SANI GUL Versus CIVIL JUDGE-III, SWAT

ORDER

MRS. KHALIDA RACHID, J.‑‑‑ The Nikah of Sani Gul petitioner aged 15 years and Mst. Nazakat respondent aged 13 years cousins inter se, both residents of village Kuz Banda, Teshil Kabal, District Swat was solemanized some 12 years ago through their guardians in lieu of five Tolas gold. The Rukhsati was scheduled to take place after thepuberty/maturity of respondent wife.

2. Before the Rukhsati Mst. Nazakat respondent through her Wall/brother Amir Rawan filed a suit in the Court of Aala Illa~a Qazi/Judge, Family Court, Swat for the dissolution of Nikah on the plea of prohibition of marriage on ground of fosterage. It was alleged that petitioner has sucked the breast milk of Mst. Zaibun Nisa, his paternal‑aunt, mother of respondent wife, during his infancy alongwith Mst. Shakeela, elder sister of Mst. Nazakat, therefore, such marriage being against the norms of Islam was liable to be dissolved. It was also alleged that not only Sani Gul, but his other sisters and brothers, namely, ~ Rahmat Gul, Bakhat Zamin Gul, Mst. Sakina, Mst. Khalida and Mst. Shamim had also been breast‑fed by Mst.

Zaibun Nisa, as mother of petitioner Sani Gul was unable to produce enough milk to nurse her children. When the parents of Mst. Nazakat gained knowledge of such prohibition/bar, they approached the parents of Sani Gul for breaking up the nuptial tie, which was forcibly resisted and was not agreed upon. Thus, obliging Mst. Nazakat to file her suit for dissolution of marriage before the Judge, Family Court, Swat. The petitioner vehemently resisted the suit. The parties were allowed to lead evidence on the issues emanated from the pleadings of the parties. .

3. To prove the claim of the relationship by fosterage, Amir Rehman, brother Wali of Mst. Nazakat, beside himself, also produced Mst. Zaibun Nisa, mother of Mst. Nazakat, whereas petitioner produced three witnesses, Khaista Gul, father of Sani Gul petitioner, Nowsherwan and Aziz Khan. The learned trial Court, after assessing and evaluating the evidence decreed the suit of the respondent wife. Aggrieved Sani Gul petitioner, invoking Constitutional jurisdiction approached this Court through the instant petition.

4. It is not disputed that the Nikah of foster brother and sister is prohibited in Islam and Shariah, such marriage, according to Mohammadan Law is void which is perpetual and absolute. It does not create any civil rights or obligations between the partiess and the offsprings of such void marriage are illegitimate.

5. The stance of the learned counsel for the petitioner is that the marriage between such spouses could only be proved by producing one or two males or two females witnesses and that in the instant case such evidence is lacking, therefore, the decree granted by the trial Court is illegal, void and without jurisdiction.

6. We are not persuaded to agree with the contention of the learned counsel for the petitioner. In Shariah the evidence of the woman, who has nurtured both the spouses is valid and enough to prove the relationship by E reason of fosterage. There are many instances available, where Prophet Muhammad (p.b.u.h.) accepted the evidence of foster mother. It is obvious that otherwise the consequnces would have been deterimental, since offsprings of such a void vow/marriage will be illegitimate. To avoid such a happening, that is a bigger sin, Hazrat Muhammad (p.b.u.h.), to be on the safe side, always accepted the evidence of a foster mother as a single witness. Islam is a religion of reasoning and logic. Anything that does not carry reasoning is not acceptable in Islam. The marriage between foster brother and sister is forbidden as is evident from Verse 23, Surah Nisa, Section (para.) 4 in the Holy Qur'an, which is reproduced as follows:‑‑ .

" Prohibited to you (for marriage) are .‑‑ Your mothers, daughters, sisters; father's sisters, mother's sisters; brother's daughters, sister's daughters, foster‑mothers (who gave you suck), foster sisters , Your wives' mothers; Your step‑daughters under your guardianship, born of your wives. To whom ye have gone in,‑ No prohibition if ye have not gone in;‑ (Those who have been) Wives of your sons proceeding from your loins; And two sisters in wedlock. At one and the same time, Except for what is past; For Allah is Oft‑Forgiving, Most Merciful;‑

Furthermore, several Ahdith of Hazrat Muhammad (p.b.u.h.) are available on the subject, accepting evidence of a woman, foster mother, on the subject. Out of which Hadith No. 782 of Jamea Tirmizi Sharief Volume No. l page 533 is reproduced as under:‑‑

Such‑like Hadith also finds mention in ~ahih Bukhari Volume No.III at page 80, which is in the following words:‑‑

Another Hadith mentioned at page 915 of Sahih Bukhari Volume No. l also confirms this fact, which is in the following words:‑‑

Likewise the Nikah which is forbidden by relation is also forbidden by fosterage in Islam. In this context Hadith No.779 of Jamea Tirmizi Sharief Volume No. l page 531 is reproduced below:‑‑

In view of the above findings, we dismiss this writ petition inIC limine.

Q.M.H./M.A.K./60/P Petition dismissed.