SAJA Vs. AHAD SHEIKH & ORS

JUDGEMENT

(1.) The question that has been referred to the Full Bench for decision is: What would be the status of a girl for whom a husband has been brought into the family by her mother in pursuance of a direction of her deceased husband, i. e. whether such a daughter is entitled to the status of a khana nishin dukhtar of her deceased father.

(2.) The main facts giving rise to this reference are as follows:-

(3.) We have heard the learned Counsel for the parties in this case and have examined the record. It appears that the learned Sub-Judge, Anantnag, in arriving at his conclusion was mainly influenced by a decision of His Highness in Mst. Khatji v. Nabir (dated I5th April, 1937) in a mutation appeal cited in the Digest of Customary Law of Kashmir by Pt. Nila Kanth Ganjoo at pages 81-82. The effect of this decision is that even a mother could be keeping her daughter in the house and bringing a husband for her into the family make her a khana nishin dukhtar. It also appears that the decisions of this Court bearing on this point had not been brought to the notice of the learned Sub-Judge. The learned District Judge has, however, in his judgment referred to a ruling of this Court reported in I, Jammu and Kashmir L. R. (1946) 254 in which it had been held that daughter can be khana nishin dukhtar only when she and her husband live with her father in his home. Having rightly accepted guidance from this ruling the learned District Judge has made a futile attempt to reconcils this ruling with the decision of His Highness in mutation proceedings, Mst. Khatji v. Nabir. I shall advert to this mutation case later.