SIBT AHMAD Vs. AMINA KHATOON

JUDGEMENT

(1.) The suit which has given rise to this appeal was brought by a Muhammadan lady, Bibi Amina Khatun, in order to obtain a declaration that a ceremony of nikah which is said to have taken place on 22 September, 1917, between her and defendant 1, Sibt Ahmad, was not lawful and binding and that the relation of husband and wife did not exist between defendant 1 and herself. Defendant 1, Sibt Ahmad, was impleaded as a minor under the guardianship of his grandfather, Wazir Ahmad.

(2.) During the hearing of the appeal some question was raised as to the age of this defendant who is the appellant before us. It was suggested that since the decision of the case in the Court below Sibt Ahmad had become of full age. We thought it proper in these circumstances to send for Sibt Ahmad and to examine him upon oath. He was not examined in the Court below. Sibt Ahmad has not appeared before us and has made a statement which we accept, namely, that he was born in the mon May, 1910. This information, he says, he has got from his mother. We hold, therefore, that Sibt Ahmad, not having yet attained the age of 18 years, is still a minor and is properly represented in these proceedings by his legal guardian, his grandfather, Wazir Ahmad. Defendant 2 impleaded in the suit was Maulvi Qasim Hasan, who is the father of the plaintiff. He was a pro-forma defendant.

(3.) In substance the defence to the suit was that the ceremony of nikah which had taken place between the plaintiff and defendant 1 was a Valid ceremony, and that the plaintiff was not entitled to the declaration sought. We may notice here that a plea of limitation was raised in the Court below and decided in favour of the plaintiff. This plea has now been abandoned and it is not denied that the suit for declaration was brought within time. The Subordinate Judge gave a decree in favour of the plaintiff and now in appeal we are asked to hold that the judgment and decree of the Court below are wrong, to find that there was a valid and binding ceremony of marriage between the plaintiff and defendant 1 and that, therefore, the suit ought to be dismissed.