P (PLP)

Generally the medical evidence about age is not a reliable proof, in cases which have no other defendable evidence in support of it. As a corroborative piece of evidence, the medical test can be weighty. Mustafa Khan, for Appellant. Saleem Aslam, for Respondent. JUDGMENT‑.‑This second appeal is against the judgment and decree of the District Judge Rahimyar Khan dated the 16th December, 1950 reversing the judgment and decree of the trial Court. Mst. Fazal Bibi plaintiff‑appellant brought a suit for the dissolution of marriage against Habib Ullah defendant‑respondent by, alleging that she was married with the defendant by leer elder brother Fazal Mohammad when she was aged 3 to 4 years. She further alleged that on attaining puberty she repudiated the marri age on the 24th October 1949 and the was consequently entitled to a decree for the dissolution of her marriage. The defendant respondent, in his written reply, averred that at the time of bringing the suit she was above 18 years of age and that the marriage had also been consummated. In accordance with the pleadings of the parties the following issues were framed by the trial Court :‑

(1) was the plaintiff below 18 years and she had repudiated the marriage ? (2) The parties have had secret `sexual intercourse and the marriage was consummated. Both these issues were decided in favour of the plaintiff by the trial Court. On appeal to the District judge, the finding on issue No. 1 was reversed and the second issue was left undetermin ed. I have heard the arguments of the learned counsel for parties and have‑also scrutinized the evidence on the record. A prelimina ry objection has been raised by the learned counsel for the respondent that section 1 clause 2 of the "Act for the Enforcement of Islamic Shariat 1951" had retrospective effect and consequently the remedy sought by the appellant under section 2 clause 7 of the Act VIII of 1939 relating to suits for dissolution of marri age by women married under Muslim Law, had been extinguished. Section 1 clause 2 reads in the following words:‑

"This Act shall come into force forthwith ". There are no specific provisions in the Act, either repealing the Act VIII of 1939 or creating the application of the Shariat Act retrospectively. The Section 1 clause 2 of the Act is clearly meant for the new cases which were not brought before Courts at the time of its enforcement. A statute cannot be construed so as to conflict with its language or ifs plain intentions. Unless the intention is clearly made manifest or the object of the Act necessarily refers its application to rights existing prior to its coming‑into force, the retrospective operation of a statute cannot be allowed. This principle of law is generally accepted and was fully enumerated in A. I. R. 1931 Cal. 321 ; A. I. R. 1933 Born. 262 and in a recent case decided by the Division Bench of the Lahore High Court reported in P. L. D. 1950 Lah.

221. The Shariat Act contains no express provision for its retrospective' application and the language of its section 1 clause 2 is not meant for suits instituted before its enforcement. Further the Shariat Act has also not repealed the Act VIII of 1939 which must continue to exist, yet for another simple reason that section 2 of the Shariat Act declares that the subjects enumerated therein shall be decided according to the Personal Law of Muslims, whereas Act VIII of 1939 in its preamble purports "to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under Muslim Law" and it thus embodies the personal Law of the Muslims in that respect. I therefore do not accept the contention raised by the learned counsel for the respondent. The main evidence adduced by the appellant is of the Birth Register tendered in evidence by Farzand Ali (P. W.) Chaukidar. A copy of the relevant entry is Ex. P. A. according to which a daughter was born to Khair Din son of Kalu on the 9th May 1933. Dr. Masood Ali (P. W.) stated that he examined the appell ant on the 24th October 1949 and in his opinion her age on that date was about 17 years. According to Ex. P. A. the age was 16 years 6 months. In rebuttal to this evidence, the respon dent produced Ex. D. A. a copy of the counterfoil of the Register Nikah Khani. According to Ex. D. A. the age of the appellant at the time of her Nikah which was performed on the 12th March 1.941, was 10 years, and at the time of the institution of the suit it was 1.8 years and 10 months. The rest of the evidence produced by the parties is oral and not of much value. Therefore the decision of the issue mainly depends upon the selection of the two sets of documentary proof. On behalf of the respondent it is urged that in the Birth Register the name of the daughter of Khair Din is not mentioned, and in their 1llaqa there are more than one Khair Din. Farzand Ali (P. W.) stated that the name of a newly born child is generally not stated. There is no evidence on the record showing that there is another Khair Din son of` Kalu living in the Illaqa. Khair Din son of Kalu is only alias Khairato. It is also on the record that Khair Din had only two daughters. If Ex. P. A. was about the elder one than the appellant was definitely of lower age than what was represented in Ex. P. A. If however appellant was the younger daughter then Ex. P. A. was proof of her age. In both ways keeping Ex. P. A. in view, her age at the time of the suit was below 18 years. This fact was corroborated by the evidence of Dr. Masood Ali. Generally the medical evidence about age is not a reliable proof, in cases which have no other defendable evidence in support of it. As a cor roborative piece of evidence, the medical test can be weighty. It is manifest that Ex. P. A. is supported by the evidence of Dr. Masood Ali. There is a wide gulf between the evidence of Pareha Nikah Ex. D. A. and the evidence of Birth Register Ex. P. A. The obvious difference between the two sets of evidence may be crystalized in the manner that the fact in dispute was recorded in Ex. P. A. immediately after the occurrence of birth, while in Ex. D. A. the basis of calculation was the recollection of past event for about 10 years. Evidently there were no chances of error in the preparation of Ex. P. A. but possibilities of mistaken calculation could exist at the time of entry made in Ex. D. A. The learned District judge did not weigh this evidence and failed to separate the chaff from the grain. Hence necessity has arisen for this Court for interference and for the finding that Ex. P. A. was more dependable than Ex. D. A. The finding of the District judge about issue No. 1 is consequently reversed and, the finding of the trial Court is upheld: On the second issue the defendant produced Munshi and Ghulam Ahmad witnesses who stated that one day at evening time they had seen the parties having sexual intercourse in a field. This appears to be an impro bable story which can be invented at any time, and I find no reason to interfere in the finding of the trial Court; Hence there being no proof of consummation of the marriage, the plaintiff appellant is entitled to the award of decree in her favour. Hence the appeal is accepted with costs and by reversing the judgment and decree of the first Appellate Court the judgment and decree awarded by the trial court is upheld. Announced. K.M.A Appeal accepted.