MT. GHULAM KUBRA BIBI VS MOHD. SHAFI MOHD. DIN,1940.

INTRODUCTION:

Ghulam kubra bibi vs Mohd shafi mohddin, 1940 is one of the important case relating with the legal disputes under the Muslim marriage. This case involves Ghulam kubra bibi as the appellant and Mohd shafi Mohd din as the respondent. The matter was appealed before Peshawar high court and the judgement was delivered by j. Mir Ahmad on 8th dec 1939.

FACTS OF THE CASE:

Mohammad Shafi sued Mt. Ghulam Kubra for compensation of intimate freedoms. He likewise impleaded her folks and asked that a directive ought to be given against them to limit them from meddling in his conjugal relations with his significant other. The protection taken by Mt. Ghulam Kubra was that she was never hitched to Mohammad Shafi. There was likewise an inquiry whether the lady was old enough when she was hitched. Proof was driven by one or the other side. The Mullah showed up and he said that he read the nikah at the occasion of the grandfather of the young lady. He completely rejected that anybody was shipped off the young lady to enquire from her whether she consented to the marriage. One Mistri Abdul Karim, then again, dubiously removed that there were two observers of the nikah. He didn’t give their names. Two observers, Mohammad Ramzan and Mohammad Racket were delivered who affirmed that they were the observers of the nikah. They were again pithy, in light of the fact that they halted at that, and gave no detail with respect to what was finished by them. Mohammad Ramzan conceded that he was the neighbor of the offended party. Mohammad Commotion didn’t reject that the offended party was working with him for the last 8 or 9 years.

The preliminary Adjudicator held that the young lady was old enough when she was hitched. He was of the view that the marriage had been demonstrated. He, in this way, without a doubt a pronouncement as petitioned God for against every one of the litigants. An allure was liked to the Area Court. It was conceded by both the gatherings under the steady gaze of the took in Extra Adjudicator that the young lady was old enough when the marriage was held. The Adjudicator kept up with the pronouncement for compensation of intimate freedoms. However, he didn’t figure it important to give an order to the guardians of the young lady. He, accordingly, acknowledged the allure for this degree, that he put away the part of the request connecting with directive. Mt. Ghulam Kubra has happened upon additional enticement for this Court against the pronouncement conceding compensation of intimate freedoms. Mohammad Shafi has likewise come up on bid with a solicitation that the request giving directive ought to be reestablished. This judgment will cover both the cases.

As per Mahomedan regulation, it is totally fundamental that the man or somebody for his sake and the lady or somebody for her benefit ought to consent to the marriage at one gathering, and the understanding ought to be seen by two grown-up witnesses.7 As ladies are in pardah in this piece of the country it is standard to send a connection of the lady to her inside the house joined by two witnesses.8 The connection finds out if she approves him to consent to the marriage for her sake for the dower cash presented by the spouse. He clarifies for her the detail of the dower proposed. At the point when the young lady says ” yes” or means her assent by another technique, the three people emerge. The future spouse and those three people are then positioned before the Mullah. The Mullah finds out if he offers to wed the young lady on installment of the predefined dower. He says “OK”. Then the connection, who had headed inside, lets the Mullah know that he is the specialist of the young lady. The Mullah finds out if he consents to the marriage on installment of the predetermined dower. The connection says “OK”. The observers are available there so that in the event that the Mullah has any uncertainty he ought to address them regarding whether the connection is a properly approved specialist of the young lady. Straightforwardly the two sides have said “OK” the Mullah peruses the sacred texts and the marriage is finished

ISSUES RAISED:

1. CAN A MARRIAGE BE UPHELD VALID BY STATEMENTS OF TWO WITNESSES WITHOUT ANY FURTHER DETAILS?

JUDGEMENT:

It was held that the principal necessity of Muslim marriage is that both the groom and lady of the hour ought to give their assent for the marriage. This assent ought to be given in one gathering. There ought to be two observers who ought to by and by enquire from the young lady regarding whether she will wed. Qazi ought to make sense of marriage for the kid. The assent of the spouse is likewise vital. Both the gatherings ought to hear the words expressed by the other. There should be no ambiguity.in this piece of the case, a marriage is affected to show that the unclear charge that there were two witnesses of the nikah has no worth and that it ought to be demonstrated that the entire technique has been gone through: specifically when the one who read the nikah is positive that nobody was shipped off the young lady to enquire from her whether she was a consenting partaker. It is on the record that the young lady was 17 years old when her marriage was solemnized. Apparently the gatherings didn’t know then that as indicated by Mahomedan regulation a young lady becomes major for the reasons for marriage when she arrives at the time of puberty  which is ventured to be the age of 15 years. I think they were convinced, possibly by mistake, that she was unable to be major as long as 18 years of maturity, just like the overall regulation, and I surmise that the young lady was, consequently, offered by the grandfather and not by and by counsel. For when a young lady is minor it is reasonable in Mahomedan regulation that her dad or granddad or other fatherly relations ought to part with her. The marriage is legitimate and is known as a nikah all the same.

It is fascinating in this association to bring up that such nikah additionally requires two grown-up witnesses. The observers delivered for this situation have just said that they were the observers of the nikah. Who can say for sure if they were not the observers of the offering of the young lady by the granddad. For the reasons given above I hold that no substantial marriage has occurred for this situation, and that the offended party has, accordingly, no option to sue for compensation of intimate freedoms. The allure of Mt. Ghulam Kubra is acknowledged and the suit of Mohammad Shafi is excused with costs all through. The allure of Mohammad Shafi is excused.

CONCLUSION:

This is one of the important cases relating to muslim marriage. The court denied the restitution of conjugal rights to mohd shafi mohd din and injunction which was prayed by him. The court held the marriage as invalid because the consent of appellant was not taken and it was done at the instance of her grandfather. It was also not confirmed that there were really 2 witnesses as essential elements of muslim marriage.

REFERENCES:

1. https://www.legalserviceindia.com/legal/article-7067-case-analysis-mt-ghulam-kubra-bibi-v-s-mohd-shafi-mohd-din.html

2. https://dullbonline.wordpress.com/2017/06/28/mt-ghulam-kubra-bibi-v-mohammad-shafi-mohammad-din-air-1940-pesh-2/

Written by Anwar Naved Sanaullah khan an intern under legal vidhiya.

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