Kazi Siddique Hossain vs Salima Khatoon

Bachawat, J.—The plaintiff sues to recover her prompt dower on the allegation that she is the lawfully wedded wife of the defendant and that the dower was fixed at the time of the marriage. The lower appellate Court has found that the plaintiff was duly married to the defendant at the house of the plaintiff''s mother in Noapara on the 26th December 1948. and that the dower claimed was fixed at the time of the marriage. The finding also is that the defendant cohabited with the plaintiff as man and wife and that as a result the plaintiff conceived and gave birth to a child.

The finding is a finding of fact and is amply supported by the evidence on the record. There is a direct evidence of marriage given by the plaintiff and the eye-witnesses P.W. 1, P.W. 2, P.W. 4. P.W. 5 and P.W. 6. Their evidence as to marriage is corroborated in material particulars.

Both the plaintiff and the defendant were eager to marry each other. They freely intermixed, with each other and used to go to cinemas alone, The defendant admitted that he gave hope of marriage stating that he would obtain the consent of his father. This admission is contrary to the case made in the written statement that the offer of marriage had been firmly refused.

The ring engraved with the defendant''s name and presented by him to the plaintiff at the time of his marriage was produced at the trial. The defendant''s case as to how the plaintiff came to be in possession of the ring is not credible The fact that the defendant cohabited with the plaintiff and had intercourse with her is corroborated by the fact that the defendant presented a double bed mosquito curtain to the plaintiff.

It is not the case of the defendant the plaintiff is his concubine or that he had illicit intercourse with the plaintiff. The defendant totally denies marriage as also cohabitation with the plaintiff.

The finding of fact is binding upon me in Second Appeal. It is urged, however, that the judgment of the lower appellate court is not a proper judgment of reversal. It is said that the lower appellate Court did not consider Ext. A and Ext. A(1). There is no substance in this contention. The lower appellate Court observed: "Some letters were proved in evidence in this case. These are in Ext. A series. I have gone through these letters. The letters Exts. A, A(1) and A (3) were written by the plaintiff''s sister''s husband Hasib Choudhury. They do not disprove the marriage between the plaintiff and the defendant."

Ext. A is dated the 22nd February. 1948. Ext. A(1) is dated the 29th February, 1948. These two letters were preceded by Ext, 1 dated the 17th February, 1948, written by the plaintiff to Hasib. Ext. 1 shows that at that time the father of the plaintiff had come to know of the presentation or the ring by the defendant to the plaintiff. There is good ground for believing that from that time onwards the defendant sought to avoid the company of the plaintiff in order to avoid the displeasure of his father. Ext. A and Ext A(1) are obvious attempts by Hasib Choudhury to reconcile the defendant to the plaintiff.

Mr. Guha next contended that the essentials of a marriage valid under the Muslim law have not been proved, and there being no lawful marriage there could be no lawful promise to pay dower to the plaintiff.

Sir Roland Wilson in his Digest on Anglo Muhammadan Law, Sixth Edition, section 24, page 100 observed: "Words of proposal and acceptance must be uttered by the contracting parties or their agents (vakils) in each other''s presence and hearing and in the presence and hearing of the two male, or one male and two female, witnesses, who must be sane and adult Muslims; and the whole transaction must be completed at one meeting." This passage has been quoted with approval and followed in (Aklemannessa v. Md. Halem) (1) ILR 31 Cal. 849: 8 C.W.N. 705 at 710 and in Sahabi Bibi Vs. Kamaruddin Sarkar .

''Akd'' or the marriage contract implies ijab (proposal) and qabul (acceptance); see Ameer Ali''s Mohammedan Law, Fifth Edition, Volume II, page 273; see also Sir Dinshah Mulla''s Mohammedan Law. Fourteenth Edition, Article 252, page 231: Hamilton''s Hedaya, Volume I, Book II, Chapter I, page 72; Baillie''s Digest of Mohammedan Law, Part II, Book I, Chapter I, page 1.

The lower appellate court has found "there was proposal and acceptance in the presence of witnesses at the same majlis and a valid and legal marriage was contracted between the plaintiff and the defendant."

The finding that there was a lawful proposal by the plaintiff through her vakil P.W. 2 Sk. Altab is not challenged,

Mr. Guha, however, strenuously challenges the finding that there was acceptance by the defendant of the plaintiff''s proposal of marriage. He contends that there is no evidence on the record to justify that there was such acceptance.

It is true that there is no categorical statement on the record by any of the witnesses that the defendant uttered words signifying acceptance of the plaintiff''s proposal for marriage. At the same time, there is also no evidence on the record that the defendant did not utter such words. From circumstantial evidence on the record in the absence of direct witness the court is entitled to draw the inference that the defendant in fact uttered words of acceptance. See in this connection Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta, . The defendant expressly came to Nawapara to attend the marriage majlis. A Kaji officiated at the marriage ceremony. There were two gawas or witnesses to the marriage. P.W. 2 Sk. Altab who acted as vakil of the plaintiff informed the defendant of the consent of the plaintiff. A dower was fixed. The defendant presented to the plaintiff a ring and a pair of ear-rings. P.W. 1, P.W. 2, P.W. 6 and P.W. 7 stated that the marriage was solemnized. In the absence of evidence to the contrary it must be presumed that the marriage was duly solemnized and that words of acceptance were uttered by the defendant. Omnia praesumuntur rite esse acta. The presumption is fortified by the fact that the marriage has been consummated.

The conclusion as to the validity of marriage may also be rested on a somewhat different ground. The essence of Muslim marriage is mutual consent. The proposal and acceptance need not be in any particular form. Form must be distinguished from substance. See Syed Ameer Ali''s Muhammadan Law. Fifth Edition, Volume II, page 286. The same learned author at pages 303 and 307 observes: "The consent may be given either in express terms or by implication. The Bazazia, quoting the Badaia, states that assent implied by mere conduct is sufficient. For example if a man were to propose marriage to a woman on a dower of 1,000 dirhems, and the woman says nothing, but merely accepts the dower, according to the Bazazia this would amount to a valid assent. But the author of the Muhit dissents from this view."

In the instant case the proposal of marriage was sufficiently accepted by fixing and agreeing to the dower coupled with the presentation of a ring and a pair of ear-rings. Dower is an essential element of marriage under Muslim law; see (Hamira Bibi v. Zubarda) (4) (43 I.A. 294, 300), Sir Roland Wilson''s Anglo-Muhammadan Law, Sixth Edition, Article 41, page 116. There can be no dower unless there is marriage and marital privilege. Fitzgerald in his Look on Muhammadan Law, page 37 observes: "The ''pillars'' (arkan) or essentials of a contract of sale are sometimes said to be the thing sold and the price, and sometimes the declaration and acceptance. So also in marriage. Marital privilege and mahr are the objects interchanged: the consent of both parties, bride and bridegroom, is a sine qua non."

In Mt. Sashiram v. Md. Husain (5) (I.L.R. 16 Luc 615) the Court observed: "Irshad Ali Khan P.W. 21 has stated that the plaintiff gave her consent to the marriage and Muhammad Bakhsh P.W. 22 has stated that Ghulam Muhammad agreed to the dower. We think this was sufficient proposal and acceptance. The Muhammadan Law does not prescribe that the proposal and acceptance should be made in any particular form."

The cases relied upon by the defendant, namely. (Aklemannessa v. Md. Halem) (1) (I.L.R. 31 Cal. 849) Sahabi Bibi Vs. Kamaruddin Sarkar and (Jagu Bibi v. Mesal) (6) ( ILR 63 Cal. 615) are distinguishable. In ILR 31 Cal. 849 the court remanded the case in order that the court below might determine upon the evidence whether all the requirements of a valid Muslim marriage had been established. In Sahabi Bibi Vs. Kamaruddin Sarkar a suit was for restitution of conjugal rights by the alleged husband was dismissed. The alleged wife was not present at the marriage majlis, nor was she represented by a vakil. There was no lawful proposal by her or on her behalf. The marriage was not consummated. In (Jagu Bibi v. Mesal) (6) ( ILR 63 Cal. 615 a charge of bigamy failed because the prior marriage had not been proved. There was no proof either of proposal or of acceptance. There was no evidence that dower had been fixed.

Mr. Guha next contended that the evidence on the record does not establish that P.W. 2 Sk. Altab was duly appointed as the vakil of the plaintiff. Mr. Guha contended that the vakil must be appointed in the presence of two witnesses. He relied upon (Mt. Ghulam Kurba v. Md. Shaffi) AIR 1940 Pes 2.

P.W. 2 Sk. Altab who acted as vakil stated that he took the ejab or the plaintiff. Ejab is authority to act on behalf of a party in the matter of marriage; see (Jagu Bibi v. Mesal) (6) ILR 63 Cal. 615.

The appointment of a vakil is not invalid because such appointment is not made in the presence of two witnesses. Syed Ameer Ali in his Muhammadan Law, Fifth Edition, Volume II page 316 observes: "Marriages may be contracted among the Sunnis and the Shiahs through the agency of proxies or vakils. As already stated for their appointment witnesses are not necessary, and their powers are governed by the same rules of law as apply to other contracts."

Indeed even the act of a fazuli or person acting as a vakil without any authority to do so may be ratified; see Sir Rolan Wilson''s Anglo-Muhammadan Law, Sixth Edition, section 28, page 103. Consummation of marriage is sufficient evidence of ratification.

No other ground has been urged in support of the appeal.

The appeal is dismissed with costs. Leave to appeal under Clause 15 of the Letters Patent is refused.