SHAZADA QANUM Vs. FAKHER JUNG

JUDGEMENT

(1.) THIS partition suit of the estate of Nawab Fakhrul Mulk filed by Safdarunnissa Begum and Ors. v. Nawab Ghazi Jung and Ors. (No. 116/56F.) has been compromised and a decree in terms of the compromise was passed some months ago, except in respect of the claim of Shazada Qanum, the alleged wife of Nawab Fakher Jung. In the compromise deeds the question of her status was expressly left open. She claims by petition dated 25 -7 -51 A.D. to be a wife by Muta of Nawab Fakher Jung but claims also that her Muta was of such a nature as to confer on her rights of inheritance as wife. In other words, she maintains that her Muta marriage was for an unspecified period, or alternatively, it was for life; and that such a Muta marriage creates rights of inheritance. AH heirs of Nawab Fakher Jung except her own issue contest this and allege that her Muta marriage was temporary one; and, consequently, without any right of inheritance. I have reserved her share amounting to Rs. 11889 -1 -8 in case her status of a wife is established. In support of her contention she has adduced five witnesses and has herself gone into the witness box; in rebuttal two witnesses have been adduced and reliance has been placed on an application dated 10 -11 -1946 A.D. I have heard arguments of the learned advocates of the parties and record my opinion below.

(2.) THE learned Counsel for the Petitioner argued that P. W. 1 Muttahar Hussain has deposed that he attended the Muta ceremony, that the Muta was for an unspecified period & the dower Rs. 500; that P. W. 2 Husan Afruz Buwa has deposed that Nawab Fakher Jung had contracted a five year Muta with Ameera Qanum; that at the end of five years he let her go and said that his Muta with the Petitioner and two other Muta wives was for life but with Ameera Qanum was for five years and, therefore, ho was releasing her. The learned Counsel argued that this statement of Nawab Fakher Jung is relevant under Section 32 (5) of the Indian Evidence Act as it is a statement relating to marriage and proves that the Muta with the Petitioner was for life. Referring to the deposition of the Petitioner the learned Counsel argued that she has also deposed that her Muta was for life, and besides her P.W. 4 Karimuddin also has deposed to the statement of Nawab Fakher Jung at the time of release oil Ameera Qanum. The learned Counsel argued further that the application of the heirs to Nawab Fakher Jung filed in the Atiyat Court dated 10th Meher 1346 Fasli (Ex. A -l) though filed by the Defendants is entirely in his clients favour and proves everything which she has to prove; for, in that application the Defendants stated that among the legal heirs of Nawab Fakher Jung there were four widows of whom three were widows of Muta marriages and one a widow of a Nikah marriage; that this is a clear admission of the continuance of Muta for life; that besides the Defendants spoke of Ameera Qanum and her release after 5 years by the late Nawab and that this; indicates very clearly that the Muta with the other three wives was for life.

(3.) EXAMINING the evidence adduced by both the parties I find that really speaking only Muttahar Hussain and Shazada Qanum and Husan Afruz Buwa are the only three witnesses on behalf of the Petitioner who have deposed to her marriage being for an unspecified period or for life. As against them the two Defendants witnesses, Sheik Dawood and Syed Ali Asghar Bilgrami, ex -Subedar and ex -Member, Revenue Board, speak of the Petitioner's Muta marriage being a temporary marriage for a period of three years with several renewals. Thus here is oath against oath and in such a case it is usual to judge the story of witnesses by certain tests, namely, how far it is consistent with itself; how it has stood the test of cross -examination; how far it (its in with the other circumstances of the case and is in consonance with the facts of human experience. Keeping these tests in mind, I find Muttahar Hussain's story of witnessing the Petitioner's marriage difficult to believe; for, though he admits that in a Muta marriage no witnesses are necessary among Shias, yet he states that he was made a witness. In Moslem. Law when a marriage is attested, it is always attested by two witnesses and keeping this rule in mind and his other admission that nothing was reduced to writing he was asked in cross -examination who the other witness was; but he felt annoyed and upset and replied that How could he know who the other witness was? Tin's is strange especially as he states that the whole assembly consisted of five to seven persons including the bride and the bridegroom and clearly he should have known who among them was the other witness if ho was himself present as a witness. Again the size of the marriage assembly indicates that it was a private affair and not a single member of the bridegroom's family attended it. It is difficult to believe that to such a private celebration witnesses were called especially when Shia Law does not require any witness. His explanation that really speaking he was made a witness not to the Muta marriage but to the appointment as Vakil of the Moulvi who read the formula, is no explanation and is a distinction without difference; for when Shia Law requires no witnesses to the marriage itself, witness to the appointment of the Moulvi as Vakil or agent of the parties to read the marriage formula can hardly be deemed necessary (After discussing the evidence, the judgment proceeded): On all these grounds, I am of opinion that the evidence adduced on her behalf to prove that her Muta marriage was for an unspecified period or for life does not fit in with the other circumstances of the case and is, therefore, discredited. I, therefore, dismiss this suit. I, however, make no order as to costs in the circumstances of the case, especially as her maintenance is admittedly an obligation on the ground of custom at least on some of the Defendants themselves.