- (1.) M. A. Khan, J. This is an appeal arising out of the judgment and decree dated 12-12-1995 passed by the learned Principal Judge, Family Court, Lucknow, thereby dismissing the suit of the plaintiff-appellant husband who had prayed for a decree for declaration of non-performance of the marriage between him and Smt. Firdaus Jahan, the defendant-respondent.
(2.) THE plaintiff-appellant Zishan Ahmad, claiming himself to be an Advocate by profession had filed Suit No. 147 of 1986 against Smt. Firdaus Jahan with the allegation that Smt. Firdaus Jahan is not at all his legally wedded wife. Such marriage between him and Firdaus Jahan never took place and she had filed a petition under Section 125 Cr. P. C. against him with false allegations though there exits no relationship between him and Smt. Firdaus Jahan like that of husband and wife. He has further pleaded that sister of the plaintiff used to teach the children of the defendant's uncle and defendant, her brother and her mother used to visit the defendant's uncle house and they knew the plaintiff. THE plaintiff is a practising lawyer and brother of the defendant whose wife has ran away with some body else came to contact the plaintiff for getting a legal advice and this is how these are only contacts if at all between him and Smt. Firdaus Jahan and when the petition under Section 125 Cr. P. C. has been filed with a false and frivolous allegation and there had been no relationship of husband and wife between him and Smt. Firdaus Jahan, hence the suit for declaration. The defendant-wife filed written statement and denied the plaint allegations. She has pleaded that she is legally wedded wife of the plaintiff. The marriage took place at Lucknow on 14-7-1985 with a dower fixed. She always performed her marital obligations with the plaintiff who in fact developed some relations with another woman and the plaintiff turned out the defendant from his house on 29-9-1985 and the plaintiff also treated her with cruelty and also demanded money from her parents. She was forced to move a petition under Section 125 Cr. P. C. for maintenance. On these pleadings of the parties, the learned lower Court framed as many as four issues in the case. It recorded evidence of both the parties and after appraisal of the same and after hearing arguments of the learned Counsel for the parties, came to the conclusion that the marriage between the plaintiff and defendant is proved and as such the relief of declaration for non performance of the marriage has been refused and the plaintiff's Suit has been dismissed. Aggrieved by the said judgment and decree the present appeal has been filed. We have heard the learned Counsel for the parties at length and we have gone through the record.
(3.) LEARNED Counsel for the appellant has submitted that Nikahnama has been brought on record from the side of the defendant-wife but the said Nikahnama does not bear the signatures of the plaintiff and, therefore, there had been no contract for the marriage is at all proved. Had there been any such marriage, the Nikahnama which has been brought on record must have been bearing the signatures of the plaintiff. On the other hand, it has been submitted by the learned Counsel for the respondent that the witnesses of Nikah, i. e. the performance of marriage have been examined and even the secondary evidence of the person who performed the Nikah has been adduced. It was raining on the date when the marriage was performed. The signatures of wife Smt. Firdaus Jahan were obtained on the Nikahnama but most probably due to rain or otherwise the signatures of the plaintiff-husband could not be obtained but even in the absence of such signatures there was contract of marriage between the plaintiff and the defendant and the Suit has been filed with absolutely false allegations. LEARNED lower Court turned down the plea of the plaintiff and dismissed the Suit. It has been submitted before us by the learned Counsel for the appellant that Nikahnama is not at all proved and there had been non- performance of marriage and Nikahnama in question does not bear the signatures of the plaintiff and the defendant had been claiming herself to be the wife for certain other reasons. We have considered the arguments of the learned Counsel for the parties and we find that Mahomedan Law does not at all require the Nikahnama to be reduced into writing. Section 251 of Mulla's Mahomedan Law says that every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. Explanation to this Section further says that puberty is presumed, in the absence of evidence, on completion of the age of fifteen years. Thus the personal Mahomedan Law does not recognise any such age of 18 years or above for performance of the marriage and it simply requires that every Mahomedan of sound mind who has attained puberty may enter into a contract of marriage. Thus the marriage, according to Mahomedan Law is defined to be a contract which has for its object the procreation and the legalizing of children. Marriage according to Mahomedan Law is not a sacrament but a civil contract. All the rights and obligations it creates arise immediately and are not dependant on any condition precedent such the payment of dower by husband to a wife.;