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Altaf HussaIn Vs. Nasreen Zahra - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 381 of 1976
Judge
Reported inAIR1978All515
ActsEvidence Act, 1872 - Sections 43, 45 and 165; Special Marriage Act, 1954 - Sections 13 and 13(2); Code of Civil Procedure (CPC) , 1908 - Order 18, Rule 17
AppellantAltaf Hussain
RespondentNasreen Zahra
Appellant AdvocateA.Q. Farooqui, Adv.
Respondent AdvocateS.H.S. Abidi and ;Rajeshji Verma, Advs.
DispositionAppeal dismissed
Excerpt:
family - validity of marriage certificate - section 43 of evidence act, 1872 and section 13 of special marriage act, 1954 - marriage certificate deemed to be conclusive evidence of the fact provided parties were present before the marriage officer - dispute regarding validity of marriage - plaintiff challenged marriage and filed a suit for declaration that he was not married to defendant - government handwriting expert verified that signature of defendant on marriage certificate was forged - whether his report could be read as evidence or not - evidence of other witnesses was corroborated by the evidence of plaintiff's father and that of handwriting expert - held, plaintiff's case was proved. - - in other words the contention was that there was sufficient, reliable and.....a. banerji, j.1. the plaintiff nasreen zahra's suit for a declaration that she is unmarried and her marriage never took place with the defendant before the district marriage officer, aligarh, was decreed by the 3rd additional district judge, by his judgment dated the 30th october, 1976. the defendant altai hussain has filed this first appeal.2. the plaintiff's case briefly stated, is as follows : she belongs to a highly respected family of aligarh. she is unmarried and lives with her father, she was studying in the b. a. (final) class in the abdullah girls college, aligarh and had discontinued her studies for about a year. she was never married with the defendant nor she ever signed the marriage register in token of the marriage with the defendant. the latter was known to her father and.....
Judgment:

A. Banerji, J.

1. The plaintiff Nasreen Zahra's suit for a declaration that she is unmarried and her marriage never took place with the defendant before the District Marriage Officer, Aligarh, was decreed by the 3rd Additional District Judge, by his judgment dated the 30th October, 1976. The defendant Altai Hussain has filed this First Appeal.

2. The plaintiff's case briefly stated, is as follows : She belongs to a highly respected family of Aligarh. She is unmarried and lives with her father, She was studying in the B. A. (Final) Class in the Abdullah Girls College, Aligarh and had discontinued her studies for about a year. She was never married with the defendant nor she ever signed the marriage register in token of the marriage with the defendant. The latter was known to her father and was a friend of her sister's husband, Farhatullah Khan, The defendant wanted to blackmail her father by defaming him and her also. He had sent a paigham to her father with a mala fide motive and when told that the defendant did not deserve to be married with the plaintiff on account of family status and position the defendant had threatened her father with dire consequences. He was an uneducated person and belonged to a family whose status was considerably lower than that of the plaintiff's family, Shri Zia A.K. Sherwani approached her father on 15th Nov., 1974 and he had informed her father that the defendant had arranged to secure a Marriage Certificate through Shri Sudhakar Pachori, Advocate and Marriage Officer, Aligarh and had also shown him the alleged Marriage Certificate. It was a forged document and did not bear her signature. Shri Zia A.K. Sherwani had also threatened her father that the plaintiff would be forcibly taken away by the defendant. The defendant and his friends had conspired together to cast reflections on her character and conduct and this had constituted a serious danger to her reputation and damage for any future prospects of befitting marriage.

3. Altaf Hussain in his written statement took the plea that the suit was not maintainable for two reasons, viz., the plaint was not properly signed and verified according to law and secondly, the court had no jurisdiction to try the suit or grant any relief as the plaintiff was the legally wedded wife of the defendant under the provisions of the Special Marriage Act, 1'954. His case further was that the plaintiff was 23 years old and a person of mature mind and understanding and had of her own free will and consent delivered to the Marriage Officer a joint notice of intended marriage under the provisions of the Special Marriage Act on the 13th June, 1974. They had been married before the Marriage Officer, Aligarh, on the 23rd July, 1974 and in the presence of three respectable witnesses, viz.. Mohammed Ali Khan, S. Ahmed All and Zia A.K. Sherwani. Their statements were recorded in the presence of the plaintiff and the defendant and they had also signed on the Marriage Register and on the three copies of the Marriage Certificate. The plaintiff and the defendant had also put their signatures on the same. The Marriage Officer had also made the requisite entries in the Marriage Register at serial No. 18. All the formalities of a legal marriage under the Special Marriage Act, 1954 had been done. The plaintiff had thereafter been pressurised by her father when she went to his house on 15th September, 1974. Her father had filed a complaint against the defendant in the court of Munsif-Magistrate Havali and it was dismissed on 14th April, 1975. A complaint by the defendant under Section 498, I. P. C. had also been dismissed by the same court on 23rd July, 1975. A revision filed against the above order is pending. The younger sister of the plaintiff, Neelofur alias Shahida, also got her marriage solemnised under the Special Marriage Act with one Shamshuddin Hussain on 12th April, 1975 before the Marriage Officer, Aligarh.

4. The trial court framed the following issues:--

1. Is the plaintiff legally wedded wife of the defendant If so, is she not entitled to the declaration ?

2. Has the Court no jurisdiction to try this case ?

3. To what relief, if any, in the plaintiff entitled ?

5. The trial court held that the court had jurisdiction to try the suit under issue No. 2. It held that the plaintiff was not married to the defendant and answered the first part of the issue No. 1 in the negative. The Court held that she was entitled to the declaration sought under the second part of issue No. 1. Consequently, she was granted the relief prayed for by her.

6. Learned counsel for the appellant at the very outset stated that the appellant was not now keen to have her back but the finding that the signatures on the Marriage Register, Marriage Certificate were not hers be set aside. In other words the plea was that the appeal may be dismissed with the finding modified as indicated above. This contention is not acceptable for the reason that if the finding was modified the appeal would succeed and there would be no question of dismissing the appeal. If the finding was that the disputed signatures were made by her then the conclusiveness of the evidence under Section 13(2) of the Act would be there, It would mean a valid marriage. Any modification of the findings arrived at by the court below could be made only after a full hearing and consideration of the evidence on the record. Learned counsel thereupon stated that he would press the appeal and placed the material on the record for the consideration of the court.

7. The main argument in this appeal was that the plaintiff was legally and validly married to the defendant and in view of the provisions of Section 13(2) of the Act was precluded from challenging the said marriage. He further contended that the report of the handwriting expert Aurad Hussain Rizvi PW 1, on which the Court below relied, was inadmissible In evidence. The third contention was that the court below had erred in not allowing the cross-examination of Shri Rizvi PW-1, when he was recalled under the provisions of Order XVIII Rule 17 C. P. C. Apart from the above, entire judgment of the Court below was criticised as based on misreading and misconstruing of evidence and drawing incorrect inferences from the same. In other words the contention was that there was sufficient, reliable and independent evidence on the record to warrant a finding that the plaintiff was legally and validly married to the defendant.

8. The first point is in regard to the report Ext. 12. It was contended that the said report was not admissible in evidence for the reason that it was not obtained in a proceeding initiated by the Court trying the suit. It was a report submitted to a criminal court in a proceeding initiated by that Court. The report was that of the Government handwriting expert no doubt but there was no material on the record that the specimen signatures were of the plaintiff nor was there any evidence that these very signatures were sent for comparison.

9. It was contended that the report under the circumstances could not be read in evidence. I am not impressed by this argument at all. Consequent upon the complaint made by the father of the plaintiff criminal proceedings were started. The specimen and the disputed signatures were sent to the handwriting experts and they had submitted a report to the criminal court in a proceeding against the defendant and four others under Sections 466, 468 and 471 I. P. C. A certified copy of the report, Ext. 12, was filed in this case. Sri Aurad Husain Rizvi, P. W. 1 was examined in this case to

prove the said report. He proved the report which was the opinion of three handwriting experts of the Forensic Science Laboratory, C. I. D., Lucknow, including himself. No provision of law could be cited under which the report, Ex. 12, was inadmissible in evidence. It is true that the report was not made at the instance of a party in this suit. It was the report made by the Government I Handwriting Experts in a criminal case. It was a piece of evidence which could be relied upon by a party in the suit,

10. It was then contended that there was no evidence on record to prove as to how and when the specimen signatures were obtained and further there was no evidence to show that the specimen signatures which were so obtained were the ones which were sent to the handwriting experts, These contentions are being mentioned only because they were raised but in my opinion, these contentions have no merits at all. The defendant appellant nowhere raised the plea in the court below that the specimen signatures which were before the Government Handwriting Experts were not the signatures of the plaintiff. Consequently, the entire argument on this basis was misconceived. No questions were asked of the plaintiff in this regard. Nor was any question asked as to how and when the specimen signatures were obtained and sent to the Handwriting Experts. The court below in its judgment has clearly mentioned that it had sent for the record of the criminal court in regard to the obtaining of specimen signatures and sending down the same along with the disputed signatures to the Government Handwriting Experts. The court below has recorded that the specimen signatures were obtained by the criminal court from the plaintiff and sent for comparison. Since no question was ever asked of the plaintiff as to whether the specimen signatures were hers or not, the entire argument on this point is misconceived.

11. It was then contended by the learned counsel that the suit was originally being tried in the court of the Civil Judge, Aligarh and was later transferred to the court of the Additional Civil Judge, Aligarh. After the evidence of the witnesses for the parties had been recorded and the case was fixed for arguments on 20th Sept. 1976 the Additional Civil Judge directed the recalling and re-examination of the Government Handwriting Expert, P. W. 1 under Order XVIII Rule 17 C. P. C, It will be relevant to quote that order :

'The decision of the present case depends upon the finding about the signature which appears on the register and notification of Special Marriage. According to the Government Expert Sri Aurad Hussain Rizvi (P. W. 1) disputed signatures marked Q-195 to Q-199 are superimposed. His deposition is that signatures Nos. Q-195 to Q-199 have been superimposed by one common model, The witness was cross-examined about this fact and he stated there that he has not brought the graphical test. I have gone through these two signatures Marked Q-195 and Q-199. The formation of letters 'a, s and Z' in these two signatures is so different, that these cannot be held to be a super-imposition or traced forgery from a common object. I think that the graphical test should also be seen before giving a finding on this point.

Under these circumstances the recalling and re-examination of the Government expert (P, W. 1) has become necessary. Order XVIII. Rule 17 C. P. C. empowers courts to recall and examine a witness at any stage of the suit. There are authorities to show that a witness even can be recalled when any ambiguity or omission is noticed while writing a judgment,

I, therefore, order the recall of Sri Aurad Hussain Rizvi (P. W. 1) who would be examined with graphical test, if any, and remove ambiguities in this case on 26th October, 1976. Let the summon be issued to the witness for 26-10-76.'

It appears that the case was thereafter transferred to the Third Additional District Judge. Aligarh, vide the order of the District Judge dated 4th Oct. 1976. The case was then listed for hearing on 26th Oct. 1976 before the Third Additional District Judge. He was examined by the Court. Thereafter an application 142/C-2 was moved on behalf of the defendant for being permitted to cross-examine the witness in respect of his statement recorded in court on that day. The Court rejected the application. Learned counsel has contended that the order rejecting the application and refusing permission to the defendant to cross-examine the witness, recalled by the Court, was an illegality. It was necessary to cross-examine the witness for he had introduced some fresh material. It was urged that the failure of the Court to afford an opportunity to the defendant to cross-examine a witness in regard to a material part of his statement was an illegality in the procedure and vitiated the proceedings. I am unable to accept this contention for the provisions of Order XVIII Rule 17 are quite clear. Order XVIII Rule 17 reads as follows :--

'17. Court may recall and examine witness:-- The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.'

This Rule provides the Court with a power which is necessary for the proper conduct of a case. If it appears to a court trying the suit at any stage of the proceedings that it is necessary to recall and further examine a witness it can always do so. This power can be exercised even at the stage of writing a judgment by the court. It is, however, proper that this power should not be exercised lightly and the rule is that it should be used sparingly and in exceptional cases only. The power is to be used for removing ambiguities, for clarifying the statement and not for the purposes of filling up the lacuna in a party's case. It is true that the power can be exercised by the Court at its own initiative and may even be so done at the instance of a party. Section 165 of the Evidence Act provides that a Judge may in order to discover or obtain proper proof of relevant facts, ask any question he pleases in any form at any time of any witness about any fact relevant. The section further provides that the parties shall not be entitled to make any objection to any such question, nor cross-examine any witness upon any answer given in reply to any such question without the leave of the Court. If the provisions of Order XVIII Rule 17 are read along with the provisions of Section 165 of the Evidence Act it is clear that the power to recall and re-examine a witness is exclusively the of the court trying the suit. The parties to the suit cannot take any objection to the question asked nor can they be permitted to cross-examine any witness without the leave of the court,

12. In the present case the application 142/C-2 could at best be an application as contemplated under Section 165 of the Evidence Act for leave to cross-examine the witness. It is a matter of discretion of the Court. In tihe present case the Court has refused that leave, I do not see any illegality. I have perused the subsequent statement made by P. W. 1 upon being recalled and I do not see any particular reason for permitting the defendant to cross-examine the witness. It was of course open to a party to suggest some questions to the Court to be asked of the witness. It does not appear that any such prayer was made. Of course, when a witness appears on being recalled neither party has a right of cross-examination. Consequently, the rejection of the application cannot be said to be contrary to any provision of law,

13. The next question for consideration is as to the effect of the issue of the certificate by the Marriage Officer under Section 13 of the Special Marriage Act. Learned counsel contended that once the certificate is issued by the Marriage Officer evidencing marriage it becomes a conclusive evidence of marriage having taken place in view of the provisions of Section 13(3) of the Act. There can be no doubt that if the parties to a marriage have followed all the relevant procedure culminating in the issue of the certificate of marriage by the Marriage Officer the provisions of Section 13(2) would come into play. That provision reads :--

'(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the Certificate shall be deemed to be conclusive evidence of the fact that a Marriage under this Act has been solemnised and that all formalities respecting the signatures of the witnesses have been complied with.'

If the marriage has taken place, which means, that the parties to the marriage have given notice of the intended marriage, are not within the prohibited degree of relationship and have made the declaration in the prescribed form before the marriage officer and the three witnesses it would amount to a valid marriage. In that event, it would not be liable to be challenged in a court of law except on the ground of fraud. In the present case the position is entirely different. The plaintiff's case is that she never went to the Marriage Officer, never signed the Marriage Register or the Marriage Certificates nor gave any notice of intended marriage with the defendant. In other words, her case is that she was no party to the proceedings before the Marriage Officer. The question whether the Marriage Certificate would be conclusive evidence or not would involve the further question as to whether the party was ever present and participated in the proceedings before the Marriage Officer, If a party is able to prove that she was no party to those proceedings, the conclusiveness of the evidence under Section 13(2) of the Act would not be attracted. But if it is proved that she had participated in the proceedings both at the time of giving notice and on the date of marriage, then the conclusion under Section 13(2) would be drawn. But if a party says that he or she was not present before the Marriage Officer both on the date of notice as well as on the date of marriage then he or she can challenge the entries by means of a suit for declaration. The plaintiff has done so in the present case. I, therefore, see no merits in the contention that it 5s not open to the plaintiff to challenge the marriage in view of the rule laid down in Section 13(2) of the Special Marriage Act.

14. The principal question, therefore, in this case is whether the plaintiff at all participated in any of the proceedings before the Marriage Officer, If she is able to prove that she did not, in that event she will be entitled to the declaration sought. There are two proceedings contemplated before the Marriage Officer. One is the act of giving notice and the other is the performance of marriage before the Marriage Officer. Every party intending to be joined in marriage under the provisions of the Act has to give a notice in writing to the Marriage Officer of the District. The notice has to be entered in a Book called 'Marriage Notice Book' and a copy of the notice is to be exhibited at the office of the Marriage Officer for the perusal of all. This is for the purpose that if anyone has objection to the marriage he may do so within thirty days. If no objection is received within a period of thirty days from the date of the receipt of the notice the party can be joined in marriage. In case there is an objection, the Marriage Officer has to decide it and he may refuse to solemnise the marriage. The marriage is performed before the Marriage Officer and three witnesses and a declaration has to be made by the parties. The declaration is also to be countersigned by the Marriage Officer and the three witnesses. Thereafter a Certificate of Marriage is to be prepared in the form specified and an entry made in the Marriage Certificate Book. Such certificate Ss also to be signed by the parties and the three witnesses. It is clear from the above that unless the notice is given of the intended marriage and a period of one month expires after the giving of the notice no marriage can take place.

15. In the present case, the notice of marriage is said to have been given on the 13th June, 1974. The plaintiff's case is that she never gave the notice and she never signed the notice nor did she go to the Marriage Officer on the said date. The defendant's case on the other hand is that the plaintiff accompanied the defendant and they had jointly in writing given a notice to the Marriage Officer. Sri Sudhakar Pachori, the Marriage Officer, Aligarh supports the stand taken by the defendant. In regard to the marriage said to have taken place on 23rd July, 1974 the plaintiff's case again is that she had not gone to the Marriage Officer on that date and did not sign the declaration or the Marriage Certificate or in the Marriage Certificate Book. She denied her presence and her signatures. The defendant has examined himself as D. W. 10 and has also examined the Marriage Officer Sudhakar Pachori, P. Ws. 1 and 2 of the 3 witnesses who signed the Marriage Register, namely, Shri Zia A.K. Shervani and Shri S. Ahmad Husain, He has also examined another person by the name of Sadiq Hussain D. W. 12 who is said to have been present in the office of the Marriage Officer. Mohammad Ali Khan, the third witness, whose signatures appear in the Marriage Certificates and the Marriage Certificate Book has not been produced. The question is which evidence is to be preferred and believed.

16. The plaintiff's version is a denial of her presence and signatures. The defendant and his witnesses' version is a definite assertion that she was present and she had signed the certificate and the marriage certificate book. The plaintiff has, therefore, relied on the evidence of the Handwriting Expert. The defendant has examined two handwriting experts, Sri Ashok Kashyap, D. W. 8 in respect of the disputed signatures, and the other expert Shri Ugrasen Kashyap, D. W. 7 to prove a letter, Ext. A-6 alleged to have been written by the plaintiff to Zia A.K. Shervani.

17. The opinion of handwriting expert is not conclusive evidence. It is, in the nature of opinion evidence. The evidence of the handwriting expert has to be taken with some amount of caution for normally they appear to serve the party at whose instance they have been examined. The Supreme Court in the case of Shashi Kumar v. Sabodh Kumar, AIE 1964 SC 529 has laid down the law (at p. 537):

'Besides it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence.'

In the case of Ishwari Prasad Misra v. Mohammad is a, AIR 1'963 SC 1728 the Supreme Court observed that the evidence of the handwriting expert can never be conclusive because it is, after all opinion evidence. In the case of Bhagwan Kaur v. M.K. Sharma, AIR 1973 SC 1346 the Court held (at p. 1352):

'The evidence of a handwriting expert, unlike that of a finger-print expert, is generally of a frail character and its fallibilities have quite often been noticed. The court should, therefore, be wary to give too much weight to the evidence of handwriting expert.'

18. It Is, therefore, clear that a conclusion cannot be based entirely on the evidence of a handwriting expert. There must be independent evidence or there must be cogent circumstantial evidence.

19. Learned counsel for the appellant Mr. M. Katju argued that in view of the law laid down by the Supreme Court the evidence of both the handwriting experts should be discarded. I cannot accept this contention for in my opinion the evidence of the handwriting expert P. W. 1 is not such as to merit a rejection. As far as the evidence of Ashok Kashyap D. W. 8 is concerned it merits to be rejected. The report of the Government Handwriting Experts was that the signatures appearing in the Marriage Certificate Book, the Certificate of Marriage and the declaration were forged and it was said to be a case of tracted forgery. Ashok Kashyap was examined at the instance of the defendant. He had compared the disputed signatures with the specimen signatures and had given his report saying that the signatures were of the same person. He admitted that in a case of tracted forgery the test of super-imposition is the best test. He admitted that he had not done the test of super-imposition. If the super-imposition test is the best test in a case of tracted forgery then it was incumbent upon Sri Ashok Kashyap to have that test. Since he had not done that test, his report is of no avail. AH Those observations about movement, speed, pressure, shading, line quality, style, alignment, slant, pen-pauses, pen-lift are of no avail if he has not done the most important test namely the super-imposition test. I have, therefore, no hesitation in rejecting his report. His evidence does not advance the case of the defendant at all.

20. Ext. 12 is the report of the Government Handwriting Experts. It is signed by three persons. They are all employed in the Government Forensic Laboratory at Lucknow. Their report was not at the instance of the plaintiff, Their report was based on a case referred to them by the criminal court. Effort was made to show that Sri Aurad Hussain Rizvi was a Shia and was, therefore, interested in the plaintiff but this theory has to be rejected for the report, was not of one expert but of three experts. The report mentioned about the super-imposition test and the graphical test. 31 is an accepted fact that the same person cannot reproduce exactly the same signature twice. It may be similar in many respects but cannot be exactly alike. Where two signatures, when superimposed, one upon the other, show that they tally in every respect the conclusion is that one has been tracted from the other. That is the conclusion that has been arrived at in the present case. I see no reason to discard the testimony of P. W. 1. The report and the evidence of P. W. I corroborates the evidence of the plaintiff, Plaintiff's case and stand is that she never made the disputed signatures. The evidence of P. W. 1 and the report, Ex. 12, support that stand, but that is not all. There are other circumstances to be taken notice of.

21. In the present case, the defendant's case is that after their marriage on 23rd July, 1974 the plaintiff stayed with the defendant and went to 'her father's place only on 13th Sept. 1974 when she was called on the pretext of a function in connection with a marriage of a close relation. This means that from 23rd July, 1974 until 13th Sep. 1974 a period of roughly 50 days the plaintiff is said to have lived with the defendant. It is significant in the present case that no photograph of the plaintiff and defendant together was available or produced. There is no evidence that any photograph on the occasion of the marriage was ever taken. Further, there is no evidence to show, except the bald statement of the defendant, that the plaintiff lived with him during this period. Neither any article or anything belonging to the plaintiff nor any writing of the plaintiff in regard to this could be produced or referred. It is rather strange that two people would be living together for 50 days and there would not be a single piece of evidence to corroborate their living together. If they had lived together where was the difficulty in producing the relevant evidence. A neighbour could have been examined, or any article belonging to her left at the house of the defendant could be produced, or even a letter written to her at his address could also be produced, if there was one, but there is nothing material on the record in this regard except the bald statement of the defendant, who is of course highly interested.

22. There is another circumstance which has a bearing on the case. If the parties lived together as husband and wife for 50 days after the marriage, the defendant could have certainly suggested for the medical examination of the plaintiff, If the plaintiff had refused the same or the medical examination gave a tell-tale support to his case it would have been a clinching evidence, but no effort was made in this respect. It was argued by the learned counsel for the respondent that the defendant did not make such an application knowing very well that the result of such medical examination would be in favour of the plaintiff and not in his favour. We cannot speculate as to the outcome of the result of the medical examination but suffice it to say that the defendant could certainly have made an application in this regard. His failure to do so is a circumstance appearing against him.

23. The next point for consideration is as to the direct evidence of her presence before the Marriage Officer. In regard to the date of giving a notice the only evidence is of the defendant and Sudhakar Pachori. The defendant has of course stated about her presence but it must be observed that he is highly interested. Sudhakar Pachori, D. W. 1, the Marriage Officer has stated that two people had come and given notice. Much would have depended if he had identified the plaintiff clearly and directly but he does not do so. He stated that he cannot recognise a bride and a bridegroom in every case but in the present case as the matter had proceeded very far and the girl had come to the courts he would be able to recognise the girl. It may be noticed that he was examined on 23rd April 1976. The plaintiff was examined on 22nd April, 1976. Sudhakar Pachori does not say that the person who had been examined in the case on 22nd April, 1976 was the girl who appeared before him on the date of the notice and on the date of marriage. Sudhakar Pachori does not state that he knew her from before. All that he says is that he would be able to recognise the girl. This evidence in my view does not conclusively establish that the plaintiff was the girl who appeared before the Marriage Officer. According to Sudhakar Pachori he would be able to recognise the girl because he had seen her in the courts. That was not the question. The point is: Does he remember who appeared before him on the date of the notice and date of the marriage, and whether the plaintiff was the same girl. There does not appear to be a direct, clear-cut assertion by Sudhakar Pachori in the respect. He has of course stated about the procedure followed in his office on the date of marriage and about the signatures made in his presence and even assuming that all this was done, the evidence of Sudhakar Pachori is of no avail unless it was clearly stated by him that he recognised the girl who appeared before him on the 23rd July, 1974 as the plaintiff.

24. Apart from the parties to the suit and the Marriage Officer the defendant has alleged that there were four other persons present at the time of the marriage. They were Zia A.K. Shervani D. W. 2, S. Ahmad Husain D. W. 6 and Sadiq Husain D. W. 12. The question is whether their evidence is reliable and believable and further whether they are independent witnesses.

25. D. W. 2 Zia A.K. Shervani admittedly is a close friend of the defendant It appears that the plaintiff's father Raja Qasim Ali Khan married a number of times. There was some dispute between him and his first wife and his son Baqir. The first wife had asked for the payment of her dower debt and there was litigation in that respect Admittedly, Baqar eon of Raja Qasim Ali Khan is a close friend of Zia A.K. Shervani. In view of the litigation between the husband and the wife, the son taking side of the mother it may be presumed that the relationship between Baqar and his father was not D. W. 2 cannot, therefore, be said to be an independent witness. He has tried to prove that the plaintiff and defendant were in love and were moving even before their marriage. He produced a letter, Ext. A-6, said to have been written by the plaintiff. It has been argued that the letter contains reference to the defendant. I am afraid I do not find any mention of Altaf Husain in that letter. There is some reference by the word 'vo' and 'un se kah dijiyaga' but no name is mentioned. It is not possible to draw an inference that the person referred to in the letter is Altaf Husain. If that was so, where was the difficulty in mentioning. There was no other indication in the letter by which the defendant can be identified to be the person mentioned by the words quoted above. Neither his name nor his residence or vocation has been referred. D. W. 2 Shervani has of course stated that it referred to the defendant, I find it extremely difficult to accept the testimony of Shervani in this regard,

26. It was vehemently argued that Shervani was a responsible officer in the Merchant Navy, and he would have no reason to depose falsely. Merely because a person occupies a position of responsibility is no indication of the fact that he cannot depose falsely. The evidence and the circumstances must show that ha has not been deposing falsely.

27. Shervani has indicated a love theory between the plaintiff and the defendant. It will be noticed that there is no specific mention of any love theory anywhere in the written statement All that has been stated in the written statement is that she with her own free will and consent gave the notice of the intended marriage and signed the Marriage Register and the certificate. It was urged that this spelt out a case of love between the parties. The evidence in this regard is not satisfactory. Apart from Zia A.K. Shervani, P. W. 2 the defendant relied on the statement of P. W. 4, Khurshid Ahmad, made in the cross-examination and Dr. Vishwakarma, D. W. 4. It may be mentioned here that the defendant has not produced a single letter written by him to the plaintiff or vice versa to show the existence of love, or affection or infatuation. Learned counsel laid emphasis on the evidence of P. W. 4 Khurshid Ahmad, clerk in the Aligarh Muslim University Examination Office who had issued a High School certificate. In the cross-examination he stated that he gave the High School certificate to Altai Husain and then said that he had given it to him because two days earlier the plaintiff had asked him to give it to Altai Husain. It appears that normally a High School certificate could not be given to any person except the person concerned. It appears that Altaf Husain had secured the Higih School certificate from Khurshid Ahmad and the clerk perhaps realising that he could not give the certificate of one person to another stated that he had given the certificate to Altaf Husain on the instructions of the plaintiff who had come to him along with Altaf Husain two days before he issued it to the latter. There is no authorisation in writing from the plaintiff to this clerk. She has stated that she did not go to obtain the High School certificate. There is no other evidence to show that they had together gone to obtain the High School certificate. Therefore, the argument tbat they were moving together even before the marriage according to the version of Khurshid Ahmad is not borne out,

28. Dr. Vishvakarma, D. W. 4 bas been examined to prove that the plaintiff had stated to the doctor that the plaintiff was married to Altaf Husain. Dr. Vishvakarma is an Ear, Nose, Throat specialist in the Aligarh Muslim University. He stated that the plaintiff had come to him for some treatment along with Altaf Husain. He had examined her and had prescribed her some medicines on 19th Aug. 1974, In preparing the card for the treatment she had informed the doctor that she was married to Altaf Husain 15 or 20 days earlier. Great emphasis was laid on this evidence to show that she had admitted before the doctor of her marriage. It was also urged that the doctor was not related to any of the parties. He was the Head of Department of E. N. T. and was a responsible person and would not make a wrong statement. A perusal of the treatment card, Ext. A-7 has a tale to tell. It shows tbat on the 19th Aug. 1974 in the E. N. T. O. P. D. a person by the name of Nasreen Jahan was examined. The doctor has admitted that he had cut out the name and re-written the name as Mrs. Nasreen Zahra wife of Altaf Husain. Her age was mentioned then as 20 years. A reason has been given as to why the name of Nasreen Jahan was cut out. Learned counsel for the respondent contended that this card was prepared for some person by the name of Nasreen Jahan and had then subsequently been, interpolated with the name of the plaintiff. The doctor says that he changed the name when me learnt that she was married. He has stated that he knew her from before. If that was so, where was the occasion to write Nasreen Jahan. The doctor in order to show his familiarity with the plaintiff stated that he had submitted a paper on his research on which the plaintiff was one of the subjects of study. Of course, this paper was submitted after the suit had commenced. The plaintiff admitted that she had visited the doctor on a few occasions with her mother, but denied visiting the doctor on the 19th Aug. 1974 and in the company of Altaf Husain. In order to corroborate his statement that he treated the plaintiff for sinusitis the doctor produced the card. Ex. A-7. The very entry in the card itself makes it suspicious. There is no corroborative evidence that the plaintiff made any statement before the doctor that she married 15 or 20 days prior to 19th August, 1974 and it is rather strange for the newly weds not to remember the date of their marriage. Would they be so vague about the date After all, marriage takes place on a particular day and is not spread over a number of days. In view of the above I am unable to place reliance on the doctor's version about the marriage of these two persons.

29. The defendant has examined S. Ahrnad Husain, D. W. 6 who was an Assistant Registrar in the Aligarh Muslim, University and has appeared as a witness in this case. He was a classmate and close friend of Sudhakar Pachori. He had filed a writ petition in this Court and he had admitted that he used to go to Sudhakar Pachori for consulting law books. He stated that he did not know personally Nasreen Zahra the plaintiff. He identified her on the basis of the High School certificate, bank pass books and other papers. He stated that he could not say whether he had seen the girl for the first time before the Marriage Officer. A question was asked of him whether anyone had identified the girl before the Marriage Officer. The court below had noticed in the answer; 'the witness is silent.' What is more significant is that the Court has recorded that at the saying of the counsel for the defendant the witness stated that 'I do not remember'. This is the state of evidence. He knew Altaf Husain for the past 5-6 years and he identified at the bidding of Altaf Husain. What reliance can be placed on a witness like this. He does not know the girl, could not identify her and yet he has come to depose about the marriage. I do not consider him. to be independent or reliable,

30. Another witness examined to prove the marriage is M.A. Sadiq, D. W. 12. He is not one of the three witnesses who signed the certificate and marriage certificate book. He was a casual visitor who was sitting in the office of Sudhakar Pachori. He has deposed that they had signed in his presence. He knew Raja Qasira Ali Khan, had gone to Raja Qasim AH Khan in the month of November but spoke nothing about this marriage and yet he says that only six days later Qasim Ali Khan visits Ujaini in the district of Budaun where the witness resides, to ask him to get the matter patched up. I do not see any reason to accept his testimony that he was present on the occasion.

31. One circumstance was pressed by the learned counsel for the appellant. It was stated that the younger sister of the plaintiff, Rajkumari Nelofar alias Shahida was married to Shamsuddin before the Marriage Officer under the Special Marriage Act on 12-4-1975. This was also a case where the girl had run away from home and on her father coming to know of it had got them married in a Nikah ceremony on the 14th April, 1975. This Nikah was performed by Qazi Ahmad Ullah, D. W. 5. There is no reason to disbelieve this part of the case. What is emphasised is that in the Nikah register kept by Qazl Ahmad Ullah the signatories and witnesses are two persons Khalid and Altaf Husain. Khalid is admittedly a son-in-law of Raja Qasim Ali Khan, plaintiff's father. The question is how can Altaf Husain sign as a witness in that marriage. It was urged by the learned counsel for the appellant that this privilege of acting as a witness is always of the elder sister's husband. Khalid was a son-in-law of the family and since Altaf Husain had also been married to the plaintiff he had signed. This theory is very difficult to accept for the reason that the suit was filed by the plaintiff only 16 days later. It must also be remembered that the father of the plaintiff had instituted a criminal complaint and a case was pending in the criminal court. Whether in these circumstances the defendant would be invited to act as a witness. It remained a little doubtful as to how and in what circumstances Altaf Husain signed the Nikahnama as a witness. Shamsuddin has been examined in this case as a defendant's witness. He is admittedly the son-in-law of Raja Qasim Ali Khan. He has stated that Altaf Husain did not sign on his behalf. On this basis it was argued that he must have appeared as a witness for the girl. The interesting feature is that the person who could explain this is Raja Qasim Ali Khan who was never asked a question about this. The Nikahnama was never put to P. W. 3 and he was never asked as to how Altaf Husain came to sign this certificate. If a party introduces a piece of evidence without asking a question about it to the person who was capable of answering it, an inference must be drawn that it was not produced so that the person may not give an answer adverse to the party. I am, therefore, satisfied that no adverse inference against the plaintiff can be drawn from the signature of Altaf Husain on this Nikahnama. Even assuming that Altaf Husain had signed it, it does not prove the marriage of the plaintiff with the defendant. There are some other circumstances which may now be considered.

32. Admittedly, the plaintiff came from a respectable Shia family. Her father had the title of Raja. Her grandfather was a Khan Bahadur and Raja. They had a status and position but possibly their financial position may have weakened in course of time. She is educated and had read up to B. A. classes. She was reading Psychology in the Abdullah College, Aligarh. The defendant is a Sunni Musalman. He has no education worth the name inasmuch as he has no degrees or certificates or diplomas. He has no schooling either. He has admitted that he has some Islamic education and asserted that he could read Urdu. However, when the letter, Ex. A-6 was placed before him to be read, he could not do so. This indicates the extent of his education. Ex. A-6 was written in the clearest possible hand and was very readable. Although the defendant claimed to be running a business he could not say that he was paying income-tax. He has asserted that he was paying sales tax. Payment of sales tax depends on outturn on the sale of goods liable to sales tax. Unless the volume of tax is a large one, it would not indicate the status or position of a person. What has transpired from the evidence is that the defendant is a registered contractor or electrician with the Aligarh Muslim University. Merely being on the panel of the registered contractors or electricians of the Aligarh, Muslim University does not give him a social status. What is necessary to be noticed in this regard is that there is complete lack of parity in the respective status of the parties. The two of them belong to different status in the society. It was argued that love is blind and knows no barriers. True, but it cannot be said that in the present day society girls are so blind as not to consider their interest, particularly when the girl has University education and the boy is almost illiterate; the hiatus in their respective status, both social and financial, and the difference of ten years in their ages, Of course, it is possible for a girl to have fallen in love with a person twice her age, but in all such cases there is some other factor; either it is wealth, social status, position or security that impels the girl to marry a person far older in age than herself. None of those features are present in the present case,

33. Taking a totality of the evidence on record, it is not possible to say that the court below either assessed the evidence wrongly or misconstrued the evidence. Nothing could be shown that any evidence has been misread nor could it be shown that any inadmissible evidence has been relied upon. In my opinion, the court below has correctly relied on the evidence of the witnesses which was corroborated by the evidence of her father and that of the handwriting expert as well as by the circumstances enumerated and discussed above. On the contrary, the evidence of the defendant is unreliable. None of the witnesses on behalf of the defendant can be said to be independent. I am also not prepared to rely on their evidence either for the reasons indicated above. I, therefore, conclude that the plaintiff has proved her case and the court below was justified in decreeing the suit for the relief claimed.

34. In the result, therefore, the appeal fails and is dismissed with costs.


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