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Miscellaneous Appeal No. 43 of 1952, decided in 1952.

, S. 47--- Expression 'Court' in section‑Definition of‑‑Order of a single Judge of Chief Court of Sind sitting as Principal Civil Court of Original Civil Jurisdiction‑Whether appeal lies under section to a Bench of the same Court from such order‑Civil Procedure Code (V of 1908) S. 2‑Sind Courts Act (of 1926) Ss. 8 and 14.

The expression 'Court' in section 47 of the Guardians and Wards Act (VIII of 1890) from whose order an appeal lies to the High Court, is defined in clause (a) subsection (5) of section 4 of the Act, as the District Court having jurisdic tion to entertain an application under the Act for an order appointing or declaring a person to be a guardian. The term District Court' as defined in subsection (4) of section 4 of the Act as having the meaning assigned to it in the Civil Procedure Code and as including the High Court in the exercise of its Ordinary Original Civil Jurisdiction. In clause (4) of section 2 of the Civil Procedure Code. The District Court is called the principal Civil Court of Original ' Jurisdiction. Section 8 of Sind Courts Act 1926 makes the Chief Court of Sind, the principal Civil Court of Original ‑Jurisdiction for the Civil District of Karachi and section 14, subsection (1) of the same Act provides for an appeal to a Bench consisting of 2 or more Judges of this Court, from an order of a single judge.

, S. 25--- Application under section by husband for custody of his minor wife‑Absence of proof of marriage and puberty‑Whether husband entitled to custody‑Presumption of puberty under Muslim Law.

A Muslim husband cannot claim custody of his minor wife under section 25 of the Guardians and Wards Act, 1890 unless he proves that the wife had attained puberty and that a marriage took place according to Muslim Law.

Puberty under Muslim Law is to be presumed in the absence of evidence, to have been attained on the completion of the age of 15 years, but like marriage it is a fact, proof of which is governed not by Muslim Law but the Evidence Act, 1872.

Mst. Atika Begum v. Muhammad Ibrahim Rashid Nawah A I R 1916 P C 250 and Mst. Butoolun and others v. Mst. Kulsoam (1876) 25 W R 444 ref.

Wahiduddin for Appellant.

Sharifuddin and Nasiruddin for Respondent.

---This is an appeal under section 47 'of the Guardians and Wards Act, VIII of 1890, from an order of Constantine, C. J. returning the custody of the minor girl Hawabai to her husband the respondent, upon his application under section 25 of the Act. The minor's father Abdul Razzak, the appellant from whose custody she was ordered to be returned has appealed.

The respondent has contended that no appeal lies under section 47 of the Act as the learned Chief judge while making the order was sitting as the High Court and that it would be absurd to hold that section 47 of the Act provides for an appeal from the High Court to the High Court.

The expression "Court" in section 47 of the Act, from whose order an appeal lies to the High Court, is defined in clause (a) of subsection (5) of section 4 of the Act, as the District Court having jurisdiction to entertain an application under the Act for an order appointing or declaring a person to be a guardian. The term "District Court" is defined in subsection (4) of section 4 of the Act as having the meaning assigned to it in the Code of Civil Procedure, and as including a High Court in the exercise of its ordinary original civil jurisdiction. In clause (4) of section 2 of the Code of Civil Procedure, the District Court is called the principal Civil Court of original jurisdiction, Section 8 of Sind Courts Act, 1926 makes the Chief Court of Sind the principal Civil Court of original jurisdiction for the Civil District of Karachi and section 14, subsection (1) of the same Act provides for an appeal to a Bench consisting of 2 or more Judges of this Court from an order of a single judge. The appeal therefore lies and is properly before us.

Section 141 of the Code of Civil Procedure, 1908, applies to the proceedings on the respondent's application under section 25 of the Guardians and Wards Act. At the hearing the Court itself examined the minor Hawabai who was cross -examined by the learned Advocates for .the appellant and the respondent. At the end of the evidence the respondent's Advocate said to the Court that he closed his case. The appellant then examined Aishabai the minor's paternal aunt and Abdul Karim the minor's paternal grandfather.

The respondent's application was dependent upon proof of marriage which had been denied, and the law governing it was not the Muslim Law of evidence but the Evidence Act, 1872. The fact of the marriage having taken place had there fore to be proved as any other fact under the Evidence Act. and the minor's statement that she had been married to the respondent was not conclusive. The minor's answers to the learned Chief Judge's questions were significantly halting and were prompted by a desire for an immediate decision as the following record of her evidence show :‑

"My name is Hawabai, Father's name Abdul Razzak, Religion Muslim, Caste Memon, Age about does not reply, Occupation nothing, Residence Karachi.

Q, How old are you A. Does not reply. I left School a long time : I studied upto 2nd English standard‑at St. Joseph's Convent. I left because my education ended. I am living with my grandfather. My father is alive : he lives with us : I have a step mother who lives with us. Q. The applicant states he is your husband, and wants to have custody of you. With whom do you want to live A. Advocates leave the room. The girl asks if I will finish the case to‑day, and that her wishes will be respected. On my saying yes, she answers. Hesitates. Q. Were you married to Muller A. Yes. Q. With whom do you want to live A. With my husband. Q. How old are you A. 16.

Q. If there is any doubt about the marriage are you willing to marry him again A. I was married to him properly".

In cross‑examination to the appellant's Advocate she stated that she was married to the respondent on 14th Novem ber 1950 but did not know who her Wali or Vakil was. She did not remember the name of the Maulvi who bad performed the Nikah nor the names of the witnesses at the Nikah, but the Nikah had taken place in a flat in Shakur Manzil at 4 p.m. where she went from the flat of her paternal grandmother and paternal aunt, half an hour before the Nikah. She stated she resided with the respondent in his flat as his wife till 6th December 1950. Her father, the appellant, was not present at the marriage and the marriage had taken place without his permission. She stated to the Court that she had attained puberty when she married the respondent.

The learned Advocate for the appellant put to the minor a document which purports to be a copy of a record made by S. Mahboob Shah, upon paper which shows that it was issued from the office of the Qazi of Karachi regarding the trans action of the marriage of the minor stated to have been aged 15 years with her own consent with the appellant in the presence of Muhammad Issa her brother as her Walt and Vakil and S. Ziaul Hassan, jeweller and S. Abdullah son of Hassan Shah, jeweller among others as witnesses. The record purports to bear the signatures of the minor, the Wali or Vakil, the respondent and the witnesses and the thumb impression of Zainab Bibi the minor's paternal grandmother in token of having given her permission to the marriage. This document is not evidence and the minor's statement that its contents are correct, does not make them evidence. It is not shown that it is a copy of an entry in any register of marriages required to be maintained by statute. A plain reading of it shows that it purports to be copy of a record of a transaction which took place in the pre rice of certain people. The original was not produced and one except the minor who had been examined by the Court itself, was called in evidence to depose to the transaction and the circumstances in which it took place. The minor's statement, devoid as it is of material particulars, is the only evidence in support of the marriage having taken place.

In order to succeed the respondent had to prove the case set up in his application namely, that the minor was 15 years old or had attained puberty on 14th November 1950 the date of marriage and that the marriage took place on that date in accordance with the requirements of Muslim Law. Evidence was brought on record for the appellant, to show that the respondent had clandestinely prompted the minor to give evidence in his favour on these points. Exh. 11 contains the terms in which the respondent wanted the minor to write to him so that the letter might be used in Court to enable the appellant to get the custody of the minor. It contains the following statements :‑

"I am 15 years old. I commenced menses more than one year ago. About 1 years ago. I married of my own free will. It took place in Shakur Manzil. Latter on went to Grant Hotel, Malir with 10‑12 persons including the two brothers of Muhammad Muller Sahab. Came back home after taking meals. After the marriage I often used to sleep with my husband. We sometimes slept in No. 9 and some times in No. 3. My marriage took place in No. 9, Shakur Manzil, instead of No. 3, Shakur Manzil, because there is no furniture, etc., in No. 3, Shakur Manzil and No. 9 is a big one having 2 flats and there was great facility for people to sit there".

This is one of the documents Exhs. 8 to 13 which Aisha proved to be in the writing of the respondent and which she recovered from the minor.

The date of birth of the minor was agreed to before us by the learned Advocates for the appellant and respondent to be 5^th September 1937 and her age at the time of the alleged marriage, viz., 14th November 1950 as 13 years 2 months and 9 days. In Muslim Law, puberty is to be presumed, in the absence of evidence, to have been attained on the completion of the age of 15 years and the respondent wanted the minor to state that she was 15 years of age when married. In the event of the minor being proved under 15 on the date of the alleged marriage, he wanted her own statement that she had attained puberty about a year and a half before.

Aisha in her evidence stated that the minor had not attained puberty at all and that if she had done so, Aisha would have come to know. She has been disbelieved because she now lives with the appellant and her father and mother and is interested in supporting the case of the appellant.

Puberty, like marriage, is a fact proof of which is governed not by Muslim Law but the Evidence Act, 1872. The onus of proving the fact was upon the respondent and the evidence which the minor gave on this point was purposefully prompted by the respondent, with the result that a jury would have little reason to rely upon her evidence.

The record of the case contains evidence to render improbable that the marriage which the respondent was propounding had taken place at all. The minor had been in the custody of the appellant her father till 13th November 1950, on which date Mr. Abdul Rasul Qazi, City Magistrate of Karachi, handed over her custody to Zainab Bai her paternal grandmother. On that day the minor went to her paternal grandmother Zainab Bai and the marriage is alleged to have taken place the very next day, viz., 14th November 1950, without the knowledge or consent of tile minor's father. The haste is indeed startling and unnatural. Her paternal grandfather was in Bombay and as Exh. 25 (which is a letter by the respondent to him) shows, the respondent telephoned to him on 15th November 1950 and wrote to him the letter Exh. 25 on 18th November 1950 without making the slightest mention of the alleged marriage having taken place oil 14^th November 1950. When Abdul Karim the grandfather was being examined and said that he received Exh. 52 from the respondent, the respondent stated to the Court that he did not write the letter but that it was written by his clerk to Zainab's dictation and he did not know anything about it till two days later. This denial was not on affirmation and came immediately after Abdul Karim's admission that he did not know the respondents writing. We have scrutinised the bottom portion of that letter and find there written in Urdu "Munjanib Dr. Muhammad Muller", which means "On behalf of Dr. Muhammad Muller". These words in Urdu appear crossed out, and then appears the signature of the respondent both in Urdu and in English. We have compared the English signature with his admitted signature on the Vakalatnama and close comparison shows that the signatures are of the same person. Similarly we have compared the Urdu signature with the Urdu signatures of the respondent on Exhs. 12 and 13 which both the minor and Aisha prove to be in his hand writing and find that they are of the same person, The res pondent's denial was clearly false and is evidence against him. To Aisha the Court put the question. "When did you first learn that Muller claimed to have married Havabai and her answer was, "In December 1950". There was no cross -examination upon this point on the part of the respondent.

These considerations militate against the marriage having taken place as propounded.

The respondent though sitting in Court chose not to give evidence nor did he summon or produce in Court the Mullah, the Wali, or Vakil, the witnesses to the marriage or the paternal grandmother to prove the factum of the marriage. To this Court he appears to have stated that Mulla was ill but there was no evidence of the illness. We can see no explanation for the withholding of himself or of these witnesses or of at least those of them who were independent of the appellant, to prove the marriage, and draw under section 114, illustration (G), Evidence Act an adverse inference against the respondent.

There is on record evidence which prima facie establishes the motive of the respondent. Aisha Bai said that her father had remained in Bombay to wind up his business and had left her mother, herself, her brother, the appellant, his wife and their children in Karachi and that he had sent to them sums of money amounting to about 4 lacs of rupees. Exh. 19 is an account of the sums of money which the respondent obtained from Aisha Bai and Zainab Bai by cheques drawn upon their joint account with Grindlays Bank Ltd., Karachi. It shows that large sums of money amounting to about Rs. 40,000 were received by the respondent from them. Aisha Bai speaks of Rs. 20,000 having been used to finance the partnership between the respondent's brother Noor Muhammad, and her own husband which is all lost and of her mother Zainab Bai having spent Rs. 10,000 upon the respondent and of the respondent having taken another Rs. 17,000 from her on loan. There is not a word of explanation how the respondent who is over thirty years of age and in business, ever came to take from these two women such large sums of money. The minor could easily be used by such a person as a means of further exactions from her grand parents. As Lord Atkinson says in A I R 1916 P C 250 at p. 251 in relation to such cases, "Avarice possibly more frequently than affection tempts to illegitimate enterprises, and to the manufacture of evidence to justify them".

We find the marriage not proved. This is case of direct and not indirect or presumptive proof, and the respondent who claim to have married the minor according to Muslim Law in the presence of living and procurable witnesses, has failed to give evidence himself and to examine any of these witnesses in Court. In (1876) 25 W R 444, where the same conclusion was arrived at because important witnesses to the marriage and the persons propounding them were not called in evidence, Garth, C. J. and Ainsile at p. 446 observed :‑

"In this case we cannot lose sight of the fact, that the ladies whose marriages are the subject of dispute were themselves parties to the suit. They intervened for the express purpose of proving their own claims and those of their children. There was no reason whatever why, if they had really married, their marriages should not have been directly proved. Other persons besides themselves would necessarily have been present at the marriage ; for the Hedaya, Book 11, Chapter 1, lays down a positive rule that marriage, when both the parties are Mussulmans, cannot be contracted but in the presence of two male witnesses or of one man and two women. There is also the person officiating, who is styled the Mullah, or Kazi, and there are generally guests, Indeed, one witness, Seelamut Ali, says "Batoolan was married in my presence". This witness was called by the co‑defendant Shurufoonnessa, but the appel lant's pleader having got this answer out of him stopped short, and made no enquiry as to any further pa very remarkable omission when it is considered that if the witness was really telling the truth, he might have related all the circumstances of the marriage, and established it beyond all questions.

This was the only attempt made to prove the fact of marriage in either case. The ladies themselves have abstained from giving evidence; not a single witness who was present, with the one exception already mentioned, has been called ; and no explanation has been offered why the ladies were not examined, or other witnesses not produced".

As we find the marriage not proved, it is not necessary to examine the further questions whether the minor had attained puberty at the date of the alleged marriage and if not whether the alleged consent of the paternal grandmother Zainab Bai was given or was sufficient for the purpose of a valid marriage, and if not, whether the marriage was void or voidable. Nor is it necessary now to consider whether there is in this case evidence to show that it is for the welfare of the minor to return to her husband's custody. As to the last mentioned question we should have seriously to consider why this is not truly a case of avarice moving the husband.

For these reasons we allow the appeal, reverse the order appealed against and restore the minor to the custody of the appellant. The respondent will bear the appellant's costs of the appeal and the application.

K. B. A. Appeal allowed.

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