MUSAMMAT NAFISUNNISA Vs. MIRZA MUMTAZ HUSAIN

JUDGEMENT

(1.) The suit, out of which this appeal arises, is described by the Trial Judge as the most miserable case he has ever bad to try. It is certainly not a pleasant one. The plaintiff, Mirza Mumtaz Husain, is the first cousin of the first defendant Nafisunnisa, Nafisunnisa is the daughter of Nawab Mirza, deceased. Her mother, Kaniz Banu Khanam, and her brother Mirza Khadim Husain and her uncle Mirza Kalab Hasan are the three remaining defendants. The plaintiff's case was, that he had known the first defendant all her life; that a strong affection had grown up between them and that be had endeavoured to marry her after obtaining her relatives consent; that, failing to secure this be married her secretly on the 26 of January 1917 but has never been allowed assess to her owing to the opposition of her relatives; that her relatives have since endeavoured to marry her to another man, He, therefore, instituted this suit for restoration of conjugal rights The young lady joined her relatives in signing a written statement in which the plaintiff was described as a man of bad character who had been dismissed from the Railway service. The written statement admitted that they were cousins and the fact that the plaintiff was intimately acquainted with defendant No. 1. It asserted that no marriage ceremony had ever taken place but that the plaintiff had by duress caused defendant No. 1 to sign a document in which she had admitted the performance of the ceremony although, as a matter of fact no ceremony had taken place. The suit was contested with bitterness. The facts, as found by the learned Munsif and the Additional District Judge, are as follows: On the date alleged the plaintiff and defendant No. I undoubtedly recited to each other formulae requisite for a valid marriage. The parties being Shias the formulae are Shia formulae, The acknowledgment made by defendant No. 1 of the fact of marriage was a genuine acknowledgment and was not obtained from her by duress. Defendant No. 1, as is shown by her letters, was tenderly attached to the plaintiff before the ceremony took place. Her affection for the plaintiff has continued, but owing to pressure put upon her by her mother and brother, she has in the Courts been compelled to profess an aversion which she does not feel, The finding is that these two young people married one another of their own choice and of their own free will and that the bride's relatives have restrained her against her will from going to her husband. The relatives have come here in second appeal, I will take the grounds of appeal in order. The first ground is that, on the plaintiff's own showing, the alleged nikah was to remain in operation till it was followed by another and regular nikah, and no subsequent nikah having taken place, the suit was not maintainable. It is true that the plaintiff under cross-examination admitted that, at the time when the ceremony took place between him and the defendant, he had in his mind an intention of having a public ceremony performed later with the consent of his wife's family and that he had not intended to consummate the marriage until that ceremony was performed. This circumstance, however, can in no way invalidate the ceremony. It is found that both the parties were adults and in fall possession of their faculties. The bride at the time of the marriage Was over 20 years of age. "Under the Shia Law the presence of witnesses is not necessary in any matter regarding marriage; and if a marriage were contracted by the spouses themselves or their guardians in private, it would be valid; even if there were an injunction to secrecy, that would not invalidate it, " (Ameer Ali on Muhammadan Law, Volume II, 4 Edition, page 333). There can be no doubt that the marriage was in the correct form. There is nothing in the Muhammadan Law which countenances the doctrine that a marriage which is a valid marriage can be invalidated by the desire of the parties to have a more elaborate ceremony performed later, Either the ceremony was a good ceremony, in Which case the marriage is a good marriage, or the ceremony is not a good ceremony, in which case there is no marriage. There is no provision in Shia Law for a ceremony which would create a marriage if afterwards ratified by a subsequent ceremony. Here all the conditions necessary for a valid marriage between Shias were complied with. So the parties are legally married.

(2.) The second ground is: "Because the exercise of conjugal rights being dependant upon the performance of a second nikah, the suit should have been dismissed." "If there had been a stipulation after the marriage had taken place to the effect that it would not be consummated until the lapse of a specified period, such a stipulation is valid." (Ameer Ali on Muhammadan Law, Volume II, 4th Edition, page 365). But there was no condition in the ceremony. No condition was made. The bride did not accept the marriage conditionally. Much has been made of the remark under cross-examination made by the plaintiff, but this remark is no more than an indication of his general view as to what be then hoped, He had hoped, according to him, when the ceremony was completed, that his wife's relations would eventually approve their union, and he proposed not to live with his wife until he had obtained that approval. But it is, of course, open to him, having failed to obtain that approval, to secure his wife's presence. On the findings of the Courts below, in spite of her contest in the Trial Court, she wishes to go to him.

(3.) The 3 ground is: "Because the plaintiff and the defendant No. 1 not having consented, in unequivocal terms, to a permanent and absolute union, to commence from the time of the contract, for the purpose of intercourse, no valid marriage was constituted between them." I have already dealt with this point.