MST. MAHMUDDUN NISSAN Vs. MEHARBAN HUSAIN

JUDGEMENT

(1.) This is a second appeal arising out of a suit brought by the Appellant on the allegations that she was given in marriage by her father before she has attained the age of 15 years, that she has repudiated the marriage before attaining the age of 18 years and that the marriage has not been consummated. In the suit the husband entered defence and pleaded that the Plaintiff was over 16 years of age at the time of her marriage and that the marriage had been consummated. The trial court came to the conclusion that the Plaintiff was 13 1/2 years of age at the time of her marriage and that the Defendant was about 34 or 35 years. It also believed the Plaintiff that the marriage had not been consummated and it came to the conclusion that the Plaintiff had a right to exercise the option of puberty. The court below has come to the conclusion that at the time of the marriage the Plaintiff was above 16 years of age. It also recorded the finding in the following words.

(2.) The court below has come to the conclusion that at the time of the marriage the Plaintiff was more than 15 years of age. Principally the reason for its coming to this conclusion is that the age of the girl was given as 16 years at the time of the nikah. The court below also seems to think that the Plaintiff was not the daughter of Afzal Husain but was only the daughter of Afzal Husain's second wife by a former husband and has worked out the age on that basis. Thirdly the court below seems to think that there was some basic contradiction between the statement of the Plaintiff in regard to when the Plaintiff was born and in the statement of Afzal Husain. Lastly the court below seems to think that the mother of the girl should have been produced in order to affirm that the girl was born to her out of wedlock with Afzal Husain and was not born of the previous husband. The court below also seems to be of the view that the girl should have been medically examined and that medical evidence should have been tendered by her to show that she was above 15 years of age. In my view as I shall show there is a legal error in the approach of the court below in arriving at the finding that the girl was over 15 years of age. It becomes necessary to give a fresh finding. So far as the entry of age as 16 years in the register of nikah is concerned the explanation (given) by the father of the Plaintiff was that he thought that according to the Sharda Act the permitted age was 16 years. The court points out that the age under the Sharda Act is 14 years and not 16 years and then proceeded to say that the explanation given by the father of the Plaintiff is therefore untenable. The court below has not considered the possibilities of the Plaintiff's father himself being under the mistaken belief that under the Sharda Act the permitted age was 16 years. Moreover the court below apparently has not considered that the person to whom the girl was being married was so aged that there would be strong temptation to give her age at least as 16 years in order to lessen the inequity of her being married with so very much more aged a person than herself. So far as the paternity of the girl is concerned the plaint shows that she is described as the daughter of Afzal Husain. Nowhere in the written statement was that fact challenged nor does it appear that the husband stated that the Plaintiff was the daughter of Afzal Husain's wife from the first husband. The criticism made by the Judge of the father's evidence is that he only generally describes himself as the father of the Plaintiff and he says that the description 'father' also includes the description of a step -father. In as much as no question was raised in regard to the father's paternity, I do not see why it was necessary for him to expressly state that he was the father and not the step father. The Plaintiff went into the witness box and she definitely stated that she had another "sister who is the daughter of my mother by another husband". It seems to me therefore that it is clearly indicated in evidence that the Plaintiff was not the daughter of Afzal Husain's wife by a previous husband, and in my view there is absolutely no reason why the court below should come to the conclusion that the Plaintiff was not Afzal Husain's daughter. There should have been some clear denial of paternity either in the written statement or in the evidence of the Defendant before any such assumption in regard to the paternity of the Plaintiff being other than given in the plaint could be made and there is nothing in the evidence to warrant the court below's finding so far as I can see. In the plaint it was stated that the Plaintiff was born in 1933 in the month of October. When the father went into the witness box he stated in examination -in -chief that she was born 13 or 14 months after his marriage. That would make it July or August. It is true therefore that there is this slight variation between the evidence given by the father and the statement in the plaint. But the court below seems to have over -looked the fact that the father was deposing in 1948 several years after the birth and in stating in the examination -in -chief that the daughter was born after 13 or 14 months after the marriage he was probably speaking approximately and not with any degree of precision. That this is so is apparent for in cross -examination his first answer was that the Plaintiff was born in October 1933. The earlier statement in the examination -in -chief that she was born 13 or 14 months after his marriage roust therefore be taken to have been cleared by the statement made in the cross -examination. I do not consider that upon a correct reading of Afjal Husain's evidence that statement contradicts the statement in the plaint that the Plaintiff was born in October 1933. I do not see why it was incumbent upon the Plaintiff to have produced her mother nor for that matter why the mother should have been asked to depose that she was in fact a daughter born to her out of wedlock with Afzal Husain. The paternity of the Plaintiff was not seriously in dispute and I do not think that the mother of the girl was a necessary witness, whose absence from the witness box can raise a presumption against the age given by the girl in her deposition and in the plaint. The inference drawn from the failure of the Plaintiff to get herself medically examined should not, in my view, have been drawn in this case. The father had spoken about the age, so did the girl, the husband could not have had personal knowledge of the exact age and the entry in the register is an entry made under circumstances when it is probable that an age other than the real age was given. It is true that medical evidence can to a certain extent clear up the question of age but even the expert's evidence may not be able to fix up the age this side or that of fifteen. I do not think that in these circumstances the absence of the medical evidence becomes an over -riding matter so as to warrant the drawing of any inferences against the Plaintiff.

(3.) It is true that a decision on the question of the age of a person primarily involves a finding of fact, but in this case I think that the finding as to the age is clearly vitiated by the introduction of the question of the paternity of the girl which was never a matter, so far as I can see, directly in issue upon the pleadings and in regard to which the evidence is, in my view, one sided and in favour of Afzal Husain's paternity. I have, therefore, felt it my duty to look into the evidence. I accept the age as given on behalf of the Plaintiff, I believe her and her witnesses and reject the testimony of the Defendant and Defendant's witnesses. In these circumstances I find that at the time of her marriage the girl was under 15 years of age. That being so and inasmuch as no consummation of marriage in the legal sense of the word took place I am of the view that the suit should succeed. I accordingly set aside the decree of the court below and restore the decree of the trial court. There shall be no order as to costs.