SM JOYGUN NESSA BIBI Vs. MAHAMMAD ALI BISWAS

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff and it arises out of a suit commenced by her for a declaration that her marriage with the defendant was null and void and did not confer on the latter the rights of a husband. In the alternative, she claims that even if the marriage was not void ab initio, the nuptial tie was dissolved by her exercising the right of talak which was given to her by the Kabin-nama and under which on the happening of certain contingencies she could get herself divorced from her husband. There was also a prayer for a permanent injunction restraining the defendant from claiming restitution of conjugal rights. The material allegations upon which the plaintiff came to Court may be shortly stated as follows : The plaintiff says that she was a minor and had not attained the age of puberty at the time when she was made to go through a form of marriage with the defendant on 24 Aswin 1339 B.S. She herself purported to give consent as if she was major although her age at the time did not exceed 10 or 11 years and in the marriage register her age was falsely stated to be 15 years. In the Kabin-nama which was executed at the time of the marriage, the defendant promised inter alia that he would reside all the time in the house of his father-in-law, and in case he stayed elsewhere he would pay a sum of Rs. 7 to the plaintiff for her maintenance. The plaintiff asserts that the defendant is a man of bad character and he left his father-in-law's house in violation of the terms of the Kabin-nama in Falgun 1340 B.S. Under these circumstances she exercised the right of talak which was given to her by this Kabin-nama.

(2.) The defence of the husband was that the plaintiff had attained the age of puberty at the time of marriage and her age was 15 or 16 years at that time. It was said further that the father had given consent to the marriage and that the defendant did not execute any Kabin- nama. It was stated also that the terms of the Kabin-nama were illegal and opposed to public policy and hence were not binding on the parties. The trial Court decreed the suit. He held that the plaintiff had not attained the age of puberty at the time of her marriage and though the father did approve of the marriage and settle the terms of the Kabin-nama, he did not act as a guardian of the marriage and did not express consent on behalf of his daughter who purported to give consent to the marriage as a person sue juris. Under these circumstances the trial Court held that the marriage was null and void and the plaintiff was given a decree to that effect. On the second point the Munsif was of opinion that the Kabin-nama was undoubtedly executed by the defendant but that the terms were opposed to public policy and could not be enforced in a Court of law. Against this decision there was an appeal taken by the defendant to the lower Appellate Court.

(3.) The Subordinate Judge who heard the appeal upheld the finding of the trial Judge on the second point, but on the first point he reversed the decision of the Munsif and dismissed the plaintiff's suit. The Subordinate Judge was of opinion that the plaintiff being above the age of seven years had attained the age of discretion, though not the age of puberty, under Mahomedan law. She could, there-fore, contract a marriage which should be operative if the father or her legal guardian had consented to it. The Court found that the father had consented to the marriage even though he did not act as a guardian of the marriage for fear of being prosecuted under the Child Marriage Restraint Act. The marriage accordingly was held to be valid and the plaintiff's suit was dismissed. It is against this decision that the present second appeal has been preferred, and Mr. Abul Hussain, who appears for the appellant, has assailed the propriety of the lower Court's decision on the point that the lower Appellate Court clearly misappreciated the law in coining to this finding on the legality of the marriage. The marriage, according to Mahomedan law, is a civil contract, the object of which is to legalise sexual intercourse and the procreation of children. To quote the language of Baillie: The pillars of marriage as of other contracts are eejab-o-kubool or declaration and acceptance. The first speech from whichever side it might proceed is the declaration and the other the acceptance. (Baillie's Digest of Mahomedan Law, Ch. 1, p. 4.)