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Regular Second Appeal No. 688 of 1964, decided on 1st May 1968.

Marriage (Nikah) ‑Witnesses‑Words of proposal and acceptance must be uttered by contracting parties or their vakils in each other's presence and hearing and in presence and hearing of two male or one male and two female witnesses who must be sane and adult Muslims ‑ Whole transaction must be completed at one meeting‑Only Nikahkhawan and one other (male) witness‑Not sufficient to prove valid marriage.

Mst. Ghulam Kubra Bibi v. Muhammad Shafi Muhammad Din A I R 1940 Pesh. 2 rel.

Abdul Majid Sheikh for Appellant.

Nemo for Respondents.

Date of hearing : 1st May 1968.

This second appeal is directed against the decree dated the 8th of February 1964 of reversal passed by the Additional District Judge, Gujrat, in a suit for restitution of conjugal rights brought by the plaintiff appellant as against defendant‑respondent No. 1 along with her three relatives (respondents Nos. 2 to 4). The suit was resisted on the ground that respondent No. 1 was not a legally wedded wife of the appellant and as such no relief could be given to the appellant. The trial Court framed the following three issues in the case and decreed the suit :‑

(1) Is defendant No. 1 legally wedded wife of the plaintiff O. P. D.

(2) Are defendants Nos. 2 to 4 restraining her from living with the plaintiff

(3) Relief.

On appeal the Additional District Judge has set aside the decree of the trial Court on the ground that "the statements of the P. Ws. are contradictory and they do not coincide each other on any point. Moreover the respondent (now appellant) has not produced two witnesses of the Nikah required by law in such cases". The learned Additional District Judge has also observed that the appellant has no right to take advantage of the weakness in the statements of the respondents' witnesses and he should have proved his case independently, by producing cogent evidence and reliable witnesses.

2. In this second appeal learned counsel firstly contends that the findings of the learned Additional District Judge stand vitiated for the reason that evidence of the witnesses of the appellant had not been properly construed and the observation of the lower Appellate Court that the statements of P. Ws. are contradictory is incorrect. I have gone through the record with the help of learned counsel for the appellant and I find that the objection taken before this Court is ill‑founded. The statement of Muhammad Nawaz (P. W. 1), the Nikahkhawan, is sketchy in character and that of Fazal Karim (P. W.2) is materially discrepant with that of the appellant himself as P. W. 3.

3. The next contention is that in law there is no necessity of two witnesses of the Nikah and on that ground also the judgment is legally infirm. I am not persuaded to agree. Although under Shariat Law neither writing nor any religious ceremony is necessary to the validity of a marriage contract, words of proposal and acceptance must be uttered by the contracting parties or their agents (vakils) in each other's presence and hearing and in the presence and hearing of the two male, or one male and two female, witnesses, who must be sane and adult Muslims, and the whole transaction must be completed at one meeting. (Para. 24 at page 100, Aoglo‑Muhammadan Law by Sir Roland Knyvet Wilson, Sixth Edition, refers). 'The same view has been expressed in Mst. Ghulam Kubra Bibi v. Muhammad Shafi Muhammad Din (A I R 1940 Pesh. 2). In the instant case we have only the Nikahkhawan and one other witness. This is not a sufficient proof of the alleged marriage, especially when the depositions of the said two witnesses have been found to be unreliable. The appeal is concluded by findings of fact and I do not find any good ground to differ from those findings. The appeal fails and is dismissed.

A.E. Appeal dismissed.

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