HASSAN KUTTI BEARY Vs. JAINABHA

JUDGEMENT

(1.) This is a Second Appeal from the decree of the learned District Judge of South Kanara confirming that of the District Munsif, and the question is has the father of the plaintiff the right to marry her to the defendant without her consent? The parties are Moplahs and Sunni Muhammadans. The case has been argued on the assumption that they belong to the Shafi sect of the Sunnis. Nikka was performed by the father of the plaintiff in the Tadangere Mosque, and the question is - is this an irrevocable marriage? The plaintiff is an adult virgin and it is not proved that she has been consulted or that her consent has been obtained. Another important sect of the Sunnis is the Hanafis. There is no doubt that a woman cannot be married in that sect without her consent. The learned Advocates on each side have been at pains to bring to our notice every possible authority which exists in the text-books. There are practically no cases on the point, and therefore the text-writers must be shortly examined.

(2.) Wilson in his Anglo-Muhammadan Law, p. 68, points out as one of the chief variations of the Shaft creed that women have less freedom of choice in the matter of marriage. He says: Not only female minors, but adult women who are virgins, may be disposed of in marriage by the father or paternal grandfather without their consent and though widows and divorced women cannot be given in marriage against their will, even they re-marry without the intervention of a guardian or wali.

(3.) And in the same book (Ch. 13) dealing with the peculiarities of the Shafi school of Sunni Muhammadans and quoting from the Minhaj, a work dating from the 13 century of the Christian era, he says: Not only female minors, but adult women who are virgins may be disposed of irrevocably in marriage by the father or failing him by the paternal grandfather with or without their consent; but their consent is nevertheless considered desirable.