S.D. Singh, J.
1. This second appeal has been filed by a husband whose suit for restitution of conjugal rights was dismissed by both the courts below.
2. The plaintiffs alleged in the first paragraph of the plaint that he was married to Akhtari, defendant No. 1, during her minority on 26th January, 1949, and that since then she has been submitting herself to her marital obligations. This allegation was denied by Akhtari as well as the other defendants in the suit. Since the plaintiff alleged that Akhlari was a minor at the time of her marriage, one might assume that in the absence of any other allegation to that effect, the plaintiff's case was that Akhtari was given in marriage by her guardian who was entitled under the law to do so.
3. The suit was contested by the defendants. Their case was that Akhtari was never married to the plaintiff, nor was the alleged marriage ever consummated.
4. It was brought out in the evidence of the plaintiff himself that Akhtari was not married by her brother, Mohammad Umar, who was her guardian for purposes of marriage, but by her uncle Iddu. An attempt was, therefore, made on his behalf to prove that Iddu gave Akhtari in marriage in the presence of Mohammad Umar and with his consent. Both the courts below have, however, held against that contention and have found that the marriage was not valid. The Munsif thought that the marriage of the plaintiff, with Akhtari was void. The Civil Judge arrived at a finding that it was not valid, but he did not decide the question as to whether it was void or invalid. It was held that in either case the plaintiff was not entitled to a decree for restitution of conjugal rights.
5. The question of consummation of marriage was also raised by the plaintiff, but was not decided by either of the two courts below. No issue was framed as to whether the marriage was consummated, and there is, therefore, no clear finding on that point. But as has been pointed out by the Civil Judge in view of the findings recorded by him that question was not quite material.
6. Before the trial Court, the plaintiffs contention was that Iddu was entitled to contract the marriage of his minor niece. But that contention was not pressed in this Court and it was conceded that in the presence of Akhtari's brother. Mohammad Umar, Iddu was not the guardian for purposes of her marriage. The position, therefore, is that Akhtari was given in marriage by a remoter relation when the person who was entitled to be Akhtari's guardianship for purposes of her marriage wag available and the question is whether such marriage is valid in law. On this point, however, there can be no two opinions. The law is stated in S. Ameer Ali's Mohammedan Law (1929 Edn.) as :
'If the more remote marries a girl or a boy when the nearer is present, the marriage is dependant upon the latter's ratification, which ratification must be distinct. Mere silence is not sufficient.'
This principle of law has been stated on the authority of Badd-ul-Mukhtar. Volume II, page 216.
Bailie states the law in his Digest of Mohammadan Law (1865 Edn.) as:
'If a minor, whether male or female, be contracted in marriage by a more distant guardian, while a nearer is present and competent to the guardianship, the contract is dependent on the sanction of the nearer; but if the nearer be incompetent by reason of minority or insanity, though of full age, the contract is lawful; and, in like manner if the nearer guardian be absent at such a distance as precludes him from acting, the marriage contracted by the more remote is also lawful.
7. The position in this case is that the brother of Akhtari was present, according to the plaintiff's own contention, at the time of her marriage. If that were so, it was necessary for the plaintiff to allege and prove that the marriage was ratified by Akhtari's brother or that Iddu gave Akhtari in marriage with his consent, in which case the marriage would be as good, as in the case of ratification by him. There is, however, no allegation on behalf of the appellant that Mohammad Umar had given his consent for Akhtari being given in marriage by Iddu, or that the marriage was later on ratified by him.
As the law has been stated in S. Ameer Ali's Mohammedan Law, mere silence of the guardian on the occasion of the marriage of the minor being contracted by a remoter relation is not enough. Even this alleged silence of Mohammad Umar was not pleaded in the plaint. The Civil Judge mentions on page 2 of his judgment:
'It was also pleaded that even if right of contracting marriage was denied to Iddu as the guardian of the respondent No. 1, this marriage was not invalid or void because Mohammad Umar elder brother of respondent No. 1, was present on the occasion of this marriage and had given his consent and appointed Iddu as his agent for this purpose.'
I have looked into the plaint in vain for finding any such allegation in it and it was conceded by the 'learned counsel for the appellant that these facts were not alleged by him in the plaint. It is difficult, therefore, to understand wherefrom the Civil Judge gathered these facts for preparing his judgment. In fact the plaint does not even show that Akhtari was given in marriage by her uncle Iddu.
8. In order, therefore, that the marriage of a minor may be valid, it must be contracted by her guardian (recognised as such for purposes of marriage under the law.) In case, however, the marriage is contracted by a remoter relation, when a nearer one is available, it must be with his (guardian's) consent or be ratified by him subsequently. The case of Chiragh Bibi v. Ghulam Sarwar, 60 Ind Cas 453 (Lah), which was relied upon by the learned counsel for the appellant does not go beyond this.
9. The position, therefore, is that Akhtari may, according to the plaintiff's evidence, be be lieved to have been given in marriage by her uncle Iddu, when her brother Mohammad Umar was available for acting as her guardian.
10. It was argued that even. Mohammad Umar was minor at the time of Akhtari's marriage. Even this fact has not been alleged in the plaint, nor is there any evidence that Mohammad Umar was minor either according to the general law of minority, or according to the Muslim Law. Mohammad Umar was examined as a witness in the case as D. W. 1 on 2nd April, 1954, and he gave his age as 26 years. He should, according to these figures, be 21 years of age on 26th January, 1949, when the marriage took place. Even according to the general law of minority therefore, he was major when the marriage took place.
11. And if according to personal law, Mohammad Umar is required only to have attained the ace of puberty, he would have attained puberty even earlier.
12. The question then is whether the marriage of Akhtari was a valid (Sahih), irregular (fasid), or void (batil) marriage. It could not possibly be a valid (sahih) marriage, as Akhtari was-not given an marriage by her guardian, or by the remoter relation with his consent. The only question to be decided, therefore, is whether the marriage is fasid or batil. Fasid marriages are discussed in Mulla's Principles of Mohammad Law in paras 254 to 259 and 263 of the 1955 edition, and a marriage of this type is not referred to in any one of these paragraphs. Where the marriage of a minor girl is contracted by a person who is not her guardian, the position of that person is just like that of an imposter. The Muslim Law recognises that a remoter relation may act as a guardian for purposes of a minor's marriage under certain circumstances, but those circumstances are such as make the remoter relation a de facto guardian of the minor, e.g., when the guardian is not available being away at a distant place, or his nonavailability on account of illness or some other cause. The remoter relation may also act with the consent of the guardian, or there may be a case or ratification of the marriage by the guardian which also amounts to giving of consent to the marriage with retrospective effect.
These are all, therefore, cases in which the remoter relation may be believed to be acting as a de facto guardian of the minor. But where the guardian is not only available for giving the minor girl in marriage, but even present, no question of a remoter relation acting as her de facto guardian can possibly arise. To my mind, therefore, where a remoter relation gives a minor girl in marriage without the consent of the nearer relation who is recognised under the law as the guardian for purposes of marriage, or where the marriage is not subsequently ratified by him and circumstances indicate that the guardian was available for purpose of the minor's marriage, the contract of marriage, entered into by the remoter relation, is batil or void and of no effect.
13. Even if such a contract is regarded only as fasid, consummation of marriage would not validate the same. Consummation of marriage would confirm only a valid marriage of the minor, i.e., only in cases he or she is given in marriage by a guardian, other than her father or grand-father. The position in case of a marriage contracted by a person, who is not the guardian, is quite different. Where marriage is contracted by such a relation, even consummation of marriage would have no effect. An irregular marriage has no legal effect before consummation, and even after consummation, it does not bind the parties, though certain consequences follow from it. The children of such a marriage would be legitimate. The wife may even be entitled to her dower. The marriage will not, however, create mutual rights of inheritance between husband and wife. Obviously therefore, the wife cannot, even in case of a fasid marriage, be compelled to submit herself to her alleged husband.
14. The appellant is, thus, not entitled to restitution of conjugal rights and the suit was rightly dismissed.
15. The appeal has no force and is consequently dismissed with costs to the respondents.