MOHAMMAD HASAN Vs. HAFIZ ABDUL NAEEM

JUDGEMENT

(1.) The appellant filed a complaint as an aggrieved husband against his alleged father-in-law Abdul Nairn and his alleged wife Smt. Najumunnisan and her brother Abdul Aleem and her mother Smt. Sakina Bibi, and a man called Ali Asghar alias Lathi with whom Smt. Najmunnisan is said to be living at present at Ardarli Bazar, in the city of Varanasi, for offenses under Sections 494, 494/109, I. P. C. The Magistrate who tried the case acquitted the respondents. Hence, this appeal against the acquittal.

(2.) It is a matter of admission between the two sides that Smt. Najumunnisan was married to Ali Asghar alias Lathi on 12th of August, 1950. There is, however, some dispute whether there was a divorce given by Ali Asghar respondent to Smt. Najmunnisan respondent in 1959. The complainant has proved two deeds dated 31st January, 1959, one purporting to be executed by Smt. Najmunnisan and another purporting to be executed by Ali Asghar. In addition to these, there is a deed executed on 9th September. 1959, in which Ali Asghar respondent (Ext. Ka. 4) acknowledges the divorce very clearly. There are several post-cards and letters also purporting to be written by the respondent Abdul Naim to the complainant referring to the relations between the complainant and Smt. Najmunnisan. These apparently authentic, communications from the respondent Abdul Naim are only explicable on the assumption that the complainant was the lawfully married husband of Smt. Najmunnisan, after she had been divorced by her first husband Ali Asghar.

(3.) The complainant, who was an operator in a cinema at one time and is now said to be carrying on the profession of "Dua Taweez", has tried to prove by oral evidence also that he was lawfully married to Smt. Najumunnisa. He stated that his Nikah was performed with Smt. Najmunnisan, and he produced one Mohammad Muslim (P. W. 4) the Moulvi who stated that he witnessed the marriage between the complainant and Smt. Najmunnisan. The complainant also produced Abdul Bad (P. W. 6) a compounder who is said to have treated Smt. Najmunnisan before she was taken away by the respondent Abdul Naim. Although the complainant and his witness Mohammad Muslim (P. W. 4) do not technically prove the essentials of a Mohammadan marriage, consisting of a proposal made by or on behalf of a party to the marriage and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two males or one male and two female witnesses who must be sane and adult Mohammadans in such a way that the proposal and acceptance are expressed at one meeting, yet, there is sufficient evidence which could have justified a finding that the complainant and Smt. Najmunnisan were certainly living together and treated by others as husband and wife. I do not, however, consider it necessary to record a finding that the complainant and Smt. Najumunnisan were lawfully married, inasmuch as there can be some doubt, in view of the opinion expressed by the great Muslim jurist Syed Ameer Ali in his work on Mohammadan Law, Volume II, p. 192, about the validity of polygamous Muslim marriages, in these words: There is great difference of opinion among the followers of Islam regarding the extent to which polygamy or, more properly speaking, polygamy is tolerated or allowed in the Islamic system. An influential and growing section holds that the conditions under which it was permitted are so difficult of compliance that they amount to a virtual prohibition and that the circumstances which rendered it permissible in primitive times having either passed away or not existing in modern times, the practice of polygamy is in contravention of the law.