SAYAD MOHIUDDIN SAYAD NASIRUDDIN Vs. KHATIJABI

JUDGEMENT

(1.) THIS second appeal arises out of a suit filed by the plaintiff for restitution of conjugal rights against defendant No.1 whom he alleges to have married on May 30, 1934. The parties belong to the Shafi sect of Sunni Mahomedans, Defendant No.1 contended that as she was an adult virgin at the date of the marriage, that as the marriage was performed without her consent and against her wishes, the marriage was invalid, and that the plaintiff was not entitled to claim restitution of conjugal rights against her. Both the lower Courts upheld her contention, and the suit was dismissed.

(2.) IT is not disputed in this Court that the parties are Sunni Mahomedans belonging to the Shafi sect, that at the date of the alleged marriage defendant No.1 had attained puberty, and that the marriage was performed by her father against her wishes and without the consent either of herself or of her mother with whom she was then living in her maternal uncle's house.

(3.) AS observed by Jenkins C. J. in Mahomed V. Zahiroodin (1902) 5 Bom. L. R. 8, the Shafi school itself possesses a substantive system, as one inter partes, and is not a subordinate offshoot from co-existing schools, the special characteristic of the Shaft School being adherence to precedent, a conservative tendency that would resist modification by fluctuating customs. Hence, if there is a clear dictum in any ancient text that the consent of an adult virgin is not required for the validity of her marriage, then the views of modern writers ought not to be given effect to. But, after considering the views of all the ancient texts, Ameer Ali has thus recapitulated the law at p. 303 of his Mahomedan Law, 5th edn. , Vol. II : Under the Maliki and Shafei Law, the marriage of an adult girl is not valid unless her consent is obtained to it, but such consent must be given through a legally authorised wall, who would act as her representative. Under the Hanafi and Shiah Law, the woman can consent to her own marriage either with or without a wali.