2016 PLP 2102 (YLR)

CH. MUHAMMAD IBRAHIM ZIA, J.

The titled appeal by leave of the Court has arisen out of the judgment of the Shariat Court dated 05.11.2014, whereby the appeal filed by the respondents, herein, has been accepted.

2. The brief facts involved in this appeal are that respondent No.1, herein, filed a suit for jactitation of marriage, declaration and perpetual injunction on 18.10.2011 in the Court of Civil Judge, Court No.II/Judge Family Court Muzaffarabad. It was averred that the plaintiff is a teenager and studying in 10th class. The defendants prepared a forged and fictitious Nikahnama dated 05.01.2009. She did not acknowledge the forged Nikahnama. The plaintiff prayed for decree of declaration cum-pepertual injunction and cancellation of the forged and fictitious Nikahnama dated 05.01_2009. The appellant, herein, also filed a suit for restitution of conjugal rights in the same Court. The learned Judge Family Court while consolidating both the suits decreed the suit for restitution of conjugal rights in favour of appellant, herein, whereas the suit filed by respondent No. 1 for jactitation of marriage was dismissed vide judgment and decree dated 13.06.2013. An appeal was filed before the Shariat Court which was accepted through the impugned judgment and the suit filed for jactitation of marriage is decreed.

3. Sardar Karam Dad Khan, Advocate, the learned counsel for the appellant after narration of necessary facts submitted that the impugned judgment of the learned Shariat Court is against law and the facts. The Shariat Court has fell in error of law while setting-aside the judgment and decree of the Family Court. According to the legally admissible evidence, it has been proved that respondent No. 1 is legally wedded wife of the appellant. The fact of contract of marriage is not only proved through oral evidence but also through the documentary evidence. The respondent, herself has relied upon the documents i.e., the statement recorded before the Magistrate, the record regarding leave from the school and the Register of contract of marriage, which has also been proved by producing marginal witnesses. He placed reliance on different opinions expressed by Muslim Scholars and also referred to the cases reported as Zahida Parveen v. Masood Khan [2008 SCR 159], Aftab Ali v. The State and 2 others [PLD 1978 Kar. 374] and Mst. Aziz Mai v. SHO, Police Station Jalapur and others [PLD 1977 Lah 432] and submitted that by accepting this appeal the impugned judgment of the Shariat Court be recalled.

4. Conversely M/s. Sadaqat Hussain Raja and Kh. Muhammad Maqbool War, Advocates, the learned counsel for the respondents while forcefully defending the judgment of the Shariat Court vehemently argued that the whole litigation is misuse of process of law and the Courts. The appellant, while violating all the moral values, abducted the respondent and in this regard, a criminal case was also registered. When the respondent, who is admittedly a school student and minor, was recovered from the custody of the appellant, she straight away denied any contract of marriage. According to the age of the respondent, if for the sake of arguments, the alleged document of marriage is deemed correct, even then there can be no legal contract of marriage as for legal contract of marriage one must be adult and competent to enter into the contract. The Shariat Court has rightly passed the judgment on sound reasons. The appellant filed groundless appeal, therefore, the same is not maintainable.

5. We have considered the arguments of the learned counsel for the parties and also examined the record made available. According to the alleged facts, the appellant claims the contract of marriage with the respondent made on 05.01.2009. The respondent stated her age before the Court as 16/17 years on 22.09.2012 which means that at the time of alleged contract of marriage her age was below 15 years. On this proposition no question in cross-examination has been put by the appellant that she has stated incorrect age, thus, according to the celebrated principle of law the age as stated by the respondent will be deemed to be correct.

6. So far as the alleged statement recorded before the Magistrate under section 107, Cr.P.C. (tendered in evidence as Annexure "PA"), is concerned, the examination of the same reveals that it does not contain the necessary details of the deposer. Neither her age, nor any mark of identification etc., has been recorded by the Magistrate. Thus, the statement on the face of it appears to be dubious. The appellant also approached the Court under section 491, Cr.P.C. and on Court's order when respondent appeared before the Court, she clearly denied any contract of marriage. She not only denied the contract of marriage but also filed a suit for jactitation of marriage in which she has clearly averred that the whole story and the documents regarding the alleged contract of marriage have been prepared while tampering with and without her free consent and intention. The appellant in his statement admitted that he is already married to one Naghma Bibi. He also admitted that on the tree leafs of the Nikah-nama, the alleged signatures of the respondent are different. Same like, one of the witnesses entered in the Nikah-Nama (Exh.DA), Muhammad Maqbool, has died since 25 years ago. It is admitted that on the document, Exh.DA, the contents, specially the date of Nikah, the names of the witnesses, the entry of identity cards Nos. etc., are different. He also admitted the registration of criminal case. Thus, from the weighty appreciation of the evidence brought on record by both the parties, it can safely be concluded that the appellant could not succeed in establishing that any valid marriage was contracted by the respondent or she was legally capable of contracting such marriage. 6(sic) According to the celebrated principle of law, marriage is a contract and for constituting the valid contract, there should be free consent of the parties competent to contact for a lawful consideration and with lawful subject as is mentioned under section 10 of the Contract Act, 1872. Under the provisions of section 11 of Contract Act, for competency of person to contract, there is a condition of attaining the age of majority. Free consent has also been defined by the law which means without coercion, undue influence, fraud, misrepresentation and mistake. All these terms have been defined by law, specially, keeping in view the peculiar facts of this case the element of undue influence as defined under section 16 of Contract Act cannot be ruled out, which speaks that undue influence means, where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of other and uses that position to obtain unfair advantage over the other. It will be useful to reproduce here section 16 of the Contract Act, 1872, which reads as follows:- "16. "Undue influence" defined.-(1) A contract is said to be inducted by "undue influence" where the relation subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain unfair advantage over the other. (2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another- (a) where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other; or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. (3) Where a person who is in a position to dominate the will of another enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall he upon the person in a position to dominate the will of the other." Nothing in this subsection shall affect the provisions of section 111 of the Evidence Act, 1872 (I of 1872)". Thus, even if the whole story of the appellant is deemed correct, despite that the possibility cannot be ruled out that the alleged contract of marriage is a result of undue influence, specially, when the girl, a student of 15 years of age has been enticed away and she was under complete control of the other party and having no approach to her parents or other family members. As the appellant was clearly in dominating position and in such circumstances, any execution of the contract, if stands proved, even then is not valid and it will be deemed to be result of undue influence, specially, when without, any delay the respondent has clearly denied of any such contract. Thus, the learned Shariat Court has rightly recalled the judgment of the trial Court which is upheld and consequently in suit filed by the respondent, while declaring the contract of Nikah as ineffective and inoperative, the decree for jactitation marriage is granted. No order as to costs. ZC/6/SC(AJ&K) Appeal dismissed.