P (PLP)

MAHMOOD KHAN KHAKWANI, J.‑This is miscellaneous appeal by Mst. Lelan plaintiff‑appellant against the order of remand passed by the District Judge, Rahimyar Khan. The facts are that Mst. Lelan appellant brought a suit for the dissolution of her marriage against her husband Rahim Bakhsh defendant‑respondent by alleging that he was of bad character and he had blamed her for having immoral relations with certain persons and further that he had failed to give her maintenance allowance. The respon dent in his 'Jawabdawa' affirmed the immorality and infidelity of the appellant but denied the rest of the allegation. In accordance with the pleadings of the parties five issues were framed by the trial Court. The finding of the trial Court was that the respondent had made false accusations against the appellant of having illicit sexual intercourse with certain persons, and consequently she was awarded decree for the dissolution of her marriage. The other issues were decided against the appellants. On appeal to the District judge the case was remanded by him to the trial Court on the ground that the Court had failed to apply its mind to the doctrine of "Liars" in deciding the question of the imputation of immorality by a respondent against the appellant. The learned counsel for the appellant has argued before me that the procedure of "Liars'‑" was not a statutory provision and it could not over ride the principles of the Evidence Act. His arguments raised the question, what is "Liars"? Mr. M. Jamil in his book, Marriage and Dissolution of Marriages in Muslim Law, on pages 137 and 138 quotes the author of Radd‑ul‑Muhtar in explaining the doctrine of "Liars". The following relevant passages therefrom shall give suffi cient notion of its definition :‑-- " ....that is, the husband having accused the wife of zina, he would have been liable to the punishment of Kuzaf or slander but for this procedure, and therefore, the punishment for slander is extinguished and Lian takes its place and so far the woman is concerned, her evidence or testimony standing in the place of Hudd‑i‑zina, that is, the punishment for zinc having become extinguished Lian takes the place of the punishment for zina so far as the woman is concerned ..because to invoke God, when giving evidence is more destructive in its effect than punishment; and further, "The pillars or rooken of Lian are the evidence or testimony (foul in number), which is strengthened by the use of the oath on God and by the word Lian ; the Hookm or consequence of Lian is that after the Lian is made, it is unlawful to the husband to have sexual intercourse with and enjoy the wife ;" A quotation from M. Mohammad Yusuf Volume II page 354 in the following words elucidates further the concept of Liars. "It was, therefore, laid down that if a man accused his wife of adultery she could go to the Qazi and demand that her oath should be matched against the husband's and if he persisted in swearing that she had committed adultery the marriage should be dissolved. If a husband accuses his wife of adultery and she keeps quite and does not refer the matter to the, Qazi no separation takes place". All the jurists on Muslim Law are agreed that the fact of a husband having charged his wife with adultery will entitle her to claim divorce from the Court of Qazi, without prejudice to any proceedings for defamation that she may institute. Vide Baillie on Mohammadan Law pages 333 and 344;‑Hed. 123‑

126. It would thus appear that the doctrine of `Lian' was not only the embodiment of the substantive rule of law but it also provided principles for procedural law. Whereas the consequences of successful litigation by an innocent wife, falsely stigmatized by her husband for adult ery, would end in the pronouncement of the decree of divorce by Court, the procedure to be adopted before Qazi (of either bringing four law‑worthy eye‑witnesses to that fact of adultery or confirm ing it on oath which shall be matched with the oath of the wife) was mandatory and indispensable for the parties in pure Islamic law. The doctrine of 'Lian' thus created certain legal rights, one of which was owned by wife, to obtain judicial separation from her husband. This part of the concept was concerned with the substantive branch of law. The second, part of the concept was the method for the enforcement of the legal rights. Inasmuch as the question of the subsistence of legal right in a defamed wife was concerned it was universally recognised by our Courts. Vide 101 I. C. 261 and 110 I. C.

131. In these rulings false charge of adultery by husband was held equivalent to cruelty and the marriage between parties could be dissolved upon its proof. But the procedure prescribed by Muslim Law for establishing the legal rights arising from the doctrine of `Lian' was not permissible in our Courts for the simple reason that the Muslim Law of Evidence had been superseded by the Evidence Act. In a well‑known case, between Mst. Khatija Bibi v. Ummar Sahib it was held by their Lordship in Division Bench that the parties could not be forced to get their contentions decided on oath. Vide 110 I. C.

131. It was therefore manifest that even the Oaths Act of 1873 was not a bind ing provision of law as a substitute for the Muslim Law‑ of Evi dence. That being the true state of the existing law, the finding of the learned District judge in remanding the suit with the directions that if ' Lian ' was found, the trial Court should act according to rules of Shariat, was meaningless and contrary to the Statutory Law. It was patent from the judgment of the trial Court that `Lima' in the sense of bringing a suit for the dissolution of Marriage on the basis of false charge of adultery was established and that the issue was proved in favour of the appellant in accordance with the Evidence Act. There was nothing further left to be decided, what would be lawful, according to the concept of Lian, because the. Islamic Law of Evidence was not the legal procedure for our Courts. The judgment of the trial Court was not wanting in the sense that it was contrary to the rules of the Evidence Act and the case should not have been therefore remanded for the reasons given by the District Judge. Hence I accept this appeal, expert, and by setting aside the judgment of the District Judge, Rahimyar Khan, remand the suit to him for his fresh decision in accordance with Law. Announced. A. H. Appeal accepted.