RAHIMA BIBI Vs. AKSHERFUDDIN

JUDGEMENT

(1.) The appellant (the second defendant) was at all relevant times a minor Muhammadan girl. The first defendant is her brother and the third defendant her father. Both her father and brother were desirous of getting the girl married; and an opportunity arose of marrying her to a rich man, her guardian-ad-litem in this suit. The parents, however, were unable to raise sufficient funds to conduct the marriage and so approached the plaintiff, the girl's maternal uncle, and told him of their need. Although he did not enter into a contract with the first and third defendants, yet he expressed his willingness to spend such money as was necessary for the marriage. He did not intend to do so gratuitously and as the money was not repaid, he brought this suit impleading the girl, her father and her brother. The trial Court granted him relief under Section 68 of the Contract Act. The lower appellate Court upheld the finding of the trial Court.

(2.) Although the principle enunciated in Section 68 of the Contract Act would not apply to the expenses of marriage of a minor under English law, the principle has been extended in India to cover the marriage expenses of Hindu minors. The learned advocate for the appellant referred to two cases in which the reasons for applying the principle of Section 68 to the expenses of marriage of a Hindu minor girl are said to have been accurately given. In Nandan Prasad v. Ajudhia Prasad (1910) I.L.R. 32 All. 335 (F.B.) reference was made to the dire spiritual penalties incurred by a father who did not marry his daughter before she attained the age of puberty and therefore to the urgent necessity of getting a girl married before she attained that age. In Tikilal V/s. Kamalchand and Ors. I.L.R. 1940 Nag. 632 Puranik, J., had to consider whether it was necessary to marry a Hindu male minor. He held that the case of a male minor could not be compared with that of a female minor for the reason given above; and so held that Section 68 could not be applied to the expenses incurred in marrying a male Hindu minor. It is argued on behalf of the appellant that if a person who supplies funds to a male Hindu minor cannot invoke the provisions of Section 68, a fortiori a Muslim who advances monies for the marriage of a Muslim minor girl could not It is argued that a marriage amongst Muslims is of the nature of a contract rather than of a spiritual ceremony, and that therefore all the circumstances which would make it a religious necessity to provide for the marriage of a Hindu minor girl are absent in the case of a Muslim minor girl.

(3.) In the first place, it may be pointed out that although Puranik, J., in the Nagpur case cited above held that advances for the marriage of a Hindu male minor would not be necessary, that is not the view generally held by the High Courts in India. A Bench of the Patna High Court in Pathak Kali Charan Ram V/s. Ram Deni Ram (1917) 2 Pat.L.J. 627 dealt with a claim under Section 68 of the Contract Act connected with the marriage of a Hindu male minor, and it was held that it was necessary. So did this Court in Annamalai V/s. Muthuswami . If these decisions are correct, the argument based on the religious necessity of marrying a Hindu girl before she attains puberty has no application. When we compare the case of a Hindu male minor with that of a Muslim minor girl, there is very little that can be said in support of a view that it is a necessity for the one that could not be said in favour of a contention that it is necessary for the other. It is argued that there is no objection under the Muhammadan law to a woman's contracting a marriage herself, and that therefore no person is iustified in having recourse to a minor's estate for getting a Muslim girl married while a minor. It is suggested that the girl should be allowed to become a major and then to enter into a contract of marriage herself. Such a suggestion seems to me utterly impracticable in Muslim society as we know it; and I do not believe that Muslim law countenances such detachment by the girl's relations, which might well lead to the girl's ruin. It is true that in modern society, educated and advanced Muslims may not, in some cases, marry their daughters while they are stillminors and may allow them to exercise some choice after they attain majority; but such cases are the exception and not the rule. In rural society, and even in ordinary urban society, there can be no doubt that such conduct on the part of the parents as is suggested as proper by the learned Counsel of the appellant would be severely condemned.