Harry Griffin and Chamier, JJ.
1. This is an appeal in a suit brought by the respondent for restitution of conjugal rights The courts below have found that the appellant Musammat Kasturi was given in marriage to the respondent by her maternal grandfather and maternal uncle against the wishes of the appellants, Mangal, Balmakund and Joti, who are paternal uncle and paternal cousins of the girl, and who hoped to make a profit out of marrying her to a rich but one-eyed man named Tulshi. It has been found also that the marriage was not brought about either by force or by fraud.
2. The question for decision is whether the marriage is valid. The authorities are conflicting. According to Yajnavalkya. (1-63-64) the father, paternal grandfather, brother, a Sakulya or member the same family, and the mother, in default of the first among these the next in order, if sound in mind, is to give a damsel in marriage. Vishnu says (XXIV-38-39): 'The father, the paternal grandfather, the brother, the kinsman, the maternal grandfather, and the mother are the persons by whom a damsel may be given in marriage.' Narada says (XII-20-21): 'The father himself shall give a damsel in marriage or with his assent the brother, the maternal grandfather and maternal uncle and her agnates and her paternal grandfather. In default of all these the mother,' The Mitakshara, commentary on the text of Yajnavalkya,. is silent about the maternal relations (I. VII, 3-6). Most of the modern commentators seem to assume that the text of Yajnavalkya and the Mitakshara commentary upon it should not be treated as exhaustive and that the maternal relatives may give a girl in marriage, though the father, brother and other paternal relatives have a preferential right to do so (see Macnaghten's Hindu Law, edition of 1874, page 103; Guru Das Banerjee's Hindu Law of Marriage and Stridhan, page 47; Trevelyan's Hindu Law, page 43; Ghose's Hindu Law, pages 678-688, and Mayne's Hindu Law, 7th edition, page 101). Others, such as J.N. Bhattacharjee, Chapter XIII, and Golap Chandra Shastri, Chapter III, content themselves with noticing the divergence between the authorities. It has been established by a long line of decisions, going back to 1843 that if a girl is given in marriage by her natural guardian even without the consent of her legal guardian and the marriage actually takes place, it is irrevocable [see Ghazi v. Sukru (1879) I.L.R., 19 All., 515, Venkatacharyulu v. Rangacharyulu (1890) I.L.R., 14 Mad., 316, Surjyamoni Dasi v. Kali Kanta Das (1900) I.L.R., 28 Calc., 37 and Mulchand v. Bhudhia (1897) I.L.R., 22 Bom., 812] and we are asked to apply this rule to the present case. But on the findings of the courts below it may be doubted whether the persons who gave the girl in marriage were her natural guardians. It appears that her mother died several years ago; that her father died seven or eight months before the marriage now in question, and that she and her brother aged ten lived with their paternal uncle and cousins up to within a month or two before the marriage when they took her to the respondent's house.
3. We have not been referred to any case at all resembling the present case. But on the other hand, there is no case, of which we are aware in which the marriage of a Hindu girl effected without force and fraud by her relations has, after it has actually taken place, been declared to be invalid for want of the consent of the legal guardian. Neither Yajnavalkya nor the Mitakshara lays down that the marriage of a girl effected without the consent of her legal guardian is invalid. In the case of Khushalchand v. Bai Mani (1886) I.L.R., 11 Bom., 247 the Court held that the texts on the subject were directory rather than mandatory, that the consent of the legal guardian was not necessarily of the essence of the marriage, and that it would be proper to apply the principle of factum, valet to a marriage effected without such consent, but also without either force or fraud. In the present case the girl was sixteen years old at the time of the marriage: she appears to have entered upon it not unwillingly, and the object which her paternal relatives had in view in opposing her marriage with the respondent, and now have in view in resisting this suit, is the getting of a sum of money upon what would be something very like a sale of the girl to the one-eyed man Tulshi. It seems to us that this is eminently a case to which the principle of factum valet should be applied. We therefore hold that the marriage cannot now be declared void. The appeal fails and is dismissed with costs.