P L D 1963 (W (PLP)

4. There is no doubt that so far as the oral evidence in this case is concerned, it falls short of the standard of proof required to prove the marriage between the petitioner and the respondent Mst. Kundan, but the decision of this issue depends as to whether the judgments of the Civil Courts referred to above were admis sible to establish the marriage. The learned counsel for the petitioner relied on Mansharam Madhavdas v. Chetanram Rupchand and others (A I R 1945 Sind 32) and Mst. Muni v. Habib Khan (P L D 1956 Lah. 403). It has also been contended by the learned counsel that the A I R 1945 Lah. 23 relied upon by the lower appellate Court was not applicable to the facts of the present case. The judgment of the Civil Court that was held to be irrelevant in A I R 1945 Lah. 23, was a judgment in personam. It has been remarked in the concluding paragraph of this judgment. "I must, however, say that in answering the question I have only referred to civil cases where the actions are in personam and not those where the proceedings or actions are in rem." It is clear that this authority would be applicable to the present case only if it was held that the judgment in the restitution of conjugal rights was not a judgment in rem. The same principle has been enunciated in A I R 1945 Sind 32 in which it has been remarked that judgments in rem as defined in section 41 (Evidence Act, 1872), have a binding effect on Criminal Courts. This point has very lucidly dealt with in Mst. Muni v. Habib Khan. The facts of this case are that Mst. Muni had filed a suit on 18th of August 1955, against Habib Khan for the following reliefs:- (a) A declaration that her marriage with the defendant per formed during her minority by her maternal aunt, Mst. Chhuti, had come to an end by her repudiation on attainment of puberty a year before the suit ; (b) A declaration that the defendant had terminated the marriage six months before the suit by an oral Talaq, and in the alternative ; (c) A decree for dissolution of marriage on the ground of cruelty. During the pendency of the suit, Habib Khan filed a complaint under sections 498/380, P. P. C., against Mst. Chhuti, her sons and daughters. The Court issued process against the accused. Thereupon Mst. Muni filed an application in the High Court under section 561‑A, Cr. P. C., praying that the proceedings in Criminal Court be stayed pending the decision of the Civil Suit. The High Court declined to stay the proceedings on two grounds firstly, that so far as the declaratory decree was concerned, the same could not be regarded as a judgment in rem, but it was held that the decree for dissolution of marriage would undoubtedly be judgment in rem, but the decree even if granted would not affect the complainant under section 489, Cr. P. C., as admittedly Mst. Muni was the wife of the complainant on the day the offence under section 498, P. P. C., is alleged to have been committed. The final expression of the opinion is contained in the following paragraph :‑ "The result then of this discussion is that the proceedings in the Civil Court cannot have any effect upon the criminal proceedings, for so far as the decree for dissolution is concerned, it terminates the marriage on the date of decree and so far as the decree as to non‑existence of marriage is concerned, it will not be a judgment in rem." It is clear from this authority that a. decree of dissolution of marriage granted by the Civil Court was a judgment in rem and on the same reasoning a decree for restitution of conjugal rights would be a judgment in rem as this will conclusively establish that the defendant against whom a decree for restitution of conjugal rights is granted is the wife of the plaintiff in whose favour the decree is granted.

5. The learned counsel for the respondents urged that the matrimonial jurisdiction of competent Court as referred to in section 41 of the Evidence` Act, would not cover the judgment and decrees passed by a Civil Court in exercise of its ordinary civil jurisdiction. That the legislator intended to make the decrees of special Courts invested with the matrimonial jurisdic tion under the Indian Divorce Act only to be treated as judgments in rem. I am not prepared to give this restricted meaning to the words used in section 41 of the Evidence Act. The section runs as follows: "A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation ; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, (order or decree) declares it to have accrued to that person ; That any legal character which it takes away from any such person ceased at the time from which such judgment, (order or decree) declared that it had ceased or should cease: and that anything to which it declares any person to be se entitled was the property of that person at the time from which such judgment, (order or decree) declares that it had been or should be his property." The language of this section is very vast and whenever a decree is passed by a competent Court declaring a person to be the wife of another man such a judgment would undoubtedly judgment in rem.

7. The learned Sessions Judge has, therefore, taken an erroneous view of law in holding that the judgment of the Civil Courts in the present case was not conclusive proof of the fact that Mst. Kundan was the legally wedded wife of Subhan petitioner. I would, therefore, set aside the order of acquittal and direct that the accused respondents shall be retried by the A. D. M. Bahawalpur. K. B. A. Re‑trial ordered.