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Suit No. 905 of 1952, decided on 12th March 195(,

, S. 78, sub‑clause‑Public document in a foreign country‑Copy of‑When admis4ible.

Section 78, sub‑clause 6 of the Evidence Act requires that copy of a public document in a foreign country, should be certified by the legal keeper thereof with a certificate under the seal of a Notary Public, or of a Consul or Diplomatic Agent that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.

‑Proper time for raising objection to. Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection to the admissibility of a document must be taken at the time of its reception, because if objection is taken at the proper time to the reception of certain evidence not being produced in the form prescribed by law, an oppor tunity can be afforded to the party producing such evidence to remedy the defect and satisfy the requirements.

Fauja Singh and others v. Allah Ditta and another A I R 1931 Lah 722 and Gopal Das and another v. Sri Thakurji and others A I R 1943 P. C. 83 relied upon.

‑Unpaid‑Suit for recovery of‑Place for insti tuting.

An unpaid dower is a debt and the legal principle is that the debtor must seek his creditor: Where the defen dant had no fixed place of abode but wandered from K to L and thence to D where he ultimately settled down; whereas the plaintiff permanently resided in K where the suit was instituted.

Held, the Court at K was the proper forum for the suit.

Sm. Tusliman Bibi v. Abdul Latif Mia A I R 1936 Cal.97 referred to.

‑‑Wife relinquishing dower in order to retain affection‑Iniquitous to hold a woman remitting dower under such circumstances to be bound by it. Where a woman feels that the possible way to win or retain the affection of the husband is to remit the dower amount and foregoes her claim by executing a writing, she is not a free agent and it would be iniquitous to hold that a woman who remits dower in such circumstances is bound by it.

Hasnumiya Dadamiya v. Halim‑un‑Nissa Hafiz‑ulla A I R 1942 Bom. 128 and 47 Cal. 537 relied upon.

A. S. Faruqui for Plaintiff.

Tahir Hussain for Defendant.

--Shahbano Begum the plaintiff has filed this suit for recovery of her dower amounting to Rs. 50,000 from the defendant Iftikhar Muhammad Khan. The parties are Sunni Musalmans and originally resided at Bhopal, now in Bharat. They were married on 12th February 1944, and the amount of dower was fixed at Rs. 50,000. According to the plaintiff the dower was prompt. The defendant took another wife sometime between 12th May 1950, and 3rd August 1950, and left for U. K. along with his new wife on or about 5th August 1950. Subsequently the plaintiff migrated to Pakistan and took up her residence at Karachi. The defendant too came to Pakistan sometime in 1951 admittedly prior to the filing of this suit. According to the allegations in the plaint the defendant mostly resided at Karachi. The plaintiff made a demand by means of a notice dated 7th April 1951. It is not clear as to where the notice was served but the defendant replied to the notice and repudiated liability for the dower amount.

The defendant admitted that the parties were married on 12th February 1944, and the dower amount was fixed at Rs. 50,000 but denied that it was prompt dower. The written statement further took objection to the jurisdiction of this Court on various grounds including that the defendant did not reside within the jurisdiction of the Sind Chief Court or the Karachi Bench and the demand was made at Lahore and not within the jurisdiction of the Karachi Bench. The defend ant further pleaded that the plaintiff had relinquished her entire dower money.

The following issues were framed :‑

(1) Whether the dower amount of Rs. 50,000 was prompt or deferred

(2) Whether the demand of dower was made within the jurisdiction of this Honourable Court

(3) Whether the defendant permanently resides at Karachi

(4) Whether at the commencement of this suit the defendant was neither living in Karachi voluntarily and permanently nor was he working for gain at Karachi

(5) Whether this Honourable Court has jurisdiction to entertain this suit

(6) Did the defendant give to the plaintiff jewellery worth about Rs. 2 lacs besides clothes and other things

(7) Whether the plaintiff relinquished her entire dower money of Rs. 50,000 under the circumstances given in para. 1 of the written statement.

(8) To what decree, if any, the plaintiff is entitled.

The plaintiff examined herself, Agha Ali Haider and put in certain documents including an alleged certified copy of entry relating to the parties' marriage. The defendant examin ed himself and also tendered certain documents in evidence. The documents will be taken note of at their proper places.

It appears that in the same year i.e., 1951, the plaintiff filed another suit No.364/51 for dissolution of marriage. That suit came up for decision before my brother Muhammad Bakhsh, J., who decided the case on 13th May 1952. My learned brother decreed the suit with the following observa tions towards the close of his elaborate judgment :‑ ‑

"On a consideration of the oral evidence given before me by the plaintiff and on a consideration of the various docu ments in the case I am unshaken in my belief that the defendant completely deserted and neglected his wife, has been guilty of a very gross cruelty to her in passing nights with other girls and avoiding contact with the plaintiff, has been very cruel to her in clandestinely running away with another girl whose patronymics are not yet known, has also been very cruel to his wife by completely neglecting not only to maintain but even to give a look‑up to the two minor daughters, aged eight and three years respectively, has completely abandoned his wife, the plaintiff, after his second marriage with Aziz Jehan, has squandered away all the jewellery and ornaments of the plaintiff and has not even repaid the loan of Rs. 1,000 which he obtained through the plaintiff from the plaintiff's mother".

It was admitted at the bar that no appeal was filed against this decree and the decree for the dissolution of marriage has become final and irrevocable with the result that relation ship of marriage no longer subsists between the parties in the suit.

Decision with reasons thereof.

Issue No. 1.‑Whether the dower amount of Rs. 50,000 was prompt or deferred

The plaintiff has stated that the dower was prompt. She has filed Exh. 5/1 which purports to be a certified copy of entries from the register of marriages maintained by Darul Qaza, Government of Bhopal. This document Exh. 5/1 shows that the dower was prompt. The learned counsel for the defen dant has, however, raised an objection that this document is not admissible. He has placed reliance on section 78 sub -clause 6 of the Evidence Act. This sub‑clause requires that the copy should be certified by the legal keeper with a certificate under the seal of a notary public, or of a British Consul or diplomatic agent. It is true that Bhopal is now situate within a foreign country and section 78 (6) would appear to apply to the document. But it has been contended on behalf of the counsel for the plaintiff that the objection was not taken at the proper time, namely, when the document came to be exhibited and it is not open to the counsel for the defendant to raise this objection at this late stage in the course of arguments. The reasoning behind this contention is that if objection had been taken at the proper time and given effect to by the Court, the plaintiff would have resorted to some other evidence to prove that in the documents prepared at the time of Nikah it was specifically mentioned that the dower was prompt. There is force in this reasoning. The plaintiff would reasonably think that the evidence of the plaintiff supported by documentary evidence would suffice to prove the point in her favour and she subsequently did not examine any other evidence on the point. Similar question came up for consideration before a Bench of Lahore High Court in the case of Fauja Singh and others v. Allah Ditta and another (A I R 1931 Lah. 722). Their Lordships observed :‑

"It is well established that where a fact has been erroneously allowed to be proved in a manner different from which the law requires, and no objection is taken in the Court of first instance such objection cannot be taken later in appeal. This view is based on the principle that if objection is taken at the proper time to the reception of certain evidence (not inadmissible in itself) owing to such evidence not being produced in the form prescribed b‑v law, an opportunity can be afforded to the party producing such evidence to remedy the defect and satisfy the requirements of the law".

I may note that in this case secondary evidence of certain documents had been allowed and objection had been taken that the secondary evidence adduced was not admissible. It is true that the observations were made with reference to an appeal but the reasoning has equal validity if objection is not taken at the time of the reception of the evidence and is taken for the first time at the time of arguments. To the same effect is the observation of the Privy Council in the case of Gopal Das and another v. Sri Thakurji and others ((1) A I R 1943 PC 83) the relevant portion is to be found at page 87 and runs thus :‑

"The endorsement "admitted against the plaintiffs" is in the form generally employed by the trial Judge under O. XIII, r. 4 for documents tendered by the defendants just as the plaintiff's documents are marked "admitted against the defendants". The endorsement means that the document is admitted in evidence as proved. Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is, irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record".

This authority is conclusive on the point that objection in such cases must be taken at the time of reception of the evidence.

In ordinary circumstances I might have entertained the objection and furnished the opportunity to the plaintiff to prove the question in dispute by other admissible evidence. But in view of what has happened in this case I consider it sheer waste of time. It is admitted that marriage between the parties has come to an end and even if the dower were a deferred one, the plaintiff would now be entitled to recover .the amount from the defendant. The defendant could have easily applied for amendment of the pleadings. He has not done so. But equity requires that the Court should not shut its eyes to what admittedly happened during the course of the trial. It cannot be denied that dower if paid is recover able from the defendant.

There is yet additional reason. The plaintiff has examin ed herself and so has the defendant. The defendant did not strike me as a truthful witness. The plaintiff, however, left a contrary impression. It is admitted by the defendant that he did not try to secure a copy of the entries in the register of marriages, although he admits that such a document was prepared at the time of marriage. This indifference on the part of the defendant to obtain documentary evidence can only be explained by the fact that the document, which is available, could not be of any help to him. I am, therefore, in a position, even on the basis of the oral testimony of the plaintiff, to record a finding, that the dower was prompt. The issue is decided accordingly.

Issues Nos. 2, 3, 4 and 5.

(2) Whether the demand of dower was made within the jurisdiction of this Honourable Court

(3) Whether the defendant permanently resides at Karachi

(4) Whether at the commencement of this suit the defendant was neither living in Karachi voluntarily and per manently nor was he working for gain at Karachi

(5) Whether this Honourable Court has jurisdiction to entertain this suit

All these issues can be decided together. They are really due to a mis‑conception on the part of the 4efendant that residence of the defendant within the jurisdiction of the Sind Chief Court, now taken place by the Karachi Bench, was necessary to confer jurisdiction on this Court. It was admit ted that the defendant has been residing in Pakistan. What was alleged was that he had no fixed abode, was roaming about from Karachi to Lahore and then to Dacca and ultimate ly he took up residence in Dacca and at no time he had permanent residence in Karachi Once it is admitted that the defendant being a debtor resided in Pakistan, the legal principle that it is the duty of the debtor to find the residence of the creditor and make payment there comes into play. This principle is very well settled. I may refer to a case Sm. Tusliman Bibi v. Abdul Latif Mia (A I R 1936 Cal. 97). The general rule is that where no place of payment is specified either expressly, or by implication, the debtor must seek his creditor. The only limitation to this principle of English law is that the creditor must reside within the realm. If dower amount is payable, the plaintiff is in the position of a creditor while the defendant occupies the status of a debtor. The plaintiff admittedly resides in Karachi and, therefore, the Sind Chief Court and now the Karachi Bench of the West Pakistan High Court is the proper forum for the suit. In this view it is not necessary to decide whether the defendant was actually residing at Karachi on the date of the, institution of this suit. This much, however, is clear that he occasionally visited Karachi and at times resided at Karachi with his relations or in some hotels.

Issue No. 6.‑Did the defendant give to the plaintiff jewellery worth about Rs. 2 lacs besides clothes and other things

This issue is wholly redundant. The counsel for the defendant concedes this to be so.

Issue No. 7.‑Whether the plaintiff relinquished her entire dower money of Rs. 50,000 under the circumstances given in para. 4 of the written statement

This is the real vital issue in the case. The burden of proving relinquishment lies clearly on the defendant. The defendant has examined himself and put in two letters admittedly written by the plaintiff Exhs. 8 and 9. It is really Exh. 8 which is relevant for the purposes of this issue. The circumstance under which Exh. 8 was written is apparent from its very phraseology. It runs thus " We pledge to live a loving and devoted husband and wife hereafter and I forego the meher ".

(Sd.) Mrs.

12th May 1950.

Witness 1st Witness

I certify that the above I certify that the above

(hand) writing is of Mrs. hand writing is of Mrs. Shah

Shah Bano Iftekhar. Bano Iftekhar.

(Sd.) Illegible, (Sd.) Illegible,

12th May 190. 12th May 1950.

P. S. (Please sign. Thank you. S. B.) ".

I had quoted the concluding remarks of my brother Muhammad Bakhsh, J. just to indicate the sort of relationship that existed between the parties That observation is fully supported by the content of this document Exh. 8. It is very easy to visualize notwithstanding the protest from the defend ant or any exaggerated statement from the plaintiff that the relations on 12th May 1950 between the parties were not good. The wife hankered for an amiable and loving husband. The subsequent conduct of the defendant shows that he was after some girl whom he ultimately married. Rumours of impending second marriage must have reached the ears of the lady and created an anxiety to win and retain the affection of the husband. On the other hand the husband, crafty as he appears to be, wanted to get off a liability, I am perfectly clear in my mind that the husband, namely, the defendant must have suggested to the plaintiff to forego the " meher " as an earnest of sincerity toward the defendant. This much is however, clear from the document that it was intended to be signed by both. The plaintiff signed it but the defendant seemed to have backed out. The defendant himself admitted in cross‑examination that the consideration for the plaintiff relinquishing her dower was that illwill between them would disappear. He further admitted that he did not agree to give any writing to the effect that he would be living happily with the plaintiff.

The writing, to my mind, cannot amount to an effectual release for two reasons. In the first place this was not a free action of the plaintiff. It may not have been extorted by physical force but it was definitely obtained through undue influence which a woman in the position of the plaintiff could hardly resist. She was then not a free agent nor she was in a position to realize the full implication of writing these three words " I forego Meher. A similar position was considered by a Bench of the Bombay High Court in the case of Hasnumiya Dadamiya v. Halimunnisa Hafizullah. (A I R 1942 Bom. 128) In this case the Muhammadan widow had remit ted her dower claim at the funeral of her husband. Their Lord ships observed :

" The Court must be satisfied that she realised what she was doing and the consequences of it. It has been so held in a very similar case, 47, Calcutta 537. In the course of the judgment, the Court observed

" It is conceded by the learned vakil for the respondent that free assent must be established. We think she (i.e., the widow in that case) was prompted by others and was not a free agent at the time. She was not in a position to exercise free and deliberate judgment and influence was exercised which she was not in a position to overcome ..

I am in respectful agreement with the observations made by their Lordships of Bombay High Court and Calcutta High Court. In a case like the present l one where the husband betrays indifference for the woman and gives out so that he wants to test the sincerity of the woman, or where the woman feels that the possible way to win or retain the affection of the husband is to remit the dower amount, she cannot act but in the way in which the plaintiff did, but she is not a free agent, she is not able to with stand any suggestion to that effect and it would be iniquitous to hold that a woman who remits dower in such circumstances is bound by it. My mind is not prepared to accept such a declaration as an effective release of monetary liability. I have come to the conclusion that the document Exh. 8 does not amount to an. intentional and deliberate relinqishment. In the second place the document was intended to be a bilateral agree ment and had to be entered into by both the parties. Mr. Faruqi rightly contended that it was merely an executory document. The defendant backed out his part of the con tract and consequently the intended agreement never came into being. It is not open to the defendant to take advantage of an incomplete agreement and the document Exh. 8 fails to effect a release. The result is that the defendant has failed to show that the plaintiff has relinquished her dower.

Issue No. 8.‑To what decree, if any, the plaintiff is entitled

The plaintiff is entitled to get Rs. 50,000 besides interest at the usual rate from the date of the institution of the suit till realisation and cost. This suit was filed in forma pauperis and the Court fee is payable by the defendant. The suit is decided accordingly.

K.B.A. Suit decreed.

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