AZIZ BANU Vs. MOHAMMAD IBRAHIM HUSAIN

JUDGEMENT

(1.) This is an appeal by defendant No. 1 arising out of a suit for restitution of conjugal rights. The plaintiff's case was that the defendant No. 1 was married to him on the 25 of September, 1918 on a deffered dower amounting to Rs. 500 plus 2 dinars by her father acting as her guardian, but that she and her relations, the other defendants, were now refusing to send her to the plaintiff. The defence taken by the defendant appellant was that she was not aware of the alleged marriage, that her father had never consented to it, and that she being a Shiah and the plaintiff being a Sunni, no legal valid marriage could have been contracted and, lastly, that on attaining puberty she had repudiated the marriage.

(2.) The trial Court had decreed the claim. It found that the defendant No. 1 was duly married to the plaintiff and her own father had acted as her guardian. It further found that the marriage of a Shiah with a Sunni was not illegal and had also held that the marriage having been performed by the defendant's own father she could not repudiate it, even though as a matter of fact she did so repudiate.

(3.) On appeal the lower Appellate Court has confirmed that decree. It has held that the marriage was in fact performed with the consent of the father and that the difference in the religions of the parties did not make the marriage void. Before it the finding as to her having exercised the option of puberty was not challenged and it held that though, where a father fraudulently^ negligently contracted his minor child in marriage, the marriage was voidable at the option of the minor; nevertheless in this particular case there was no evidence to accuse the father either of negligence or of fraud.