there was some confusion of thought. Learned counsel did not properly appreciate the legal position and did not realize the importance of the plea he was giving up. I cannot allow her case to be prejudiced on account of some misconception on the part of her counsel. I have stated above that the admission made could not possibly imply that the plaintiff had herself consented to the marriage. It will, therefore, be not fair at all that a question like the present which relates to the marriage of the plaintiff should be decided against her without her having an appropriate opportunity to contest it. Her counsel did make a concession and ordinarily if a plea is given up I would not allow that plea to be re‑agitated. However, Courts are not debarred from relieving parties of the effects of their concessions. In A I R 1946 Lah. 200 the party was relieved of the effect of a similar concession by counsel. There the method which the learned Judges adopted to grant relief was that they allowed the suit to be withdrawn altogether with liberty to file a fresh suit. I do not regard that procedure appropriate for this case and I think it would be proper that an issue, which has already been framed, should be decided on its merits, I may state that it was on my suggestion that the learned counsel for the appellant took up this point. I would, therefore, accept this appeal and remand the case to the trial Court for a fresh decision after recording a finding on issue No.

1. The evidence previously recorded shall be read as evidence in the case and the parties shall be allowed to produce any further evidence that they desire to produce. In deciding this issue the Court shall not be affected by any observations which may have been made in the judgment delivered by any Court in this case which may touch the point now in dispute. For the decision of this issue the Court will only determine the question whether the plaintiff gave her consent to the marriage. The consent by her father cannot now be denied in view of the admission but that consent is ineffective for she bad attained puberty. So far as costs are concerned, the plaintiff is to blame and the costs up to the hearing of this appeal, i.e., the costs of the defendant in all the three Courts up to the present date, shall (except costs of the revision petition) be borne by the plaintiff. A. H. Case remanded.