MT. KHATJI Vs. REHMAN WANI

JUDGEMENT

(1.) This is civil second appeal and arises out of a suit instituted by the plaintiff in the Court of Munsiff Anantnag for the cancellation of her marriage with the defendant. The plaintiff, Mt. Khatji, alleged that during her minority she had been contracted in marriage by unauthorized persons and that her marriage was void and may be cancelled. The suit was resisted by Rehman Wani defendant on the ground that the plaintiff had been married to him by her father and the marriage was valid. The trial Court held that the plaintiff was a minor at the time of marriage. He further found that she was not contracted in marriage by her father who was alive at the time of the alleged marriage and, therefore, the marriage was not binding upon her. The plaintiff's suit was decreed. On appeal the learned Senior Subordinate Judge, Srinagar found that the plaintiff's marriage with the defendant was performed with the consent of the plaintiff's father, and, therefore, the marriage could not be repudiated by the plaintiff on her attaining puberty. The plaintiff's suit was accordingly dismissed and she has come up in further appeal to this Court.

(2.) The counsel for the appellant has argued that the plaintiff's marriage with the defendant was void ab initio in asmuch as the plaintiff contracted herself in marriage with the defendant as a sui juris through a vakil and as she was a minor her marriage was void. It is further argued that even if the father has approved of the marriage, it will not make the marriage valid and the plaintiff minor has the option to avoid the marriage on attaining puberty. In support of this contention reliance is placed upon a ruling of the Calcutta High Court reported as Joygun Nessa Bibi Vs. Mahomed Ali Biswas, AIR 1938 Calcutta 71 . In this case it has been held that when a Muhammadan girl who has not attained puberty but has attained the years of understanding, contracts a marriage herself, that is to say acting herself and not through a guardian, but with the approval of her father, the marriage is not a nullity, but it is subject to the exercise of the option of puberty. The facts of this case are somewhat different from the case which we are dealing with. In Calcutta case the father was not present at the time of the marriage. He did not act as a guardian of the minor for fear of being prosecuted under the Child Marriage Restraint Act and the girl who was a minor contracted the marriage herself and the father approved of this marriage and settled the terms of Kabinnama. It was held that when the girl who had attained the age of understanding contracted the marriage herself the marriage was not void but the girl could exercise her option of puberty if she so desired. In the present case the father was present at the time of marriage and had given his consent to the marriage of his daughter with the defendant.

(3.) It has been further argued that the consent of the father was not sufficient to validate the marriage. The father as a guardian should have contracted the plaintiff in marriage and then the marriage would have been binding on the plaintiff minor. It is true that in Muhammadan law a boy or a girl who has not attained puberty is not competent to enter into a contract of marriage but if the girl has attained the age of discretion and enters into a contract of marriage through a guardian other than the son, father, or agnatic grandfather she can exercise her option of ratifying the marriage or repudiating the marriage on attaining puberty; but if the father contracted the plaintiff in marriage then her option of puberty is lost and the marriage is binding on her. On this point Mr. Ameer Ali in his work on Muhammadan law reproduces this passage from Fatwai-Alam-Giri which has been also quoted in its entirety by Baillie in his Digest. The quotation runs thus :