1. This second appeal arises out of a suit filed by the plaintiff for restitution of conjugal rights against defendant No. 1 whom he alleges to have married on May 30, 1934. The parties belong to the Shafi sect of Sunni Mahomedans, Defendant No. 1 contended that as she was an adult virgin at the date of the marriage, that as the marriage was performed without her consent and against her wishes, the marriage was invalid, and that the plaintiff was not entitled to claim restitution of conjugal rights against her. Both the lower Courts upheld her contention, and the suit was dismissed.
2. It is not disputed in this Court that the parties are Sunni Mahomedans belonging to the Shafi sect, that at the date of the alleged marriage defendant No. 1 had attained puberty, and that the marriage was performed by her father against her wishes and without the consent either of herself or of her mother with whom she was then living in her maternal uncle's house.
3. The only issue argued is whether such a marriage is valid according to the law by which Shafi Mahomedans are governed. The only pertinent case to which my attention has been drawn is that of Hassan Kutti Beary v. Jainabha I.L.R. (1928) Mad. 39. In that case Odgers and Madhavan Nair JJ, have discussed the views of the ancient text-writers as well as the views of the modern jurists and have come to the conclusion that the consent of an adult virgin is essential for the validity of her marriage among the Shafi sect of Sunnis. It is true that according to the ancient texts, which have been cited in that case, not only female minors, but also adult women who are virgins, may be disposed of in marriage by the father or paternal grandfather without their consent, and the following is quoted at p. 41 from the Minhaj:
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.
4. Later on, the same text says (p. 42):
It is, however, always commendable to consult her as to her future husband, and her formal consent to the marriage is necessary if she has already lost her virginity.
5. As observed by Jenkins C.J. in Mahomed V. Zahiroodin (1902) 5 Bom. L.R. 8 the Shafi school itself possesses a substantive system, as one inter partes, and is not a subordinate offshoot from co-existing schools, the special characteristic of the Shaft School being adherence to precedent, a conservative tendency that would resist modification by fluctuating customs. Hence, if there is a clear dictum in any ancient text that the consent of an adult virgin is not required for the validity of her marriage, then the views of modern writers ought not to be given effect to. But, after considering the views of all the ancient texts, Ameer Ali has thus recapitulated the law at p. 303 of his Mahomedan Law, 5th edn., Vol. II :
Under the Maliki and Shafei Law, the marriage of an adult girl is not valid unless her consent is obtained to it, but such consent must be given through a legally authorised wall, who would act as her representative. Under the Hanafi and Shiah Law, the woman can consent to her own marriage either with or without a wali.
6. This is the only distinction between the necessity of consent as required by the Maliki and Shafei law, and that as required by the Hanafi and Shiah law. The learned Judges of the Madras High Court have accepted this opinion and held that even among the Shafis, the marriage of an adult virgin is invalid if it is performed without her consent. In this case not only did defendant No. 1 not give her consent, but she had actually approached the police to have the marriage prevented, and the marriage was ultimately forced upon her against her wishes. Under the Mahomedan Law marriage is a contract, and the marriage thus celebrated under compulsion cannot be regarded as valid. I, therefore, agree with the findings of the lower Courts and dismiss the appeal with costs.