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Civil Appeal from Appellate Decree No. 771 of 1967, decided on 11th December 1967.

Marriage‑Essential of validity.

The essential of valid Muslim marriage is that there should be a proposal made by or on behalf of one of the parties of the marriage and an acceptance of the proposal by or .on behalf of the other in presence and hearing of two male or one male and two female witnesses who must be sane and adult Muslims. The proposal and acceptance must both be expressed at one meeting.

-- Registration of marriage, solemnized under Muslim Law, absolu tely necessary under S. 5‑Non‑registration causes doubt on solemnization of such marriage.

‑Marriage--Presumption‑Prolonged and continued cohabitation may give rise to presumption of marriage‑Duration of cohabitation for period less than one year --Cannot, however, give rise to such presumption.

A. K. M. Nurul Islam with A. H. Md. Sadat Ali Khan for Appellant.

Ismailuddin Sarkar for Respondents.,

The plaintiff is the appellant. He had brought a suit for restitution of conjugal rights and for permanent injunction restr aining the defendant No. 1 from marrying any other person.

The case of the plaintiff was that there was cordial relationship between the family of plaintiff and defendants. The acquaintance' between the plaintiff and defendant No. 1 turned into love and they began to move and mix freely. Defendant No. 1 is alleged to have proposed to marry the plaintiff towards the end of 1962 and defendant No. 2 the mother of defendant No. 1 is alleged to have informed the plaintiff of this to which the relations of the plaintiff did not agree Thereupon defendant No. 2 and her relations proposed that defendant No. 1 and plaintiff be married at the residence of some relations of defendants 1 and 2 so that the guardians of plaintiff could not blame the guardians and relations of defendant No. 1. Accordingly on 25‑7‑1963 there was a marriage between the plaintiff and defendant No. 1 according to the Muslim law at the residence of Hamid Saheb (P. W. 3) is the presence of witnesses which was solemnised by P. W. 2,. Abdul Quader. The dower was fixed at Rs. 200 and a monthly maintenance of Rs. 35 was agreed upon and defendant No. 1 was given clothes and ornaments to the value of Rs. 900. It is alleged that no kabinnama was taken according to the instruction of defendant No. 2. Thereafter an affidavit was sworn by defendant No. I on 2‑7‑1963 before a Magistrate 1st class stating that she had married the plaintiff. Thereafter the plaintiff and defendant No. 1 lived as husband and wife in the house of defendant No. 1. The defendant No. 2 wanted money from the plaintiff for construction of the house which the plaintiff did not give. At this the defendant No. 2 was very much dis‑satisfied and asked the plaintiff not to visit their house. Thereafter it is alleged defendant No. 1 was not allowed to visit the plaintiff: There was an attempt at reconciliation in a shalish in the residence of one Dr. Jabbar where defendant No. 1 admitted the plaintiff." to be her husband but did not agree to go to the plaintiff's house on the ill advice of defendant No. 2. The plaintiff further alleges that defendant No. 2 is a greedy person and wants to make money by the marriage of defendant No. 1 to one A. K. M. Firoj by suppressing the fact of marriage between the plaintiff and defendant No. 1. The defendant No. 1 is alleged to have taken money to the same effect from one Hashmat Ali and one Dr. Moinuddin. The plaintiff therefore brought this suit for restitution of conjugal rights and for injunction so that the defendant No. 1 be restrained from marrying any other person.

The defendants' case is that there was no marriage. It is admitted that the two families were acquainted with each other and the plaintiff used to visit the house of defendant No. 2 and he used to call for the defendant No. 2 his sister and defendant No. 1 used to call the plaintiff as Mama (Maternal uncle). It is claimed that the defendant No. I was a college student and there was no question of her marriage. The defen dant No. 1's father at the time of his death had left sufficient money for their maintenance besides they had properties in the village and the defendants were not in need of any monetary assistance from anybody. It is further stated by the defendants that defendant No. 1 was admitted as a patient suffering from typhoid in the Dacca Medical College Hospital from 9‑7‑63 to 17‑7‑63 but her fever relapsed again at her residence where she was confined to bed till the end of July 1963. The defendants characterised the allegations as false.

The learned Munsif on an analysis of the evidence came to the conclusion that the marriage between the plaintiff and defendant No. 1 was established and decreed the suit on contest with cost against defendant No. 2 and without cost against defendant No. 1. The learned Munsif declared that the defendant No. 1 was the married wife of plaintiff and the plaintiff do get conjugal rights over defendant No. 1 and defendant No. 2 was restrained permanently from standing in any way in plaintiff's exercising his conjugal right on the defendant No. 1. The learned Munsif ordered that Mr. A. K. M. Firoz. Mr. Altafuddin Ahmed be restrained in any way in the exercise of conjugal right on defendant No. 1. Defendant No. 1 who was further restrained permanently from marrying any one else till the subsistence of the marriage tie between the plaintiff and defendant No. 1.

The defendants appealed to the learned Subordinate Judge. The learned Judge on an independent analysis of the evidence came to the conclusion that there was no marriage and that the plaintiff had failed to establish the solemnisation of the alleged marriage with the defendant No. 1 and as such he held that the plaintiff is not entitled to get a decree for the reliefs prayed for. Hence he allowed the appeal and set aside the judgment and decree of the learned Munsif and dismissed the plaintiff's suit on contest with costs for the defendants. Hence this second Appeal.

Mr. Nurul Islam appearing on behalf of the plaintiff appellant has argued that the learned Subordinate Judge misread the evidence adduced in this case and failed to consider the material evidence in arriving at his decision and as such the judgment is liable to be set aside. This being his argument I allowed Mr. Islam to place before me the relevant evidence. So far as the acquaintanceship with the plaintiff and defendant No. 1 is concerned it is an admitted fact that both were on very intimate terms. But intimacy, however, close cannot prove marriage. The only point for consideration is whether there was marriage between plaintiff and defendant No. 1. The learned Subordinate Judge has analysed the evidence on this point and has come to the conclusion that the evidence did not establish a valid marriage. He concluded thus: ‑

"Having in view the discrepant statements of the P. Ws. as regards Ukil and witnesses to the marriage and also as regards the saree given by the plaintiff and also having in view the positive statement of P. W. 3 that none except P. W. 3 himself, Bulbul, Salam, Dr. Khan and the Molla were present in the marriage it seems to me in the circumstances of the case and nature of the contention with reference to the previous points of the plaintiff and defendant No. I and in absence of specific evidence to the effect that the defendant No. 1 was asked as to whether she was agreeable to the said marriage and she replied in the affirmative: that the plaintiff seems to have procured some witnesses to say things in support of his claim from amongst his friends."

I have gone through the evidence adduced by the plaintiff and I agree with the learned Subordinate Judge that there is no evidence that defendant No. 1 was asked as to whether she was agreeable to the said marriage and she replied in the affirmative.

The plaintiff's evidence on this point is "We were married on 25‑7‑1963 at the residence of Mr. Hamid according to Muslim law in presence of Bulbul Dhai alias F. I. M. Mohsin, Hamid Saheb, Salam Saheb and other friends.

Kazi Abdul Kader solemnized the marriage. There were vakils and witnesses. Dower was settled at Rs. 200 and Rs. 55 was fixed as maintenance. I gave her ornaments worth about Rs. 500. Besides I gave her clothes etc. worth Rs. 400."

He has not testified that defendant No. 1 gave her consent specifically to the marriage. P. W. 2 who celebrated the marriage states that "Parties to marriage gave their consent and on the consent in my presence I solemnized the marriage." Here also we find the absence of any categorical statement that defendant No. 1 herself stated anything signifying her willingness to the marriage. P. W. 3 in whose house the marriage is alleged to have taken place stated "Plaintiff married defendant No. 1 on 25th July 1963 in my presence. Abdul Kader who is Mollah, solem nized the marriage. I was Ukil. There were witnesses in the marriage. Bulbul, Salam and Dr. Khan were witnesses. It was solemnized according to Muslim Law." He does not say any thing about consent of defendant No. 1. If he was Ukil, then according to custom followed in this part of the country, he would have to convey the consent of the bride to the Kazi solemnizing the marriage. But he did not give any evidence that he obtained the consent of defendant No. 1. Neither does P. W. 2 state that any consent of defendant No. 1 was conveyed to him by P. W. 3 Abdul Hamid. If the parties had given the alleged consent in the presence of the Kazi there would have been no necessity of any vakil. P. W. 4, however, states that "one moulavi solemnized the marriage. The marriage was solemnized according to Muslim Law. Consent of defendant was taken". But he does not say who took this consent, whether P. W. 2 the Kazi or P. W. 3 Abdul Hamid, the Ukil. In view of this absence of the essential elements of the Muslim Marriage namely, the consent of the bride I do not see any reason how the learned Subordinate Judge had erred in coming to the finding that the plaintiff had failed to establish that a valid marriage had taken place between him and defendant No. I. The defendant No. 1 categorically states "I did not go to the residence of Abdul Hamid on 25‑7‑65. I did not give consent of my marriage nor did I marry the plaintiff"". The essential of valid Muslim marriage is that there should be a proposal made by or on behalf of one of the parties of the marriage and an acceptance of the proposal by or on behalf of the other in presence of and hearing of two male or one male and two female witnesses who must be sane and adult Muslims. The proposal and acceptance must both be expressed at one meeting.

According to the evidence of the plaintiff it is defendant No. i who made the proposal that they got married. But there is no evidence that there was proposal ay defendant No. 1 on 25‑7‑1963 at the alleged marriage ceremony nor is there any evidence that the plaintiff proposed the marriage of defendant No. 1. The evidence of the plaintiff is that when defendant No. 1 proposed the marriage he proposed that he should consult his mother. Therefore, there is no acceptance by the plaintiff of the marriage by defendant No. 1 on that date. As I have already stated the proposal and the acceptance must be in one sitting. But I have already said that there is no evidence of who proposed the marriage and accepted the proposal of the marriage. In the absence of this essential factor, namely, a proposal and its accept ance, in my opinion, there was no valid marriage even if the evidence of the plaintiff be accepted, that there was some sort of ceremony on 25th of July 1963 in the evening in the house of Abdul Hamid P. W. 3.

Moreover the alleged marriage is not in conformity with the provisions of section 5 of the Muslim Family Laws Ordinance VIII of 1961. Section 5 reads as follows: ‑

"(1) Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of the Ordinance.

(2) For the purpose of registration of marriages under this Ordinance, the Union Council shall grant licence to one or more persons, to be called Nikah Registrars, but in no case shall more than one Nikah Registrar be licensed for any one Ward.

(3) Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this Ordinance, be reported to him by the person who has solemnized such marriage.

(4) Whoever contravenes the provisions of subsection (3) shall be punishable with simple imprisonment for a term which tray extend to three months, or with fine which may extend to one thousand rupees or with both.

(5) The form of Nikahnama, the registers to be maintained by Nikah Registrars, the records to be prescribed by Union Councils, the manner in which marriages shall be registered and copies of Nikahnama shall be supplied to the parties, and the fees to be charged therefor, shall be such as may be prescribed."

This section makes it absolutely necessary that the marriage solemnized under the Muslim law shall be registered. The solemnization of marriage if validly effected might not be affected for non‑registration of the marriage. But the non‑registration of the marriage causes a doubt on the solemnization of the marriage itself. The law provides for punishment for non‑registration of marriage solemnized by a person other than the Nikah Registrar. In this case there is no evidence that the marriage was registered. The marriage took place after the Ordinance came into force and this non‑registration clearly shows that there was no valid solemnization which is stated in the affidavit alleged to have been made by defendant No. 1 before the learned Magistrate Exh. 5. But this affidavit is an unilateral document and it does not reveal that a proposal was made by one and it was accepted by the other in presence of two witnesses as prescribed by the Muslim law. It is true that there is the evidence of intimacy and very close intimacy but this alone cannot establish the marriage. There are cases where marriage is presumed from prolonged and continued cohabitation. But according to the plaintiff's own case the duration of cohabitation is only for period less than a c year and one cannot draw the presumption as to a valid marriage even if the entire evidence of the plaintiff on this point is accept ed. In these circumstances for the reasons stated above and for the reason stated by the learned Subordinate Judge I hold that there was no valid marriage between the, plaintiff and the defendant No. 1.

The appeal, therefore, is dismissed, with costs. The judgment. and decree of the learned Subordinate Judge is affirmed. And the Rule (C. R. 1321 (s) of 1967) is accordingly discharged without cost.

A. E.

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