MUSAMMAT KASTURI Vs. CHIRANJI LAL

JUDGEMENT

(1.) This is an appeal in a suit brought by the respondent for restitution of conjugal rights. The Courts below have found that the appellant, Musammat Kasturi, was given in marriage to the respondent by her maternal grandfather and maternal uncle against the wishes of the appellants, Mangal, Bal Makund and Joti, who are the paternal uncle and paternal cousins of the girl and who hoped to make a profit out of marrying her to a rich but one-eyed man, named Tulshi. It has been found also that the marriage was not brought about either by force or by fraud.

(2.) The question for decision is whether the marriage is valid.. The authorities are conflicting. According to Yajnavalkya (I-63-64), the father, paternal grandfather, brother, a sakulya or member of the same family, and the mother, in default of the first among these, the next in order if sound in mind, is to give a damsel in marriage. Vishnu says (XXIV-38-39): "The father, the paternal grandfather, the brother, the kinsman, the maternal grandfather, and the mother are the persons by whom a damsel may be given in marriage" Narada says (XII-20-21): "The father himself shall give a damsel in marriage or with his assent the brother, the maternal grandfather and maternal uncle and her agnates and her paternal grand father. In default of all these, the mother." The Mitakshara commentary on the text of Yajnavalkya is silent about the maternal relations (I. VII. 3-6). Most of the modern commentators seem to assume that the text of Yajnavalkya and the Mitakshara commentary upon it should not be treated as exhaustive and that the maternal relations may give a girl in marriage though the father, brother and other maternal relations have a preferential right to do so (See Macnaghten s Hindu Law, Edition of 1874, page 103; Guru Das Banerjee s Hindu Law of Marriage and Stridhan, page 47; Treveylan s Hindu Law, page 43; Ghose s Hindu Law, pages 678-688, and Mayne s Hindu Law, 7th Edition, page 101). Others such, as J.N. Bhattacharjee Chapter XIII and Golap Chandra Shastri, Chapter III, content themselves with noticing the divergence between the authorities.

(3.) It has been established by a long line of decisions going back to 1843, that if a girl is given in marriage by her natural guardian, even without the consent of her legal guardian and the marriage actually takes place, it is irrevocable see Ghazi v. Sukru 19 A. 515; A.W.N. (1897) 139; Venkatacharyula v. Rangacharyulu 14 M. 316; 1 M.L.J. 85; Suryamoni Dassee v. Kalikanta Das 28 C. 37; 5 C.W.N. 195 and Mulchand v. Bhudhia 22 B 812 and we are asked to apply this rule to the present case. But on the findings of the Courts below, it may be doubted whether the persons who gave the girl in marriage were her natural guardians. It appears that her mother died several years ago, that her father died seven or eight months before the marriage now in question and that she and her brother aged 10 lived with their paternal uncle and cousins up to within a month or two before the marriage when they took her to the respondent s house.