1. The object of this suit is to test the validity of a Parsi infant marriage. The parties went through the ceremony of marriage in 1868, in the presence of their parents and according to the rites of their religion, when the plaintiff was seven years old and the defendant was six. Nineteen years afterwards the plaintiff files this suit, and prays for a declaration that the marriage was null, and never created the status of husband and wife. The defendant, on the other hand, submits that the marriage was valid, the ceremony binding, and that she is the plaintiff's lawful wife. The issues raised were (1) whether this Court had jurisdiction to try the suit; (2) whether the plaintiff's father gave his consent either at the time of the marriage or subsequently; (3) whether the plaintiff repudiated the marriage on his reaching the age of puberty and subsequently; (4) and generally whether the marriage was valid.
2. The facts of the case are as follows: The plaintiff, when an infant, was adopted by his uncle, Hormasji, and was brought up in Hormasji's house. His uncle's second wife, Awabai, was a near relation--an aunt--of Meherbai the defendant in the present suit. A marriage was arranged between the two children by Hormasji. The plaintiff's natural father was invited, and came to the ceremony, but only as a guest; and Hormasji, the adoptive father, conducted the whole proceedings. The real father, however, received a present at the time, and raised no objection to the marriage. The infant bride and bridegroom from this date both lived in Hormasji's house not, of course, as man and wife, but seeing each other, playing together, leading the life of constant intercourse as children in the same house naturally do, down to 1872, when the plaintiff went to St. Xavier's College. He remained there till 1877, when he passed the Matriculation Examination. He still resided with his uncle; and his infant wife, Meherbai, also continued to live there. She went to school at this time. She said he assisted her in her study, and used to take her to school before he went to the college. In 1877, when the parties were sixteen and fifteen years old respectively, he next joined the College of Science at Poona, and on the occasion of his returning to Bombay for his first vacation, the uncle tried for the first time to bring them together as man and wife. Plaintiff, however, refused altogether to occupy one room with Meherbai, as his uncle proposed. There is no evidence, however, that he then tried in any way to repudiate the marriage altogether. The two continued to live, as before, apart, but in the same house. In 1880 the plaintiff passed as an engineer. In 1883 he had a bad illness, which necessitated his being in seclusion for some months. But he recovered, returned to his old home, and in 1884 he obtained engineering employment from the Bombay Municipality. All this time he continued to live in his uncle's house and Meherbai lived there also, but they never lived together as man and wife. In 1887 the uncle died, and plaintiff went to live with his natural father, Nassarvanji. An attempt was made once more to bring the plaintiff and Meherbai together. Meherbai in furtherance of this object went to live with Nassarvanji, But plaintiff left and refused to return as' long as Meherbai remained there. She then went to her mother's house. Finally, on a threat that Meherbai would obtain an order on him for maintenauce, he filed this suit.
3. I will deal with the minor issue of the father's consent first. No doubt, it is required by Section 3 of the Parsi marriage Act and it was not formally given at the time of the marriage. But I the uncle acting, as lather consented, and the natural father not only by his presence gave a tacit consent, but ever afterwards he has approved of the marriage, and treated it as valid. I think this objection cannot be sustained.
4. The next question, that of the jurisdiction of this Court over such a case, is one of considerable difficulty. No doubt the Parsis in India are, as a general rule, subject to English law. They brought no code of laws from Persia, and all ordinary disputes between Parsis are now regulated in conformity with the laws of England. But in Parsi matrimonial matters a special Court has been created. The present case admittedly does not come within the jurisdiction of this special Court, and it is therefore argued, that no Court whatever is competent to try such a suit. The special Court undoubtedly has no jurisdiction. It has only power to grant a decree of nullity of marriage; it has no power to deal with a case where there never was a marriage at all, As regards the total absence of any form, Sir Erskine Perry in 1843, as Judge of the late Supreme Court, laid down the broad principle that Parsis were subject to the ecclesiastical jurisdiction of the Court on disputes arising out of the marriage contract--Perozeboye v. Ardaseer Cursetjee Perry's Or. Ca. p. 57. But the Privy Council reversed this decision 6 Moo. I.A. 348 and held that the ecclesiastical jurisdiction extended only to Christians in questions of the restitution of conjugal rights. Their Lordships, however, at the same time intimated that the Supreme Court on its civil side might possibly administer some kind of remedy for the violation of the duties and obligations arising cut of the matrimonial union between Parsis. The High Court inherited all the powers of the Supreme Court, and was also specially empowered in the exercise of its ordinary original civil jurisdiction to 'try suits of every description.' Would not this wide jurisdiction cover such cases as are not within the jurisdiction of the special Parsi Court? It must be remembered that if this power is not wide enough to cover the present cases, the parties would be practically without any remedy. They would be relegated to their Panchayet forum, which has long been without authority, even as a domestic tribunal, and now hardly exists at all. This was not the intention of Government when the High Courts were established. Sir C. Wood in his letter of May 14th, 1862, accompanying the Letters Patent constituting the High Court of Bombay, refers to the Privy Council's decision I have cited, and says the object of the charter was to do away with all such limitations and to invest the High Court with power to determine cases of every description and to apply a remedy to every wrong. I think therefore, the words 'to try suits of every description' comprise matrimonial suits, subject, of course to the provisions of the Parsi Marriage Act, which assigns to a special tribunal most of the questions incident to the matrimonial contract, but not the questions involved in the present suit.
5. Assuming, then, that this Court has jurisdiction, the next question is, what marriage law must be applied? The requisites to the validity of a Parsi marriage are given in Section 3 of the Parsi Marriage Act. They are (1) a religious ceremony called ashirvad, (2) in the presence of two witnesses, and (3) if either party is under twenty-one, the consent of the father or guardian is required. The only reference to infant marriages is in Section 37, which says that no suit can be brought to enforce a marriage if at the date of the suit the husband is not over sixteen, or the wife not over fourteen. The validity of such a marriage which has enured after those ages are reached, is not decided. I must then look to English law, which generally is, as I have already said, applicable to Parsis in Bombay. If the English common law of marriage, pure and simple, were to be applied, any infant marriage, even if validly celebrated, can be repudiated by either party when they come to years of discretion. 'Consensus non concubitus facet mairimonium,' but a woman cannot consent before twelve, nor a man before fourteen. It is an inchoate and imperfect marriage, from which either of the parties, at the age of consent may disagree. But if the husband and wife at the age of consent ever agree to the marriage, they cannot afterwards disagree. (See Comyn's Digest, Vol. II, p. 73; and Coke on Lyttleton, 33 A.) To this statement of the English law must be added the decision of the House of Lords in The Queen v. Millis 10 Cl. and Fin. 534. 'By the common law of England it was essential to the constitution of a full and complete marriage that there must be some religious ceremony besides the civil contract.' The Zoroastrian system would seem not to have contemplated marriage in infancy. The marriage ceremony of ashirvad includes a prayer (the nikah), or exhortation to the parties, which would be senseless if it were not addressed to persons capable of matrimonial union in every sense. The Zendavesta contains many passages which exclude the idea of infant marriage. For instance: 'Let thorn betroth a sister or a daughter to a pure man after her fifteenth year.' Again, the maiden who encounters the bridegroom is to be 'marriageable.' And certain maidens are required to be young women fit for marriage, different from maidens not yet sought by men. All this agrees with the opinion sent by the wise men of Persia, who two hundred years ago told their brethren in India that the age of marriage was fourteen for boys and ten for girls. But custom seems to have wandered from the pure doctrine of the Zendavesta; and the law, whether English or Persian, can only be applied subject to any well-established usage. When the Parsis settled in Western India, eleven hundred and sixty years ago, they probably brought with them a system, both of law and custom, from Persia. But it was all unwritten and gradually fell into desuetude, and this mere handful of Persian strangers gradually and naturally adopted much of the law and usage that obtained in the Hindu community m whose midst they were forced to dwell. There is no doubt they adopted, amongst other things, the injurious practice of infant marriage. From the high level of education and civilization which the Parsi community of the present day has reached, these marriages are now discountenanced, bus I have little doubt they were until lately common, nor can it be doubted cases still occur. The statistics given to me prove the existence of such marriages, though they also prove a strong current of opinion and practice which will gradually restore the older and healthier system of adult marriage. But infant marriage still is practised and recognized. I do not rely only on the instances of which evidence was given in this case. Such instances were hardly enough to prove a well-established usage. But much more convincing testimony is to be found in the statistics given me, and again in the proceedings put in, which went on before the Parsi Law Commission, a Government Commission of 2862 which produced the Parsi Marriage Act. For instance, the Parsi Law Association in 1862, sent to the Commission eighty-five delegates, all of them leading Parsis, to ask that the Panchayet should have power to disolve marrages contracted before puberty; and this was asked, said the delegates, in their petition 'inconsequence of the custom of marriages taking place during infancy amongst the Parsi community.' This was refused the Commission declined to insert either this provision or any explicit legislative sanction or prohibition of infant marriages. In short, the Commission acted as Government generally acts on matters of custom which appear to be injurious, but yet are admitted by the particular community.
6. It is difficult to conceive stronger proof of the prevalence of the usage than this petition which emanated from the great majority of the Parsi community. They have, no doubt, been very common until recently, and, as a rule--almost a universal rule, the present case being the only known exception--these infant marriages have been carried out by the parties. The question has never been before raised, whether either of the parties could legally repudiate the contract on reaching the age of discretion. If the English law is applicable, they could be then repudiated. But English law is only applicable subject to well-established usage; and I very much doubt whether these marriages, which are an established fact in the Parsi community, are of such an inchoate probational character as to allow of repudiation. The Parsis have, no doubt, insensibly adopted them from the Hindus around them, and such marriages amongst Hindus are certainly not probational. But, as a matter of fact, I do not think on the evidence, the plaintiff did repudiate this marriage until long after the time he could have done so under any system of law which admits of such repudiation. On the contrary, his conduct was rather that of acquiescence than of repudiation. Consummation of marriage is the best proof of consent to such a marriage, but it is not the only proof. Consent may be inferred from conduct, though there has been no consummation. No doubt the plaintiff grumbled about the marriage. But he never denied its validity. Though he refused to treat Meherbai as his wife, he never repudiated the marriage till long after he had arrived at an age when he could have done so. When his adoptive father died, the plaintiff, then twenty-five years old, gave her the keys of the house and some money. It was not till he was twenty-six years old that he actually, in terms, repudiated All his family, all her family, all the family of his adoptive father, treated the marriage as valid. The failure of her father to sign at the marriage is not fatal, as the father showed his consent in other ways. The plaintiff's letters alone put him out of Court. Thus in Exhibit I, written at the age of nineteen to his uncle, he speaks of the defendent as 'her whom the law could never disunite.' Such a sentence is wholly inconsistent with any actual repudiation, or even with any idea that repudiation was possible. Thus, at the age of nineteen there was no repudiation. Again, take Exhibit B, written from his adoptive father to the plaintiff in 1885, which appeals to plaintiff at the age of twenty-four 'not to lose your youth in vain,' nor to cause your 'wife's youth also to be lost in vain.' This, again, is quite incompatible with any repudiation having taken place. It only refers to the disinclination to live as married people should live, and asks him to give proper conjugal rights to his wife. Even at this date, 1885, the plaintiff replies complaining of the sinful laws which do not declare such marriages null. There was then no repudiation by writing up to 1885. There was none by word of month proved. Meherbai, who gave her evidence very well, denied anything of the kind. The plaintiff's conduct was not equivalent to repudiation. His writings up to 1887, admit the marriage. Consequently, even supposing repudiation of such a marriage legally possible, I do not think there was in this case a repudiation in reasonable time, and the plaintiff has lost any fight he possessed by his delay. This Court cannot, therefore, grant the declaration prayed. The suit must be dismissed with costs.