ABDUL KARIM Vs. AMINABAI

JUDGEMENT

(1.) The plaintiff prays for a declaration that defendant No, 1 is his lawfully married wife, and that the marriage between them is subsisting ; for a decree against her to live with him as his wife, and to allow him all his conjugal rights and for an injunction restraining her from marrying defendant No. 3. The plaint also contains the allegation that defendants Nos. 2 and 3 entered into a conspiracy and enticed away defendant No. 1. Defendant No. 2 is the mother of defendant No. 1. Defendant No. 3 is a stranger.

(2.) Defendants Nos. 1 and 2 do not appear. Ordinarily slight evidence of the allegations in the plaint would be accepted for giving the plaintiff a decree against the absent defendants. But the nature of this suit makes me cautious. It is by a husband who claims that he was married to a girl nine years old. The girl was thus not competent to give her consent to the marriage. The consent alleged to be given on her behalf is not by her father but by her paternal uncle. To the plaint is annexed a copy of a letter (the original of which is filed in Court) dated November 30, 1927, in which the alleged wife informs the plaintiff that on August 9, 1927, when she attained puberty she, in accordance with Muhammadan law, repudiated her marriage with the plaintiff in the presence of some of the members of the jama at, and since then had ceased to be his wife. She adds that a fatwa was issued by the Chief Qazi of Bombay to this effect and was circulated among the members of the jama at.

(3.) It was argued that there was no cause of action disclosed in the plaint so far as defendant No. 3 is concerned. Though no authority was cited to me from the original texts, and I am not aware of any, recognizing suits against strangers for enticing away a wife, such suits clearly lie in our Courts : Muhammad Ibrahim v. Gulam Ahmed (1864) 1 B.H.C.R. 236, 250.