Ms. Ghulam Kubra Bibi v. Mohd. Shafi Mohd. Din, AIR 1940 Pesh. 2 - CLAT PDF Download

Introduction

The case involved the restitution of conjugal rights under Muslim Law.

Facts

• Mohammad Shafi filed a lawsuit against his wife, Mt. Ghulam Kubra, seeking the restitution of conjugal rights.
• Additionally, he sought an injunction against her parents, preventing them from interfering with his marital relationship.
• Mt. Ghulam Kubra's defense was that she was never married to Mohammad Shafi.
• The question of the woman's age at the time of the supposed marriage became central to the case.

Both parties presented evidence, including:

• A Mullah testified that he conducted the nikah at the grandfather's request but denied anyone inquired about the bride’s consent.
• Mistri Abdul Karim provided vague testimony, mentioning two unnamed witnesses.
• Mohammad Ramzan and Mohammad Din claimed to have witnessed the nikah but did not offer further details about the ceremony.
• Mohammad Ramzan was identified as the plaintiff’s neighbor, and Mohammad Din as his employer for the past 8–9 years.
• The trial judge concluded that the girl was eligible for marriage at the time of the nikah and declared the marriage valid. He granted the decree as requested against all defendants.
• An appeal was filed at the District Court, where both parties agreed the girl was eligible to marry when the marriage took place.
• The Judge upheld the restitution of conjugal rights but overturned the injunction against the girl's parents.
• The appeal was partially accepted, specifically changing the injunction-related part of the order.

Issues Involved

• Whether the parties were competent to give consent at the time of marriage?
• Was there a proposal and acceptance of the marriage?
• Were witnesses present, and was the bride’s consent given in front of them?
• Can restitution of conjugal rights be granted?

Observation

• The Court emphasized that the customary practices followed in India for solemnizing marriages require clear evidence of the entire marriage procedure.
• The vague claims of two witnesses needed to be substantiated to prove that the marriage was properly conducted.
• The officiating Mullah testified that no one checked the girl’s willingness to marry.
• The girl was 17 years old when the marriage occurred, and the court noted that the parties were likely unaware of Islamic law stating a girl reaches marriageable age upon puberty (typically at 15), not necessarily at 18 years, as per general law.
• The girl was given away by her grandfather without direct consultation.
• Under Islamic law, a minor girl can be given away by her father, grandfather, or other paternal relatives, and this results in a valid nikah.
• However, there was uncertainty about whether the witnesses had seen the girl being given away by her grandfather.
• Given these considerations, the court ruled that no valid marriage took place, and thus Mohammad Shafi had no right to seek restitution of conjugal rights.

Conclusion

• The appeal of Mt. Ghulam Kubra was accepted, and the suit of Mohammad Shafi was dismissed with costs throughout.