P L D 2003 Peshawar 1 (PLP)

TALAAT QAYUM QURESHI, J.‑‑Mst. Robina Gul petitioner herein brought Suit No.9/FC of 1998 in the Court of Senior Civil Judge, Mansehra 'against respondent No.1 namely Inam Khan for jactitation of marriage, which was decreed ex parte in her favour and against respondent No. 1 vide judgment and decree dated 21‑7‑1998. Respondent No. 1 filed an application for setting aside the ex parte decree, which was dismissed by the Senior Civil Judge, Mansehra vide order dated 27‑11‑1998. He then filed Appeal No.97/14 in the Court of learned Additional District Judge, Mansehra which was dismissed vide judgment and decree dated 23‑2‑1999. Thereafter, respondent No. 1 filed Writ .Petition No.96 of 1999 before this Circuit Bench, which was accepted vide judgment dated 15‑3‑2000, the judgments and decrees of both the Courts below were set aside and the case was remanded back to the trial Court for decision afresh on merits within two months. After remand the suit was contested between the parties and was ultimately decreed by the Senior Civil Judge/Judge Family Court, Mansehra vide judgment and decree dated 27‑4‑2000. Being aggrieved with the said judgment and decree respondent No. 1 filed Appeal No. 18/17C of 2000 in the Court of learned Additional District Judge, Mansehra, who vide his judgment and decree dated 17‑2‑2001 accepted the appeal, set aside the judgment and decree dated 27‑4‑2000 and dismissed the suit of the petitioner: Hence this writ petition by the petitioner with the prayer to declare the impugned judgment and decree dated 17‑2‑2001 passed by the learned Additional District Judge, Mansehra being without jurisdiction, without lawful authority and of no legal effect and prayed for restoration of the judgment, and decree dated 27‑4‑2000 passed by the Senior Civil Judge, Mansehra.

2. Mr. Khan Afzal, the learned counsel representing the petitioner argued that petitioner was married with one Iqtidar on 7‑12‑1991 and the Nikah Nama was placed on record as Exh.P.W.1/1. Out of the said wedlock one daughter namely Zarqaish Iqtidar was born on 30‑10‑1992. The Birth Certificate is Exh.P.W.1/4. Said Iqtidar, the husband of the petitioner was murdered by respondent No.1 on 17e'3‑1992 and F.I.R. No.328 (Exh.P:W.1/3) was registered against him in Police Station City Bannu. On the death of Iqtidar the properties left by him devolved upon the petitioner and his daughter namely Zarqaish Iqtidar and Mutation No. 10053 (Exh.P.W.1/6) and Mutation No.10054 (Exh.P.W.1/8) were attested in their favour on 24‑1‑1993. After the death of Iqtidar, his mother Akhtar Begum also died and out of properties left by her granddaughter Zarqaish Iqtidar inherited her legacy as is clear from Fard Jamabandi Exh.P.W.1/10. National Identity Card issued to petitioner on 2‑2‑1992 also shows that she was wife of Iqtidar.

3. That after the murder of Iqtidar, she contracted second marriage with Rasool Khan and the said marriage is still valid and subsisting. Out of the second wedlock three children namely Hassan Rasool, Komal Rasool and Afsar Yar were born on 8‑6‑1998. 16‑10‑1999 and 5‑6‑2001 respectively.

4. It was also argued that with the involvement of respondent No. 1 in murder case of Iqtidar, he remained absconder for 5‑1/2 years and after keeping mum for almost 6 years and after getting himself released on bail the respondent No. 1 on 2‑10‑1997 claimed the petitioner to be his legally wedded wife and in order to establish his claim he filed suit for restitution of conjugal rights against the, petitioner, which was dismissed vide judgment and decree dated 8‑11‑1997 by the Judge Family Court, Bannu. He preferred appeal in the Court of learned Additional District Judge, Bannu which was allowed vide judgment and decree dated 3‑6‑1998 and the case was remanded to the trial Court for providing opportunity to the parties to record their respective evidence. The petitioner filed suit for jactitation of marriage in the Court of Senior Civil Judge/Judge Family Court, Mansehra who after recording evidence of the parties decreed her suit. On appeal filed by respondent No. 1 not only the judgment and decree passed by the learned trial Court in favour of petitioner was set aside, but suit filed by her was also dismissed on wrong premises.

5. It was also argued that respondent No.1 had failed to prove his Nikah with the petitioner. He failed to prove that Muhammad Parvez (D.W.3), who was first cousin of respondent No.1 was authorised by the petitioner to act as her "Vakeel" at the time of alleged Nikah, which took place in the house of father of the petitioner. It was not explained as to why the near relatives of the petitioner were excluded for appointment of "Vakeel" for giving consent on her behalf at the time of her Nikah. Neither two witnesses regarding the authorisation of aforesaid "Vakeel" were produced nor there were any other person produced to show that the petitioner had ever given her consent to Muhammad Parvez (D.W.3) for conveying consent for the purpose of Nikah with respondent No. 1.

6. It was also argued that the witnesses produced by respondent No. 1 were close relatives and their evidence was not reliable.

7. It was also argued that the claim of respondent No. 1 that Mst. Zarqaish was born out of the wedlock of respondent No. 1 with the petitioner was also false and based on mala fide. Mst. Zarqaish was daughter of late Iqtidar and this fact has been established in a case titled "Malik Murtaza v. Malik Nasir Khan", decided on 16‑9‑1997 by learned Senior Civil Judge. Bannu in which Mst. Zarqaish has been held to be the legal heir of deceased Iqtidar Khan and petitioner has been held to be his widow. The said order has attained finality as the same was not assailed before the higher Court by any person including respondent No.

1. It was prayed that the judgment and decree passed by the learned Additional District Judge, Mansehra be set aside and the judgment and decree passed by the learned trial Court be restored.

8. On the other hand Mr. Shakil Ahmad, Advocate the learned counsel representing respondent No. 1 argued that the judgment and decree passed by the learned Additional District Judge, Mansehra were based on proper appreciation of evidence and law applicable to the case. The respondent No. 1 through convincing evidence had proved that Mst. Robina Gul the petitioner was his legally wedded wife having been married on 15‑6‑1991 at Bannu and out of the wedlock a daughter namely Mst. Zarqaish was also born.

9. It was also argued that the petitioner, who was wife of respondent No. 1 left his house on 9‑1.‑1991 without his consent and permission and if she contracted marriage with Iqtidar or thereafter with Rasool Khan, the same were not only illegal but were un‑Islamic also. The learned Appellate Court has properly appreciated this legal position, therefore, the judgment and decree passed by the learned Appellate Court need no interference by this Court.

10. We have heard the learned counsel for the parties at length and perused the record.

11. In this case the question which needs determination is as to whether Mst. Robina, the petitioner is the legally wedded wife of Inam Khan respondent No. 1 or not? '

12. In order to prove her case the petitioner examined Maqboolur Rehman, who placed on record power of attorney Exh.P.W.I/1 and stated that Nikah of petitioner, was solemnised with Iqtidar Khan on 7‑12‑1991. Copy of Nikahnama was placed on record as Exh. P. W.1/2. Iqtidar Khan was murdered by respondent No.1 and F.I.R. was registered at Police Station City Bannu, copy whereof is Exh.P.W.1/3. Said Iqtidar and Mst. Robina lived as husband and wife and out of this wedlock a daughter namely Zarqaish was born. Birth certificate was Exh.P.W.1/4. Discharge slip of the Hospital is Exh. P. W.1/5. Since Iqtidar Khan was murdered, therefore, property left by him devolved upon petitioner and his daughter Mst. Zarqiash and mutations in this respect were attested in their favour, copies whereof were placed of record as Exh.P.W.1/5 to Exh.P.W.1/8. Copies of Jamabandis Exh.P.W.1/9 to Exh.P.W.1/16 and Fatwa dated 6‑10‑1997 regarding legacy of Iqtidar Khan is Exh.P.W.1/7 Copy of Mutation No. 158 was also placed on record as Exh.P.W.1/18, Naqal Daily Diary is Exh.P.W.1/18‑A. Forms for identity card of petitioner Exh.P.W.I/19 and copy of Identity Card is Exh.P.W.1/20. Copy of the Judgment passed in murder case of Iqtidar was exhibited as Exh.P.W.1/21. He stated that after the murder of Iqtidar Khan the petitioner contracted second marriage with Rasool Khan and she is living with him as his wife.

13. In order to prove his marriage with the petitioner, respondent No. 1 examined himself as D. W.1. He stated that his marriage with petitioner took place on 15‑6‑1991. Nikah was solemnised in the house of the father of the petitioner at Bannu. She lived for six months as a wife with him and it was on 1‑12‑1991 that she eloped with Iqtidar Khan, who was murdered by the people of his community on 17‑3‑1992. He was charged for the murder of Iqtidar Khan and later on brothers of Iqtidar Khan having found him innocent compromised the matter and after his release from Jail on the basis of said compromise he filed suit for restitution of conjugal rights in the Family Court at Bannu which is still pending final adjudication. He further stated that out of the said wedlock one daughter namely Mst. Zarqiash was born and she is his legitimate daughter. Maulvi Said Rasool was examined as D.W.2 who stated that he solemnised Nikah between the parties and a sum of Rs.5,000 was fixed as dower and the Nikah was oral and nothing was reduced into writing. Muhammad Parvez was examined as D.W.3. He stated that petitioner had appointed him, as her Wakeel and her Nikah with respondent No. 1 was solemnised on 15‑6‑1991 in presence of her relatives and witnesses. Engineer Khan and Abdul Hamid were examined as D.Ws. 4 and

5. They were the witnesses of Nikah. They stated that Nikah of the parties was solemnised by Maulvi Said Rasool in their presence.

14. The Nikah has been defined in section 250 of Muhammadan Law, which reads as under:‑‑ "Marriage (Nikah) is defined to be a contract which has for its object the procreation and the legalizing of children."

15. Various Islamic Scholars have also interpreted the word 'Nikah' Maulana Mujeebullah Nadvi in his Book titled 'Islami Fiqha' defined the word 'Nikah' at page 12, Volume II as under:‑‑

16. Similarly as per Durre‑Mukhtar, page 58, Volume II the word 'Nikah' means:‑‑

17. In 'Urdu Daira Maarif Islamia' at page 439, Volume 22, published by Danish Gah Punjab the word 'Nikah' was defined as under:‑‑

18. Rtd. Justice Dr. Tanzeel‑ur‑Rehman in his Book titled as 'Majmooa Qawaneen Islam' at page 56, Volume 22 also defined the term 'Nikah' in the following words:‑‑

19. Like other transactions for the proof of Nikah the existence of two competent witnesses are required in whose presence the offer and acceptance (Ijab‑o‑Qabool) have taken place. In this regard the following verse of Holy Qur'an can be quoted with authority:‑‑

20. Maulana Jamil Ahmad Sahib in Sharha Urdu of "Ashraful Hidaya" it page 8 of Volume IV while giving reference of a Hadith has also stated that the existence of two adult Muslims and independent witnesses at the time of performance of Nikah is necessary. The relevant portion of which is quoted below:‑‑

21. In a Book titled as 'Adaab‑ul‑Qazi' at page 197, Volume III published by 'Idara Tahqiqat‑e‑Islami Jaamia Islamia Islamabad'. Quotation from Hazrat Umar Bin Khattab was cited which reads as under:‑‑

22. In Mazahir Haq (Jadid) (Sharha Mishkat Sharif Urdu) at page 280 stated as under:‑‑

23. At page 282 it was further mentioned:‑‑ At page 292 of the said Book the following Hadith has been quoted.‑‑ At page 293 of the same Book the following words have been used in the explanation:‑‑

24. No doubt in the case in hand respondent No. 1 produced Engineer Khan (D.W.4) and Abdul Hamid (D.W.5) who were witnesses of the alleged Nikah but it was admitted by Muhammad Parvez (D.W.3) that not only he was first cousin of Inam Khan, respondent No.1, but Engineer Khan and Abdul Hamid were also his first cousins. The respondent No.1 could not produce any independent witness to prove .that his Nikah with petitioner was solemnised on 15‑6‑1991. The three witnesses mentioned above were his close relatives being first cousins and being interested witnesses deposed in his favour, they cannot be termed as "Adil witnesses"' therefore, their statements cannot be relied upon.

25. It is admitted fact that petitioner being female was not present in person at the time of Nikah in the Nikah gathering. It has been alleged that her Nikah was performed with the consent of her Vakeel namely Muhammad Parvez. No doubt as per Sharia Nikah of female can be solemnised through her Vekeel and all the Islamic Schools of thought recognised Nikah performed through Vekeel as valid. Maulana Mujeebullah Nadvi at page 644, Volume II of his Book "Islami Fiqha" defined the meaning of ' Wakalat' in the following words:‑‑ At page 646 of the said Book the author observed as under:‑ He further explained the term 'Wakalat' at page 648 of the said Book in the following words:‑‑ It was further explained that:‑‑ In 'Urdu Daaira Maarif Islamia' at page 21, Volume 23, published by Danish Gah Punjab the word 'Wakalat' has been defined as under:‑‑

26. The term 'Wakeel' has not been defined in the Muslim Family Laws Ordinance, 1961. The purpose seems to be as the female is not to appear in the Assembly herself, therefore, she should be represented by male. The Wakeel generally is representative of the party appointing/nominating him. A Wakeel representing female cannot be a man from the street because he is to perform Ijab‑o‑Qabool, therefore, keeping in view the Islamic principles and the general practice prevalent in our society the Wakeel of the female has to be one related to her in the prohibited degree. It is normally maternal /paternal uncles, sister's husband, brother, father etc. A stranger cannot represent a female in Nikah. A girl speaks at the time of Nikah through her Wakeel. This practice is in vogue to preserve the honour of the family of the girl. Another reason for observing this practice is that it excludes the possibilities of marriage through duress, compulsion and fraud.

27. It has been alleged that she had appointed Muhammad Parvez D.W.3 as her Wakeel to convey her consent to Nikah Khawn, who solemnised the Nikah. There is nothing on record to indicate that said Muhammad Parvez was appointed as her Wakeel by the petitioner in presence of two witnesses. Not a single person has been produced by respondent No.1 to prove that Mst. Robina had appointed Muhammad Parvez as her Wakeel. Muhammad Parvez was hardly of 25/26 years of young boy. He was neither the relative within the prohibited degree nor her near relative nor was the resident of the same locality, therefore, the question of his appointment as Wakeel would not arise at all especially when the marriage was arranged on and had allegedly taken place in the house of the petitioner where her father and other relatives were also present. When Muhammad Parvez had no lawful authority to give consent on behalf of the petitioner, then how he could perform Ijab‑o‑Qabool. The consent of the petitioner for the marriage could not be proved by respondent No.

1. It is by now established law that when the consent of the woman was missing or secured through duress and pressure, the said marriage cannot be held to be a valid marriage.

28. A pro forma for Nikah has been prescribed in Muslim Family Laws Ordinance, 1961 and Registration of Nikah has been made compulsory under section whereof. Serial No.7 of Column I of Nikahnama provides for appointment of Wakeel of bride, the same is to be witnessed by two persons. Though the alleged Nikah between the parties was solemnised at Bannu City, which is a big town, yet the same was not registered as per section 5 of the Muslim Family Laws Ordinance, 1961, which also lends support to the case of petitioner that Nikah between the parties had not been solemnised. Had the same been solemnised, the same would have been registered in accordance with the above mentioned provisions of law.

29. There is no evidence available on record to indicate that after alleged Nikah the parties ever resided together as husband and wife. The plea of respondent No. 1 was that after Nikah, the petitioner lived with him and it was on 1‑12‑1991 that .she left his house and eloped with Iqtidar Khan was not proved by him. Not a single witness was examined by respondent No. 1 to prove that she lived with him in his house as his wedded wife and any issue was born out of their wedlock. Neither any proper proof of marriage has been brought on record nor the proof of birth of child out of the said wedlock was available.

30. On the other hand the petitioner produced her Nikahnama Exh. P. W.1 /2 to show that her Nikah with Iqtidar Khan was solemnised on 7‑12‑1991 and out of the said wedlock a daughter namely Zarkash Iqtidar was also born and her Birth Certificate was placed on record as Exh.P.W.1/4 and after the murder of Iqtidar Khan not only the petitioner, but her daughter Mst. Zarkash Iqtidar also inherited property from him. The daughter of the petitioner namely Mst. Zarkash Iqtidar had also inherited property from her grandmother Mst. Akhtar Begum (mother of Iqtidar Khan) and in this regard various mutations were attested in their favour. Copies of which have been exhibited as Exh.P.W.1/6 to Exh.P.W.I/8 and Exh.P.W.l/18. Copy of Identity Card showing the petitioner as wife of respondent was also placed on record as Exh.P.W. 1/20. Thereafter, the petitioner married with one Rasool Khan and her Nikah with Rasool Khan was solemnised at Islamabad. It is also on record that out of wedlock with Rasool Khan the petitioner had given birth to three children, who are alive and living with their parents.

31. We tend to accept the writ petition in hand for the following reasons:‑‑ Firstly, the respondent No. 1 failed to prove through independent evidence that Mst. Robina was his legally‑wedded wife. The D. Ws 3 to 5 were his first cousins. They were interested witnesses and were not 'Adil' witnesses. Secondly, respondent No. 1 failed to prove that Mst. Robina had ever appointed Muhammad Parvez (D.W.3) as her Wakeel. Said Muhammad Parvez is neither her relative in the prohibited degree nor has any other relation with her nor belonged to the locality, where petitioner was residing at the time when marriage allegedly took place. There is no reason as to why she did not appoint any of her near relatives as her Wakeel and opted to appoint Muhammad Parvez, who was stranger, as her Wakeel. Not a single witness was produced that she appointed Muhammad Parvez as her Wakeel in his presence. Thirdly, respondent No. 1 did not claim Mst. Robina as his wife since 1‑12‑1991 till 2‑10‑1997. He kept mum for such a long period. He did not bother to lodge any report regarding the abduction or disappearance of the petitioner. It was on 2‑10‑1997 that she for the first time claimed her to be his wife when he filed suit for restitution of conjugal rights before the learned Judge Family Court, Bannu. Fourthly, Said Rasool D.W.2, who allegedly performed Nikah admitted in cross‑examination that he did not know Arabi. He had no 'Sanad' or certificate from any religious Madrassa and he had neither seen nor heard the petitioner at the time of performing the alleged Nikah. His evidence can also not be relied upon because having no Arabic knowledge how he could perform Nikah of two Muslims. Fifthly, Mst. Robina repudiated her marriage with respondent No.

1. The petitioner has successfully proved that' she was first married with Iqtidar Khan, the Nikahnama of her marriage with Iqtidar Khan was placed on file as Exh.P.W.1/2 without any objection from the other side. The Birth Certificate of Zarkash Iqtidar Exh.P.W.1/4 and various mutations whereby not only petitioner but her daughter also inherited property from Iqtidar Khan and his mother were placed on record as Exhs. P. W.1/6 to 1/8 and Exh. P. W.1/18. She also placed on record her National Identity Card Exh.P.W.1/20 which also shows that she was wife of Iqtidar Khan (late). Sixthly, she contracted second marriage with one Rasool Khan with whom she was living as wife and out of such wedlock she has given birth to three children namely Hassan Rasool, Komal Rasool and Afsar Yar, who are still alive and are living with her. We, therefore, accept the writ petition in hand, set aside the impugned judgment and decree dated 17‑2‑2001 passed by the learned Additional District Judge, Mansehra and restore that of the learned Senior Civil Judge/Judge Family Court, Mansehra dated 27‑4‑2000 with no orders as to costs. Q.M.H./M.A.K./592/P Petition allowed.