KUMMALI ABUBUKKER Vs. VENGATT MARAKKAR

JUDGEMENT

(1.) The appellants are defendants 1 to 3 and the legal representatives of the fifth defendant. The suit is for declaration that the marriage conducted on 25-8-1960 between the first and second defendants is invalid. Second defendant is third defendant's daughter. Fifth and sixth defendants are brothers. Third defendant is fifth defendant's daughter. Plaintiff was her husband. After second defendant's birth plaintiff ceased to maintain the third defendant. Then she filed a suit against him for dissolution of marriage, After that plaintiff in his turn in the same year instituted a suit against her for restitution of conjugal right. In the meanwhile he contracted another marriage. He has 4 children through that alliance. After trial while the suit for restitution of conjugal right was dismissed the other suit for dissolution of marriage was allowed. The appeal filed from the decree refusing restitution of conjugal right was dismissed. It was thereafter that the present suit has been filed. By that time the second defendant had become pregnant. Both the courts below declared the marriage to be invalid for the sole reason that the plaintiff had not given his consent to the marriage between the first and second defendants.

(2.) The parties are Shafts. The lower appellate court relied upon two decisions for coming to the conclusion that father's consent was essential for the validity of the marriage. They were Hasan Kutti v. Jainabha AIR 1928 Mad. 1285 and Muhammed Ibrahim v. Gulam Ahmed 1 Bombay High Court Reports 236, decisions' of the Madras and Bombay High Courts. Of them Hasan Kutti v. Jainabha AIR 1928 Madras 1285 was a suit by wife against husband for declaration that the marriage was invalid on the ground that she had not given her consent for the same. The marriage was declared invalid. That was because among Muslims marriage was a contract and if one of the parties had not given consent it could not be a valid marriage. The question as to whether father's consent was necessary to render the marriage valid did not arise for consideration there. In Muhammed Ibrahim v. Gulam Ahmed 1 Bombay High Court Reports 236 the suit was by husband for damages on the ground that the defendants were keeping away the wife and not allowing her to reside with him. Their marriage took place after the wife had come over from the Shafi to the Hanafi sect. According to the Hanafis a girl who arrives at puberty without having been given in marriage by her father is legally emancipated from guardianship and can select a husband without reference to the father's wishes. As the wife in that case had become a Hanafite before marriage it was unnecessary to consider what was the position according to the Shafites. There is an observation in the judgment there that according to the Shafi school a virgin before or after puberty cannot give herself in marriage without the consent of her father. No authority is cited there in support of that view.

(3.) Unlike the above two decisions the question as to whether father's consent was essential for the validity of a marriage among Shafis specifically arose for consideration in Kammu v. Ethiyumma 1967 KLT 913 , a decision of this Court. After citing relevant portions in Tyabji's book on Muhammadan Law, Raghavan, J. held: