MUHAMMAD HAJI KAMMU Vs. ETHIYUMMA

JUDGEMENT

(1.) THERE is not much force in this second appeal, though on the short question involved in the case the courts below have expressed divergent opinions. The appellant brought the suit for a declaration that the respondent was not his legally wedded wife and consequently, the child born in the union was not also his child. The courts below have concurrently found that the appellant (a Mohamedan) married the respondent as his third wife, lived with her for about 7 years and also had a child. That concurrent finding cannot be seriously questioned in second appeal; and I confirm that finding.

(2.) THE trial court has held further that though the appellant married the respondent, it was a fasid or irregular marriage, so that the respondent was not the wife of the appellant and that the child was not his child. THE reason given by the Munsiff for holding that the marriage was irregular is that the respondent, a Shafi virgin girl with no father, grandfather or agnatic male relation alive, could have been given in marriage only by the kazi, which did not take place. On the other hand, the Subordinate judge has held that the marriage was not an irregular marriage, because Dw. 2 acted as wali and gave away the respondent in marriage to the appellant: in the opinion of the Subordinate Judge, the kazi need not necessarily be the wali in such a case. THE lower appellate court has further held that since the respondent attained puberty before the marriage, she was competent to contract a marriage by herself without the intervention of a guardian. THE lower appellate court has again held that even if the respondent was not competent to contract a marriage herself, since consummation took place and she lived as the wife for several years even after she attained majority, she ratified the marriage, which she could have repudiated when she attained majority (strictly, age of discretion which means puberty ). THE question for me to consider in second appeal is whether this view of the Subordinate Judge is not correct.

(3.) COMING to the case in hand, what the evidence discloses is that the respondent authorised Dw. 2 to give her in marriage to the appellant. The evidence also discloses that Dw. 2 is one who used to perform marriages in the locality; and he says that he, in exercise of the authority given to him by the respondent, gave her in marriage to the appellant.