Ghulam Kubra Bibi v Mohammad Shafi (Peshawar, 1940) — a nikah must be proved, witnesses and all

Because nikah needs no ceremony and no writing, the whole question in a disputed marriage is proof. Ghulam Kubra shows the court insisting on each element of the contract — and refusing to accept a bare assertion that "there were two witnesses". It is also the case that states the presumption of puberty at fifteen for the purposes of marriage.

Mohammad Shafi sued Mt. Ghulam Kubra for restitution of conjugal rights and asked for an injunction against her parents. Her defence was that she had never been married to him. The Mullah who was said to have read the nikah deposed that he read it at the instance of the girl's grandfather, and "categorically denied that anyone was sent to the girl to enquire from her whether she agreed to the marriage". One witness "vaguely deposed that there were two witnesses of the nikah" without naming them; two men said they were the witnesses but gave no detail of what they witnessed, and each turned out to be connected with the plaintiff. The trial court and the District Judge held the marriage proved and decreed restitution; the wife appealed.

Whether a valid nikah had been proved — in particular, whether the girl's consent had been taken and the offer and acceptance witnessed as Muslim law requires.

Mir Ahmad J. set out the law: "it is absolutely necessary that the man or someone on his behalf and the woman or someone on her behalf should agree to the marriage at one meeting, and the agreement should be witnessed by two adult witnesses." He described the local practice by which a relation, accompanied by two witnesses, is sent to the bride in pardah to obtain her authority for the dower offered, and then acts as her agent before the Mullah — and held that, against that practice, "the vague allegation that there were two witnesses of the nikah has no value"; the whole procedure must be proved, especially when the Mullah himself said no one was sent to ask the girl. The girl was seventeen; the parties had evidently thought her a minor until eighteen, but under Muslim law a girl "becomes major for the purposes of marriage when she reaches the age of puberty, which is presumed to be the age of 15 years", so her own consent was required. Even a nikah of a minor given away by her father or grandfather "also requires two adult witnesses", and the witnesses here may have witnessed no more than the giving away. The judge held "that no valid marriage has taken place in this case", allowed the wife's appeal, and dismissed the husband's suit with costs.

1. A nikah is proved only by proving its elements: proposal and acceptance at one meeting, by the parties or their authorised agents, in the presence of two adult witnesses.
2. An adult bride's consent must be shown to have been obtained; puberty, and so majority for marriage, is presumed at fifteen.
3. A general statement that witnesses were present, unsupported by what they saw and heard, does not prove the marriage.