SAJJAD HOSSAIN Vs. RAMESHA BIBI

JUDGEMENT

(1.) The petitioner husband in the trial Court took the plea that there was no marriage at all. The petitioner since his marriage with the opposite party No. 1 (which marriage has been held to have been established factually in evidence by the learned Magistrate, in the impugned order) has married again and has got three children by his second wife.

(2.) The learned Advocate for the petitioner has submitted that since the mother of the opposite party No. 1 was the guardian who consented to the marriage, although the brother of the opposite party No. 1 was present at the time of the marriage was irregular and was therefore not a marriage within the meaning of section 125 of the Code of Criminal Procedure.

(3.) The learned Advocate for the opposite party No. 1 has submitted that even if it was held by this Court that the brother of the girl was in fact present and available at the time of the marriage, the giving of the consent by the mother, only made the marriage irregular, and that until set aside by repudiation by the wife and confirmed by the Court, the marriage would remain a marriage within the meaning of section 125 of the said Code. He has relied upon Chapter XIV, sections 264 and 275 of Mulla's Principles of Mohammedan Law, 17th Edn. The learned Advocate for the petitioner has relied upon section 271 of the same book and also upon a decision of the Allahabad High Court reported in , Ayub lossain Vs. Mussammat khtari, AIR 1963 All 525 . In that decision a Single Judge of the said High Court has held that the marriage of a minor contracted by a remoter guardian when a nearer one was present and available and when the letter did not consent or subsequently ratify, the marriage was void.