RAHIMA BIBI Vs. A.K. SHERFUDDIN

JUDGEMENT

(1.) THE appellant (the second defendant) was at all relevant times a minor Muhammadan girl. The first defendant is her brother and the third defendant her father. Both her father and brother were desirous of getting the girl married; and an opportunity arose of marrying her to a rich man, her guardian -ad -litem in this suit. The parents, however, were unable to raise sufficient funds to conduct the marriage and so approached the plaintiff, the girl's maternal uncle, and told him of their need. Although he did not enter into a contract with the first and third defendants, yet he expressed his willingness to spend such money as was necessary for the marriage. He did not intend to do so gratuitously and as the money was not repaid, he brought this suit impleading the girl, her father and her brother. The trial Court granted him relief under Section 68 of the Contract Act. The lower appellate Court upheld the finding of the trial Court.

(2.) ALTHOUGH the principle enunciated in Section 68 of the Contract Act would not apply to the expenses of marriage of a minor under English law, the principle has been extended in India to cover the marriage expenses of Hindu minors. The learned advocate for the appellant referred to two cases in which the reasons for applying the principle of Section 68 to the expenses of marriage of a Hindu minor girl are said to have been accurately given. In Nandan Prasad v. Ajudhia Prasad, I.L.R.(1910)All. 335 reference was made to the dire spiritual penalties incurred by a father who did not marry his daughter before she attained the age of puberty and therefore to the urgent necessity of getting a girl married before she attained that age. In Tikilal v. Kamalchand and Ors., I.L.R. 1940 Nag. 632 Puranik, J., had to consider whether it was necessary to marry a Hindu male minor. He held that the case of a male minor could not be compared with that of a female minor for the reason given above; and so held that Section 68 could not be applied to the expenses incurred in marrying a male Hindu minor. It is argued on behalf of the appellant that if a person who supplies funds to a male Hindu minor cannot invoke the provisions of Section 68, a fortiori a Muslim who advances monies for the marriage of a Muslim minor girl could not It is argued that a marriage amongst Muslims is of the nature of a contract rather than of a spiritual ceremony, and that therefore all the circumstances which would make it a religious necessity to provide for the marriage of a Hindu minor girl are absent in the case of a Muslim minor girl.

(3.) THE learned author of the " Translation of the Holy Quran " (Muhammad Ali) quotes the text of the Quran " Marry those among you who are single." In a foot -note the learned author says: