P L D 1952 Peshawar 47 (PLP)

MUHAMMAD SHAFI, J.‑This revision petition has arisen out of a suit instituted by Mst. Naima Sultan against Muhammad Zaman and three others for possession of 6 kanals 2 marlas out of 16 kanals 4 marlas of land, bearing khasra No. 18, situated in Banda Pir Khan, in the Hazara District. It was alleged in the plaint that Mst. Naima Sultan was married to Abdul Qayum, step‑brother of Muhammad Zaman, and real brother of Mst. Rahima Jan and Mst. Munawar Jan, and the son of Mst. Begum Jan, the defendants in this case on the 10th of February 1947. The same day a dower deed was executed by which Abdul Qayum gave her the land in suit. Since at the time of the marriage she had not attained puberty, she could not go to her husband's house to have the marriage consummated. Shortly after the marriage Abdul Qayum was however arrested in the Muslim League agitation, and when he came out of jail he died in June 1947. The defendants in their written statements contested the plaintiff's claim, and denied the factum of marriage. They also alleged that the marriage if performed was against the Muslim Law. The learned trial Court framed a preliminary issue, and while deciding it came to the conclusion that Mst. Naima Sultan on the 7th of April 1949, was 16 years of age. The necessary consequence of this finding was that at the time of her marriage Mst. Naima Sultan was a little less than 14 years of age. After deciding this issue, the learned trial judge decided the other three issues, which were to the following effect :‑

2. Whether Abdul Qayum deceased executed the registered deed dated 10th February, 1947, in favour of the plaintiff ?

3. If issue No. 2 is proved, whether the deed is without consideration and is a result of fraud ?

4. Whether the plaintiff is to be reimbursed out of field No. 18 ? The learned trial judge came to the conclusion that Abdul Qayum had executed the deed dated 10th February, 1947, and duly registered it. He also held that in view of the fact that it was a dower deed the question of its being without consideration did not arise. He further opined that as there was no evidence showing that the deed was executed as a result of fraud, this point must be decided against the defendants. On issue No 4 the learned trial Court held that the plaintiff did not lead any evidence beyond that of Muhammad Hussain patwari who could not tell whether the hissadari of Abdul Qayum in 6 kanals 3 marlas out of the field in dispute had in any way diminished of not. He decided this issue against the plaintiff. Having decided the principal issues in favour of the plaintiff he granted her the decree prayed for. There was an appeal against this order, which was dis missed by the learned District Judge, Hazara, by his order dated 30th August 1950, with costs. The defendants have now come up on revision to this Court. It is urged on their behalf that at the time when the alleged marriage of Mst. Naima Sultan took place with Abdul Qayum she had attained puberty, and as she admittedly did not give her consent to the marriage, it was illegal and com pletely ineffective. This contention is based on the two authorities of this Court, reported as 1940 Pesh. L. J:, p. 2, and 1942 Pesh. L. J., p. 19, in which it was held that under the Mahomedan Law it was absolutely necessary that the man or someone on his behalf and the woman or someone on her behalf should agree to the marriage at one meeting, and that the agreement should be witnessed by two adult witnesses. It, has, however, been accepted in both these authorities as well as in the Muslim Law that in the case of a woman who has not attained majority the consent of marriage can be given by her father. The sole question to be decided then in this case is whether Mst. Naima Sultan at the time when the marriage took place had attained puberty or not. According to the concurrent finding of the two Courts below at the time of her marriage Mst. Naima Sultan was about 14‑15 years of age. No doubt it is noted in the Mahomedan Law by Mulla that in this part of the country the puberty is presumed at the age of 15 years, but in this particular case there is evidence to the effect that in spite of the fact that Mst. Naima Sultan was near about 15, she had not attained puberty. This is what is stated by her father as well as other witnesses, whom I have no reason to disbelieve. The fact, however, that immediately after the marriage Mst. Naima Sultan did not accompany her husband and the consummation of the marriage was postponed conclusively proves that she had not attained puberty. It is the normal practice in this part of the country that when a couple who have both attained puberty at the time of the marriage are married with each other, the marriage is invari ably consummated immediately after, and if it is postponed there is always some very good reason for that. In this case the reason for non‑consummation of marriage which has been given by all the witnesses is the non‑attainment of puberty in the case of the girl, and I see no reason to disbelieve it. The girl having not attained puberty I think the father was perfectly competent to give the girl in marriage. The validity of the marriage is also proved by the dower deed itself, in which Abdul Qayum himself admitted Mst. Naima Sultan to be his legally wedded wife. In all cases in which marriage have been proved, I think the normal presumption is that those marriages have been performed according to law, and it is upon the party who wishes to establish otherwise to prove it by a satisfactory evidence. On the evidence produced I think both the Courts below were right in holding that Mst. Naima Sultan was the properly wedded wife of Abdul Qayum, and the dower dated 10th February, 1947, by which the latter had given 'the land in dispute to the former was a valid and legal document. It was next argued by the learned counsel for the peti tioners for the first time in this Court that the dower should be 'reduced to half, because Abdul Qayum died before the marriage was consummated. He has not been able to quote any authority in support of his contention. There is an authority for the view that in the case of divorce by the husband before the consummation of the marriage the dower is reduced to half, but there is absolutely no authority that in any other case much less in the case of the death of the husband, which is not a voluntary act on his part or in which the wife was got no hand, the dower should be reduced in any way. The result of my examination of the record is that I do not find any force in the revision petition, and thus see no reason to disturb the concurrent finding of the two Courts below. The petition fails and is hereby dismissed with costs. Order announced. A. H. Petition dismissed.