MST ZAITUN Vs. SHAIKH KOMMAL

JUDGEMENT

(1.) This appeal arises out of a suit for restitution of conjugal rights. The respondent No. 1 was the plaintiff in the Court of first instance and the defendants were three; the defendant No. 1 Musammat Zaitun was the alleged wife, the defendant No. 2 her paternal uncle and the defendant No. 3 her paternal grandfather. The father of the girl is dead. The plaintiffs case was that he married the girl on the 21 of September 1918, and went away to Calcutta. On coming back, he wanted that his wife should come and live with him but her uncle and grandfather prevented her from coming to him.

(2.) The uncle of the girl did not enter appearance. The defendant No. 1 was described in the plaint as a major and her age was given as 19 years. It was objected to on he behalf that, she was a minor and thereupon, the plaintiff obtained the appointment of her grandfather as her guardian for this suit. Two written statements were filed, one on behalf of the defendant No. 1 and the other on behalf of her grandfather. In both the written statements it was denied that there was any marriage and it was further stated that the plaintiff was in collusion with the girl's uncle who wanted that the girl should marry the plaintiff. The Court of first instance dismissed the suit holding that the marriage had not been proved.

(3.) There was an appeal and it was heard by the learned Subordinate Judge of Jaunpur. It appears that evidence was led on behalf of the plaintiff to show that, the girl also had consented to the marriage, besides evidence showing that the marriage had taken place with the consent of her grandfather. The learned Subordinate Judge remarked that, in most cases, the taking of consent was really a matter of form and this formality had been gone through, whether or not the consent was required under the law. He further found that the girl was of 12 years of age at the time of the marriage and that, the marriage had been performed with the consent of her grandfather. He also found that the story of the girl having consented to the marriage was not established.