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Musammat Nafisunnisa and ors. Vs. Mirza Mumtaz Husain - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All363; 65Ind.Cas.539
AppellantMusammat Nafisunnisa and ors.
RespondentMirza Mumtaz Husain
Excerpt:
muhammadan law - marriage--shia--requisites of valid marriage--marriage performed secretly--restitution of conjugal rights. - - 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. that a strong affection had grown up between them and that be had endeavoured to marry her after obtaining her relatives consent; 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. there is nothing in the muhammadan law which countenances the doctrine that a marriage..........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.....
Judgment:

Stuart, J.

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 26th 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, 4th 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 3rd 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.

4. The 4th ground is: 'Because the essential religious ceremonies not having taken place at the time of the alleged marriage, their marriage was absolutely void.' This ground cannot be supported. 'The law appoints no specific ceremony for the contractual performance of a marriage; and no religious rites are necessary for contrasting a valid marriage.' (Ameer Ali on Muhammad an Law, Volume IT, 4th Edition, page 333). It is true, as stated at page 334, that 'Local forms of religious ceremonies have become associated with the performance of the matrimonial contracts,' At page 334 it is stated: 'The validity or invalidity of a marriage, however, does not depend in any way on the performance or non performance of the forms and ceremonies that have been engrafted on Moslem manners and customs by contract with outside races.' In India it has become more or less the custom to introduce certain prayers into the ceremony. At page 333 the learned author continues: 'As stated before, in practice there is little or no difference between the ceremonials observed by the Shias and the Sunnis on these occasions. Theoretically, however, there is a difference which ought not to be lost sight of in dealing with the question of form. Whilst the Sunnis simply recommend the use of the Khutba before the contract) is finally executed, and of the Surat ul-Fatiha (the opening chapter of the Koran) at the conclusion of the marriage, the Shias consider the use of these to be, to some extent, obligatory. Among them, the ceremony commences as well as concludes with a prayer, and after the sigeh has been pronounced, the person who officiates as minister or priest, reads the Khutba and the Surat- ul- Fatiha to sanctify and bless the union,' It is clear from what has been stated above that where the essentials are present (the declaration and the acceptance expressed in such a manner as to demonstrate intention without any sort of ambiguity) the presence or the absence of religious ceremonials is immaterial and in no way attests the validity of the union,

5. The 5th ground is: 'Because the burden of proving that defendant No. 1 after free and independent advise and fully realising the effect on her interests entered into the contract of marriage was upon the plaintiff-respondent and he has failed to discharge the burden.' It was here argued that the Court should approach this question as if it were a question of the execution of a sale or contract by a purda-nashin lady that it should be established by sufficient evidence that she had had independent advise; that the matter had been clearly explained to her and that she was entering the matrimonial state forewarned and forearmed. The argument appears to me to have no bearing upon a case such as this. We are dealing here with the question of Mnhammadan marriage among Shias, the laws and rules of which are to be found in their own religion. The habit of keeping women secluded has been known to Shias for a very considerable period, There is nothing in the Shia Law to justify the imposition in the matter of marriage of conditions which have been imposed upon persons dealing with purda-nashin women in business matters. The Shia Law, (in the respect it is no different from the Hanafi Law), lays down that if a woman is adult and sane, she is competent to enter into a matrimonial engagement without advice or consent from anybody.

6. The last ground is a general ground to the effect that the Court should, in its discretion, have refused to grant relief. A Court has not very great discretion in the matter as was laid down many years ago, in the case of Moonshee Buzloor Ruheem v. Shumsoonnissa. Begum 11 M.I.A. 551: 8 W.R.P.C. 3 : 2 Suth. P.C.J. 59 : 2 Sar. P.C.J. 259 : 20 E.R. 208 but in this particular case on the facts there is every reason why the relief should be granted for it has been found that the young lady is eager and desirous to go to her husband and is being restrained by her relatives. For these reasons, I dismiss this appeal with costs which will include fees on the higher scale.


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