SADAR ALI KARIKAR Vs. SREEMATI ABEDA BIBI

JUDGEMENT

(1.) This is an appeal by the husband in a suit for restitution of conjugal rights which has been dismissed by both the Courts below. The facts found by the Courts below are that the mother of the girl, who is a defendant in the case gave her in marriage to the plaintiff in 1319 B.S., but the defendant exercised her "option of puberty" given to her under the Sunni Mahomedan law, by which the parties are governed, in 1330 soon after she had attained puberty, by marrying defendant 5. In this view the plaintiff's suit for restitution has been dismissed inasmuch as the alleged marriage between the plaintiff and defendant 1 does not any longer exist. The learned vakil who appears for the appellant has streneously argued that the marriage between the plaintiff and the defendant having been found to have been contracted as a matter of fact, there should be a judicial decree confirming the repudiation of such marriage. The learned vakil's contention is met completely by the decision in Badal Aurat v. Queen-Empress (1892) 19 Cal. 79. If that decision is correct there can be no question that the decree of, the lower appellate Court is also correct.

(2.) Before entering into a discussion of the question it is necessary to point out that it was not proved before the Courts below or raised in the pleading as to whether the mother was the guardian of the girl for the purpose of the marriage at the date when the marriage took place. Under the Mahomedan law as affects the Sunnis, the guardianship in marriage originally vests in the father, and, failing him, on the father's father, how high so-ever. Failing these, the right to contract the minor in marriage provisionally, i.e., subject to the option of repudiation devolves upon the brother and agnate relations of the minor in the same order as they stand under the law of inheritance. Failing these it devolves upon the mother and the maternal kindred; and failing these upon the Sultan or the ruler and then on the Judge or a person appointed by him. According to a saying of the Prophet which is the foundation of the rule of guardianship in marriage the nearer guardian excludes the more remote; that is, in the presence of the nearer guardian the more remote guardian has no right to give the minor in a valid marriage. It will thus be seen that when marriage is effected through the guardianship of the father or grandfather the minor has no right to avoid such marriage, except in very special circumstances, but if it is contracted by any other person the minor has the right of repudiation which is technically called "the option of puberty." In order that the minor may be entitled to exercise the "option of puberty" it is necessary that there should be a marriage which is binding on him or her unless such option is exercised; and for that purpose the marriage must be valid ab origine and brought about by a person other than the father, etc., who stands for the time being in the position of a guardian in marriage of the minor. In the present ease it ought to have been inquired as to whether there was no paternal relation who could be the guardian of the minor at the time when the marriage is said to have taken place or whether the mother had the right to give her daughter in a valid marriage. This point seems to have been lost sight of in most of the cases that come before us and also in some of the reported cases.

(3.) As to the question whether there should be a judicial decree confirming the repudiation before a suit for restitution of conjugal rights or relating to the marriage is brought no authority has been placed before us in support of this proposition. In Badal Aural's case Ameer Ali, J., whose opinion it is needless to say carries a very great weight on a question of Mahomedan law, is of opinion that the very fact that the Court declares in a suit or in a case which comes before it that there was repudiation is enough to satisfy the requirement of the Mahomedan law about a judicial decree confirming a repudiation. It is undoubtedly true that there is need for obtaining a judicial decree. The law insists that the repudiation should be made soon after attainment of puberty and it will not be effective unless a judicial decree is obtained confirming it; and for this there are many passages in the textbooks, but there is no authority for saying that the judicial decree must be obtained in a proceeding apart from that in which the question of the validity of the marriage is raised.