1. This is an appeal by defendant No. 1 arising out of a suit for restitution of conjugal rights. The plaintiff's case was that the defendant No. 1 was married to him on the 25th of September, 1918 on a deffered dower amounting to Rs. 500 plus 2 dinars by her father acting as her guardian, but that she and her relations, the other defendants, were now refusing to send her to the plaintiff. The defence taken by the defendant appellant was that she was not aware of the alleged marriage, that her father had never consented to it, and that she being a Shiah and the plaintiff being a Sunni, no legal valid marriage could have been contracted and, lastly, that on attaining puberty she had repudiated the marriage.
2. The trial Court had decreed the claim. It found that the defendant No. 1 was duly married to the plaintiff and her own father had acted as her guardian. It further found that the marriage of a Shiah with a Sunni was not illegal and had also held that the marriage having been performed by the defendant's own father she could not repudiate it, even though as a matter of fact she did so repudiate.
3. On appeal the lower Appellate Court has confirmed that decree. It has held that the marriage was in fact performed with the consent of the father and that the difference in the religions of the parties did not make the marriage void. Before it the finding as to her having exercised the option of puberty was not challenged and it held that though, where a father fraudulently^ negligently contracted his minor child in marriage, the marriage was voidable at the option of the minor; nevertheless in this particular case there was no evidence to accuse the father either of negligence or of fraud.
4. In second appeal two points have been urged on behalf of the defendant: (1) that under the Shiah Law the marriage of a Shiah woman with a Sunni husband was illegal and nullity; and (2) that in any case, such marriage was voidable.
5. As some argument has been advanced on behalf of the respondent on the point, it is necessary to state that, in my opinion, the personal law which ought to be considered in the case should be the personal law of the defendant. The plaintiff desires to force an alleged marriage on the contesting defendant. The defendant is, therefore, entitled to say that under the law by which she herself is governed such a marriage was void or voidable. It would be grossly unjust to decree the claim on the strength of the personal law governing the plaintiff. It is a well settled rule that the law to be observed in the trial of suits shall, in the absence of any enactment or usage having the force of law, be the law of the defendant, and in the absence of any specific law and usage, justice, equity and good conscience. Furthermore, under Section 37, Sub-clause (2) of the Bengal N.W.P. and Assam Civil Courts Act the Court, in cases not provided for under Sub-clausse (1), has to act according to justice, equity and good conscience. There can be no doubt that justice, equity and good conscience require that the question of the validity of the alleged marriage must be determined according to the personal law of the defendant, that is the Shiah Law.
6. If the first question were to be answered on the authorities of Shiah Law available in the English language, the answer can only be in the negative, that is to say, that a marriage between a Shiah woman and a Sunni husband is not illegal.
7. There can be no doubt that there has been a divergence of opinion among the Shiah jurists. According to the one set of commentators the equality in respect of Islam is the only condition necessary for the validity of the marrige. According to another sat, equality in Islam alone is not sufficient, but there must also be equality in Iman. Iman in the Shiah text-books is used in a special sense so as to distinguish the Shiahs from Sunnis or other sects of Islam.
8. Mr. Baillie's Digest of Mohammadan Law, Vol. II, is composed mainly of translations from the Sharaya-ul-Islam which had been made and published at the suggestion and with the aid of the Nawab Saiyed Muhammad Husain, Khan Bahadur Tuhawur Gunj, who was himself a Shiah. Mr. Baillie had also access to the Digest of Shiah Law compiled under the superintendence of Sir William Jones. At page 34 of Vol. II, Mr. Baillie states as follows:
Equality is a condition in marriage, that is in respect of Islam or the general profession of the Mussalman religion. Whether it is also a condition in respect of Islam, or true belief, is a question of -which there are two traditions; but according to the most notorious or generally received of these, equality in respect of Islam is all that is required.
9. Mr. Shama Charan Sircar, in his Tagore Law Lectures, has extracted the principles of Shiah Law from the Sharaya-ul-Islam and occasionally from the Rouzat-ul-Ahkam, Mafatih Irshad and Tahrir-ul-Abkam, which he considered books of 'paramount authority among the Imamias.' On points difficult and doubtful he invariably consulted the learned Mujtahid of Lucknow who was with the ex King of Oudh. He has not merely adopted the translations of Baillie, but has checked them himself. In his Lecture No. 13 he says:
Equality is a condition in marriage, that is in respect of Islam, or the general profession of the Mohammadan religion.
10. As to the necessity of Iman, he, on the authority of Sharaya-ul-Islam, says:
The most notorious of the two traditions is that equality in respect of Islam is all that is required.
11. He, however, quotes Tahrir-ul-Ahkam to say that the man's ability to support; the woman is a condition in addition to that of Islam.
12. Mr. Ameer Ali, in preparing his Mohammadan Law of the Shiah School, has made use of Mabsut, Nihaya, Istibsar, Intisar, Hidaya, Sarair, Ghunia, Sharaya-ul-Islam, Jawahar-ul-Kalam, Jama-ush-Shittat and Siratun Nijat (vide Vol. I, p. 32), In Vol. II, at page 416, his conclusion on this disputed point of Shiah Law is:
Islam and ability to support the wife are the two necessary conditions to constitute a well assorted marriage. A Muslim possessed of sufficient means to maintain a wife may among the Shiahs marry any Muslim woman without question of lineage or rank; for are not, it is pertinently asked, all Muslims equal
13. This statement of law is based on the authority of Sharaya and Jama-ush-Shittat. Again at page 450 he remarks:
As regards equality two conditions alone are insisted upon:
(i) Equality in respect of Islam, in other words, the general profession of the Islamic religion; and (ii) ability to support the wife.
14. At page 27 he has remarked generally:
Sunnis and Shiahs may validly intermarry without any change of sect or communion.
15. Mr. Tyabji in his principles of Mohammadan Law, paragraph 80, when considering whether a marriage should not be avoided on the ground of inequality, says that the Shiah Law requires equality only in regard to Islam.
16. In the case of Syed Gholam Hussain v. Musammat Setabah Begam (1866) 6 W.R. 88, a Bench of the Calcutta High Court had to decide the question as to whether a Sunni could marry a Shiah woman. They remarked that they could nowhere find that a Sunni was incapacitated from marrying a Shiah and accordingly held that the marriage was good. That case, however, may be distinguishable on the ground that it was the defendant, a representative of the husband, who was pleading the invalidity of the marriage of the plaintiff.
17. The learned advocate for the appellant, who has argued the case with great ability, realised that he had to face all these authorities. The line of argument adopted by him was that all the above-mentioned authorities are substantially based on the Sharaya-ul-Islam, but that the view of its author has not been accepted by a number of other eminent jurists. His contention, therefore, has been that in face of the other authorities which outweigh Sharaya-ul-Islam, the marriage should be held to be void.
18. That it was likely that a divergence of opinion might arise becomes at once apparent when it is appreciated how the authenticity of traditions came to be examined centuries afterwards. Differences of opinion were quite natural. When such differences arose among the Sunni jurists Imam Abu Hanifa, Imam Malik, Imam Shan and Imam Hanbal, who flourished in the first and the second centuries of the Hijra, it is not at all surprising that differences of opinion arose among the Shiah jurists also of whom the earliest jurists, whose book is in existence, namely, Ali Mufid, flourished in the third and the fourth centuries. The point in dispute cannot now be decided by Courts sitting so many cen-turies afterwards by an examination of traditions only. Reliance must be placed on the opinion of recognised jurists who alone could have undertaken the task of shifting the traditions of and in cases of divergence, on their comparative superiority.
19. The first difficulty in our way is that all the authorities referred to by the various commentators are not available to us. It is, therefore, impossible to find out exactly how many authorities are one way and how many the other way. Even most of the books which have been made use of by Messrs. Baillie, Shama Charan Sircar and Ameer Ali, have not been laid before us. It is, therefore, not an easy task to say that the conclusion at which these learned authors arrived was necessarily wrong or that it was not supported by authorities other than Sharaya-ul-Islam. Another danger that has to be guarded against was pointed out by their Lordships of the Privy Council in the case of Abdul Fatah Ahmad Ishak v. Russomoye Dhur Chowdhry (1895) 22 Cal. 619 and the case of Baqar Ali Khan v. Anjuman Ara Begam (1903) 25 All. 236. In the last mentioned ca3e their Lordships remarked.
That danger is equally great whether reliance be placed upon fresh texts newly brought to light or upon fresh logical inferences newly drawn from old and undisputed texts.
20. It is, therefore, dangerous to depart from the view of the law which has remained unchallanged for at least over half a century and which is to be found in the Sharaya-ul-Islam, the book of the highest authority in India, merely because some other authors have taken a contrary view.
21. At to the Sharaya-ul-Islam, Mr. Baillie in his Vol. II, p. 26 has said that it is a work of the highest authority. Mr. Shama Charan Sircar has called it a work of the highest authority, at leas6 in India, and more universally referred to than any other Shiah Law book and the chief authority for the law of the Shiahs in India. Mr. Ameer Ali, in his introduction to Vol. I at page 31 has pointed out that the Sharaya-ul-Islam is a well-known work on the Shiah Law on which several commentaries are in existence. It is true that according to Mr. Ameer Ali the narrow conceptions of the author of Sharaya-ul-Islam have by gaining ground, stopped all growth, but this is bound to be so when conclusions are based on traditions which cannot alter by mere lapse of time. Mr. Ameer Ali has himself in his book largely relied on Sharaya-ul-Islam. In the ease of Agha Ali Khan v. Altaf Hasan Khan (1892) 14 All. 429, Mahmood, J., in delivering the judgment of the Pull Benoh, remarked at page 420 that:
the Sharaya-ul-Islam is the most authoritative text-book of the Shiah Law.
22. In the case of Mahomad Abid All Kumar Kadar v. Ludden Sahiba (1887) 14 Cal. 276 the learned Judges of the Calcutta High Court, at page 286, were not prepared to doubt the correctness of the Sharaya-ullslam as a binding authority amongst the Shiahs in India. In the case of Nazir Husain v. Rafiq Husain (1911) 8 A.L.J. 1154 Piggott, J., remarked that the impression which he gathered from the Full Bench case of Agha Ali Khan v. Altaf Hasan Khan (1892) 14 All. 429 was that:
the Sharaya-ul-Islam is the leading and the most weighty authority for the law applicable to the Shiah sect in India.
23. In the case of Khurshed Husain v. Fyaz Husain (1914) 36 All. 289, Rafique, J., remarked:
the opinion of the learned author of the Sharaya must carry greater weight than the opinion of other Shiah jurists, as he has been held by the Courts in this country from early times as the chief authority on the law of the Shiahs.
24. The learned Counsel for the parties have not been able to lay before us the original text of the Sharaya-ul-Islam, but Mr. Agha Haider has placed before us the book called Jamaa-i-Razwi which purports to be a translation of the Sharaya published at Lucknow. This book shows that the extracts made by Mr. Baillie are accurate. There is a special section which deals with the oases of prohibition in marriage (hurmat). These are stated to be six in number. Among these six cases infidelity is mentioned as one, but the subject of a marriage between a 'momina' with a Muslim, other than a 'Mooain' is not discussed at all. This discussion finds place separately under a heading 'Things connected with the contract' (Lawahiq Aqd). These latter are seven in number. The first is equality. The learned author mentions that equality as a condition in marriage means equality in respect of Islam. He then goes on to say that as to whether 'Iman' is also a condition is a question on which there are two traditions, the most notorious being that Islam, is all that is required. The text of Sharaya-ul-Islam is quoted and its commentary Jwahir-ul-Islam shows that the translation by Baillie is perfectly correct. The original Arabic word in the text is. Azhar which means most notorious. There can be no doubt that the author of Sharaya-ul-Islam has nowhere said that without 'Iman' the marriage would be a nullity or void, but later on he considers it 'Makruh.' Mr. Baillie has translated this word as abominable which is rather too strong a word. A better translation would be 'obnoxious' or 'hateful'. An act which is makruh is not absolutely forbidden as 'haram' would be, nor is there any sin in committing it, but it is to be deprecated and, and as far as possible, to be avoided. Even if there had been any ambiguity in the text of Sharaya which there is not, the fact that the question is not discussed under the heading 'Hurmat', that two traditions are mentioned by the author one of which is called the most, notorious and that it is nowhere stated that the marriage is illegal or void, the. conclusion would have been justified that the author did not consider such a marriage to be absolutely prohibited but only undesirable.
25. Mr. Agha Haider's main contention is that in view of the other text-books tha-Sharaya-ul-Islam should not be considered an authority on the question before us
26. The first book relied upon by him is Sharah-i-Loma. Undoubtedly, this is a. book of some authority in the Shiah School. But when dealing with its comparative merit it is necessary to point out that this book is not mentioned in the lists of the authorities on Shiah Law prepared by Mr. Shama Charan Sircar or by Mr. Ameer Ali, but Mr. Tyabji in his Muhammadan Law, 2nd edition, at page 86, does, however, mention it. Sharah-i-Loma Damishqiya is named Rauzatul Bahiah and is a commentary by Zain-ul-Abdin on Loma Damishqi-by Ibni Makki. The text Loma Damishqi-itself is by no means clearly in favour of the appellant. It merely says that. kafat (equality) is an accepted condition in marriage and after discussing the marriage with an infidel, or Nasib or Nasiba, the author merely says that:
there are two traditions on whether the marriage of momina with 'Mokalif' is valid.
27. It may very well be urged that had the author's view been that such a marriage is absolutely illegal, he would not have contented himself by merely referring to the divergence of opinion and not saying that it is prohibited.
28. But there is no doubt that the author of the Sharah-i-Loma, when dealing with the conditions of marriage has taken the view that equality (kafat) in marriage means equality both in Islam and Iman. He first says that the marriage with a Nasibi man or Nasibia woman is not valid as they are worse than Jews and Christiana. He then goes on to consider the question whether the marriage of a momina with a mukalif from whatever sect of Islam he may be even though he be a Shiah other than Imamia, is or is not valid. He quotes that therea re two traditions on this point; one that it is invalid and the other that it is valid but hateful. The commentator himself prefers the first view. It is obvious that the view of the author of Sharah-i-Loma is an extreme view which would make not only the marriage of an Imamia with a man of every other sect of Islam invalid, but also her marriage with a Shiah other than the Imamia invalid. The author has, however, (pointed out that the first view is based on three traditions:
The Mom ins are equals of each other.
29. If comes to you some one whose moral conduct (khulq) and religion you agree with then marry him. If you do not act tike this there will be mischief on the earth and great trouble. A Momin does not agree with the religion of any one other than a Momin.
30. An Arifa is not to be kept near any one but an Arif.
31. The first two traditions are based on the sayings of the Prophet. As in the lifetime of the Prophet the different sects did not come into existence at all, and as the special use of the word Momin by the Shiah jurists in relation to themselves is of a much later origin, it is obvious that the first two traditions cannot be said to be decisive on the question. The word Momin there obviously means Muslim. The third tradition is quoted from Imam Jafar Sadiq and uses the words Arif and Arifa. Now Sunnis and Shiahs both regard Hazrat Jafar Sadiq in high reverence. And there is nothing to show that the words Arif and Arifa were at that time used for Shiahs, and for the matter of that, it is not clear that even now they mean anything more than devout and pious persons. Literally Marifat means recognition. The learned Advocate for the appellant has referred us to a more restricted meaning given to it in a legal lexicon 'Majmaul Bahrain,' but even that book does not suggest that the word Arif is applied to Shiahs as a sect.
32. Furthermore, the third tradition seems to be merely directory for Sheikh Tusi in his book Istibsar, third volume, page 990, has stated a tradition that Faizul questioned Hazrat Abu Jafar as to whether a Nasib could marry an Arifa woman. He replied 'no,' as a Nasib is a ' kafir'. Faizul then asked what about the case if any one other than a Nasib who is not an Arif marries her. He replied one other than he is preferable (ahabbo) to me'. This would also suggest that in the ease of Nasib the marriage would be illegal but in the other case only undesirable.
33. Besides basing his opinion on these three traditions, the learned author mentions a further ground that a woman takes from the etiquette of her husband and may have his religion forced on her. Referring to the second view, he has pointed out that it was adopted with 'kavayatha' by Al Mufid. Al Mohakkiq Ibn Saiyid on the ground that Iman was the same thing as Islam and that the ground for coupling with it the condition of Iman was weak because the traditions are either incomplete or weak and Majhul.
34. It is interesting to note that we have had two printed editions of Sharah-i-Loma produced before us. The marginal note on the edition produced by the learned advocate for the plaintiff when referring to the second tradition says that this does not involve the absolute prohibition of the marriage of any one other than the one mentioned therein. In the second edition there is a marginal note that sufficiently of Islam has been accepted by Al Mufid Ali Mohakkiq and Ibn Hamza. And there is a further note that the second tradition has been criticised in Masalik in as much as it does not indicate the scope of the validity of marriage and that the joining of 'khulq,' (conduct) with din (religion) in kafat is not in accordance with the well-accepted doctrine. The marginal note adds that the idea is to indicate the husband in his perfection, and it is said that the prohibition of the marriage with any one other than that mentioned is not necessarily Invalid.
35. It has been contended by the learned advocate for the appellant that the word Nasib means a Sunni and that, therefore, the marriage is void according to the unanimity of opinion. He has cited before us a passage said to have been taken from Vol. II of Jawahar-ul-Kalam to show that a Nasib is not only one who hates the Ahlibait, but also the followers of Ahlibait. He has, therefore, argued that Nasib stands for all sects of Islam other than Shiahs.
36. But in view of misquotations from Vol. V made by the translator for the appellant, referred to by me hereafter, I am not prepared to take this passage as correctly representing the opinion of the author (specially as in Vol. V he uses the word Nasib for a particular sect and the word Mukhalif for all sects other than the one to which the author himself belongs) when Vol. II itself has not been laid before us. This contention is also contrary to the way in which the distinction between Mukhalif and Nasibi is drawn in Sharah-i-Loma itself. Nasibi is a class by itself, whereas Mukhalif may be a person belonging to whatsoever sect of Islam even though he be a Shiah (ghair Imamia). It is obvious that the word Mukhalif stands for all the sects of Islam other than the Shiahs and the Nasibis. The distinction is made clearer still in Jamaa-i-Kazvi (translation of Sharayaul-Islam) where it is pointed out that a Nasib is one who proclaims his hostility to Hazrat Ali and Ahlibait or one who though does not proclaim it but whose hostility is evident from his conduct. It goes on to add:
The mere fact that he is a Mukhalif of the Imamia religion will not make the rule as regards Nasibis applicable to him.
37. Mr. Ameer Ali, in his Vol. II, page 6, has pointed out that the enemies of Ahlibait are called Nasibis (rebels) or khawarij (insurgents or deserters). In Lane's Arabic English Lexicon, Book I, part 8, Nawasib, Nasibia and Ahlul Nasb ate stated to be
appellations of a sect who made it a matter of religious obligations to bear a violent hatred to Ali, the son of Abu Talif; so called because they acted with hostility or enmity towards him and openly opposed him : they were a sect of the khawarij.
38. Similarly in Farshang published by the Nawal Kishore Press of Lucknow Nawsib is said to be a sect of Mussalmans who bear enmity towards Hazrat Ali. It is clear that Sunuis who have a reverence for Hazrat Ali and Ahlibait do not come under this appellation which is an historical expression for a particular sect which never recognizes Hazrat Ali as the rightful Khalifa. This point will be made very clear when the next authorities are discussed.
39. The next book relied upon on behalf of the appellant is Jamaap-i-Abbasi by Bahauddin which, according to Mr. Ameer Alt is
generally considered to be the work of. Mahauddin Muhammad Amili.
40. It is a book in the Persian language. Al Muhakkiq has given six things as being haram in marriage. This author, however, gives eight things as being haram in marriage. His classification does not,, however, tally with that in Sharaya-ul-Islam. The sixth thing mentioned by him is marriage of a Momina woman with-a Sunni husband. He has, however, added that some of the Mujtahids regard it as only makruh. On the same footing with such a marriage are placed other prohibitions like the third one, namely, marriage of a woman by her vakil to himself, and the seventh one, namely, destruction of articles which are given in sacrifice at the time of marriage knowing that the owner is not consenting. It is possible to suggest that the third prohibition would make the marriage only voidable, and the seventh one would have no effect on the validity of the marriage at all.
41. The next book Majmaul Bahrain is really an Arabic legal lexicon and is by the author of Jatnmai-Abbasi. In this the compiler has expressed the view that kafat means not only Islam, but Iman and the ability to maintain the wife.
42. The next authority relied upon is a Persian book, Zakhiratul Maal, by Sheikh Zainul Abdin of Karbala. In answer to the question as to whether the marriage of a Sunni woman with a Shiah husband or a Shiah woman with a Sunni husband is valid, the author says the first one is valid and the second one is invalid. Ha adds that soma of the learned men have regarded the marriage of a Shiah woman with a Sunni husband as valid, but this is the weaker view. He goes on to add that if the marriage of a Shiah woman with a Sunni husband takes place under ignorance of law, without purposely refraining from finding out that law, then there is no sin, and the issue will be legitimate. It is also said that if the marriage takes place under compulsion, there would be no sin.
43. It is obvious that the author of Zakhiratul Maal does not consider that a Sunni is a Nasibi for in that view he would not have upheld the marriage of a Shiah husband with a Sunni woman as valid; for as to Nasibias there is a unanimity of opinion that an intermarriage is illegal.
44. The next book quoted is Alkafi which also says that the marriage with Nasibi is not valid. This book, in view of the meaning of the word Nasib as given in the dictionaries, is not in point.
45. An extract from the fifth volume of Jawhar-ul-Kalaoa has been quoted to show that it is illegal to wed a Shiah woman to a Nasib who declares his enmity with Ahailbait. On a careful examination I discovered that the passage embodying the view of the author of Jawahar-ul-Kalm which is against the appellant's contention had not been quoted. After discussing the two traditions and quoting the reasons for and against each, the learned commentator's own conclusion is that in the matter of equality in marriage Imam is a synonym for Ialam and is not used in its special meaning for the special meaning attached to Iman is of a later origin and is not a necessary condition in marriage. In his opinion the validity rests on kalma alone. Of course an exception is made in the case of Nasbis who are regarded as being outside the place of Islam, even worse than Christians and Jews. But it is pointed out that every Mukhalif is not a Nasib.
46. This exhausts the authorities relied upon on behalf of the appellant.
47. Mr. Agha Haider has also tried to rely on the opinion of Maulvi Nasiri Sahib who apparently was examined in this case as an expert witness. In my opinion his evidence does not come within Section 45 of the Indian Evidence Act and is inadmissible. The Shiah Law on marriage is the law of the land and is in force in British India, It can by no means be called foreign law; nor such law is a science or art within the meaning of that section. It is the duty of Courts themselves to interpret the law of the land and apply it and not to depend on the opinion of witnesses howsoever learned they may be. It would be dangerous to delegate their duty to witnesses produced by either party. Foreign law, on the other hand, is a question of fact with which Courts in British India are not supposed to be conversant Opinions of exports on foreign law are, therefore, allowed to be admitted.
48. The learned vakil for the respondents has confessed that he has had no access to the text-books of Shiah Law, not even those to which there are references that they hold the view in his favour, because such books are not easily available. He has placed his reliance on the law to be found in the English commentaries and has urged that it is not fair to say that those books are based merely on the Sharaya-ul-Islam. He has pointed out that Mr. Shama Charan Sircar and Mr. Ameer Ali have made use of a large number of other books which have not been laid before the Court. He has, therefore, urged that the conclusion at which these learned authors arrived must have been arrived at after an examination of all the leading books. Furthermore, he has contended that even if there are other books giving preference to the contrary opinion, the authority of Sharaya-ul-Islam which has always been regarded as the most authoritative text-book so far at least as India is concerned, should be accepted.
49. Sharaya-ul-Ialam is undoubtedly the most universally known authority on Shiah Law so far at least as India is concerned. The view of Al Muhakkiq, its athour, is undoubtedly that such a marriage is not illegal. It cannot be disputed that mixed marriages of this kind have existed and do exist in this country. The plaintiff's witness, Ashiq: Ali, who is an uncle of the contesting defendant, has stated that his own. mother was a Shiah and his father a Sunni and that such mixed marriages do take place. Even the defendant, Mt. Aziz Bano, in her statement on oath, has admitted that marriages between Shiahs and Sunnis do take place, though she has added that a Saiyid's daughter is not sent to a Sunni. She has also admitted that her grand-mother's relations are Sunnis. The existence of such marriages cannot be doubted. It is, therefore, a fair inference to draw that the view of the author of Sharaya-ul-Islam has been accepted so far as India is concerned and that the contrary view that such a marriage is illegal has not been accepted here, though the fact that such marriages are not very common may be said to indicate that they are considered undesirable. To take the view that the rule laid dawn by the author of Sharaya-ul-Islamis not the correct law would have most far-reaching effect and I am by no means satisfied that Al Muhakkiq's view is not the correct view. His is a liberal view which considers that persons belonging to sects other than Shiahs are within the pale of Islam and there is equality between them so far as marriage is concerned. The view expounded by the author of Sharahi Luma would render illegitimate not only the children of a Shiah wife married to a Sunni husband but also of all Imamia women married to Ghair Imamia Shiahs. It seems to me that it is now too late in the day to urge that the view of the author of Sharahi-Luma should be accepted.
50. As to the text books in Persian, I am by no means satisfied that in India they are of authority comparable to Sharaya-ul-Islam or Jawahirul Kalam, or for the matter of that, even to Sharai Luma.
51. The fact that only on one occasion, when the point was raised, the Calcutta High Court decided against the invalidity, and that since then such a marriage has not been challenged, at least so far as the reported cases go, is very significant.
52. The conclusion of Mr. Ameer Ali, who is well acquainted with the doctrines of Shiah Law, also carry great weight. It may further be poinded out that Tudball and Bafique, JJ., in the case of Khurshsd Husain v. Fyaz Husain (1914) 36 All. 289, had before them 19 authorities including Sharahi Luma and Jawahar-ul-Kalam on the one hand and yet they did not consider them to be of sufficient weight as against Sharaya-ul-lslam. In the present case even Jawahar-ul-Kalam supports Sharaya-ul-Islam.
53. Even apart from all these considerations it is the duty of Courts, in cases of divergent opinion, when it seems impossible to ascertain the comparative merits of the authorities, to accept the view which is more in accordance with equity, justice and good conscience. Mr. Ameer Ali in his preface to the third edition at page 7 has referred to the important rule to which attention had been called by Sir William Jones that:
When the great expounders of Musalman Law have enunciated divergent doctrines or expressed different opinions, the Judge administering Musalman Law is to adopt the one most conformable to equity and the requirements of the times.
54. Mr. Tyabji also in his book on Muhammadan Law, paragraph 11(a) pointed out:
When Musalman jurists of authority have expressed dissentient opinions on the same question the Islamic Courts presided over by a Kazia have authority to adopt that view which in the opinion of the presiding officer is most in accordance with justice in the particular circumstances.
56. And in paragraph 11(b) he has considered how the functions and powers of the Kazia are exercised by the Courts of British India. In this case there can be no doubt that the view that the marriage is not illegal is most conformable to equity and the requirements of the times.
57. I am, therefore, of opinion that the marriage of a Shiah woman with a Sunni husband is not absolutely illegal so as to make it void.
58. There now remains to consider the second question as to whether such a marriage is voidable even though contracted by the father. Mr. Ameer Ali, in his Muhammadan Law, Vol. II, page 420, has on the authority of Jamaa-ush-Shfatafe remarked:
When the contract is entered into by the father or in his absence by the nearest living paternal ancestor, the minor, whether male or female, has no option on attaining puberty unless the contract is to the manifest disadvantage of the minor or has been carelessly or wickedly entered into, e.g., when the father of a girl has married her to a lunatic or an eunuch or if a boy has married him to a female who is unfit for connubial intercourse or has bound him to pay a dower which is utterly beyond his means, the contract is subject to the minor's option on attaining puberty. These examples are by no means exhaustive.
59. Mr. Wilson in his note under paragraph 88, when referring to another statement in Mr. Ameer Ali's book that there seems to be a general consensus amongst all jurists that where a father has acted wickedly or heedlessly the marriage is voidable.
has said that a Muhammadan marriage being simply a civil contract this agrees with the general maxim of the English Law. Mr. Tyabji in paragraph 70 of his book says:
The authorities of all sects of Muhammadan Law are agreed that where a father -or paternal grand-father fraudulently or negligently contracts his minor child or grandchild in marriage, it is voidable at the option of the minor, on his or her attaining majority.
60. Further in paragraph 72 he has stated that the more approved Shiah doctrine is that the marriage contracted by a father or paternal grand father on behalf of his minor child or grand child is voidable by the minor on his attaining majority, if 4ht father or grand father has agreed to an improper dower.
61. There is no doubt that even on this question there is some divergence of opinion and there are two traditions as to whether the marriage contracted by the father is or is not absolutely binding. The learned counsel for the parties, however, have not produced before us any original texts on the question one way or the other. Mr. Baillie's Digest, though it states that according to the more approved of the two traditions a young girl who has been given away in marriage by her father has no option after attaining puberty, does mot expressly consider the case where the marriage is to the 'manifest disadvantage of the minor' or 'has been carelessly or wickedly entered into.' As to this contingency the book is silent. Whereas both Mr. Ameer Ali and Mr. Tyabji have, as 'already mentioned, expressed the view that even in the case of a marriage performed by the father there is no absolute finality. It would be in accordance with equity, justice and good conscience to accept the tradition which says that in certain special cases there is an option left to the minor boy or girl even though the marriage has been performed by the father or grand-father.
62. I have already said that although there is a great divergence of opinion on the question of the validity of the marriage of a Shiah woman with a Sunni husband, there is absolute unanimity that such a marriage is at least makruh, that is to say, 'obnoxious,' or hateful It is considered makruh because of religious sentiments as well as the danger that a wife is likely to adopt the religion of her husband. It seems to me that if a minor Shiah girl has been given away in marriage by her father while of nonage, when it was impossible for her to have any voice in the matter, and on attaining puberty she considers the marriage to be repugnant to her religious sentiments and grossly disadvantageous to herself, it would be contrary to all rules of equity or justice to force such marriage on her and thereby compel her to live with a person who is abhorrent to her. When her religion says that such a marriage is abhorrent she must be allowed the option to repudiate it, if any option can ever exist. Had she allowed the marriage to be consummated, or in some other way ratified the marriage then her option of puberty would have been gone and the marriage would be a perfectly valid marriage and her issue legitimate. But in this case it is an admitted fact that there has yet been no consummation at all. The finding of the first Court, which was not challenged before the lower Appellate Court, is that she repudiated the marriage on attaining puberty. If, therefore, she had an option in the matter, the marriage has been avoided. In view of the rule of Shiah Law as laid down by Messrs. Ameer Ali and Tyabji, and in view of the fact that no texts expressly laying down a contrary opinion have been cited before us. I am bound to hold that the option of puberty existed in this case.
63. It follows that, although I hold that the marriage of a Shiah woman with a Sunni husband, if entered into when the parties are of age or if performed by her guardian, and ratified by her on attaining puberty, is valid and legal and her offspring are legitimate, I also hold that such a marriage, if performed by her guardian, no matter whether he is the father or the grandfather, is capable of being repudiated by her on attaining puberty because it may affect her religious sentiment arid may therefore be said to be to her manifest disadvantage. This is a liberal view to take and is obviously in accordance with justice, equity and good conscience as well as the requirements of the times.
64. I may further add that even if a decree for restitution of conjugal rights could have been passed, it would have been almost a futile one as under the amending Act No. XXIX of 1923 the defendant cannot even be detained in prison for disobedience of a decree for restitution of conjugal rights.
65. I would, therefore, allow the appeal and setting aside the decrees of the Courts below, declare that though the marriage was not illegal, yet the defendant had an option of repudiation which has been duly exercised, and that, in consequence, the marriage tie no longer subsists. She will of course have no longer any claim for any dower.
66. This appeal arises out of a suit for restitution of conjugal rights and raises a point of Muhammadan Law, the decision on which must have a far-reaching consequence. Owing to the importance of the point involved this appeal was laid before a Bench of two Judges although it was ordinarily cognisable by a single Judge.
67. The facts involved are all admitted in second appeal. It has been found that the plaintiff Mohammad Ibrahim, who is the respondent in this Court, is Sunni by faith. He was married with the consent of her father to the appellant, Mt. Aziz Bano, who was a minor at the time of the marriage. Mt. Aziz Bano and her father both profess the Shiah faith. Aziz Bano, on attaining majority according to the Muhammadan Law (on attaining puberty) repudiated her marriage with Mohammad Ibrahim on the ground that Mohammad Ibrahim being a Sunni by faith, and Aziz Bano herself being a Shiah, the marriage was void in law. Mohammad Ibraim wanted that Aziz Bano should come and live with him and therefore made attempts to induce her father (the mother is dead) to send away the girl to him. This being refused, he brought the suit out of which this appeal has arisen.
68. The principal plea was that the marriage was void in law. The Court of first instance found the issue in favour of the plaintiff and its judgment has been up held by the Court of first appeal which relied on the case of Ghulam Husain v. Setabah Begum (1866) 6 W.R. 88.
68. In this Court Mr. Agha Haider has contended that according to the true interpretation of Shiah Law, the marriage of a Shiah girl with a Sunni husband is absolutely void, although the marriage of a Shiah man with a Sunni girl will not be so. He has candidly confessed that so far as the authority of Sharaya-ul-Islam is concerned it is against him although it holds that a marriage like this is 'abominable' or is to be detested. He argued' that Sharaya-ul-Islam was not the only book on Shiah Law and that for the. simple reason that this was the only Shiah book that happened to be translated-and no other book was rendered accessible to the English knowing jurists. Sharaya-ul-Islam received the weight that was not really due to it. Mr. Agha Haider took us through several original texts in different books and it is due to. him that we should examine what these books have to say.
69. We then start with the fact that according to Sharaya-ul-Islam and the rule of Shiah Law as recognized by English knowing authorites, viz., Ameer Ali, Shama Charan Sircar, Wilson and Tyabji there is no inherent bar to a Shiah of either sex contracting a lawful marriage with a Sunni of the opposite sex. The opinion of most of these jurists is based on Sharaya-ul-Islam but the opinion of Amear Ali is also based on the authority of Jama-ul-Shittat. Coming then to the authorities quoted by Mr. Agha Haider the first book to be examined is Jama-ul-Riswi. It is really a Persian translation of Sharaya-uMalam which is in,: Arabic. According to the Shiah Law two things are necessary for marriage, viz., equality and the ability of the husband to support a wife. The question is: What is equality, that is to say, whether equality of religion is enough or should (mere be equality of faith in the doctrines of Shiah faith as well? On this point Jame-ul-Riawi says that there are two views. The usual view is that the husband and wife both must be Muhammadans, that is to say, must profess the Islam faith,-and that should be enough for their marriage. Others say that as a woman generally follows her husband's faith, it is not desirable that a Shiah woman should marry a Sunni husband and thus run the risk of losing her own faith by adopting that of her husband. Thus, in the opinion of the translator of Sharaya-ul-Islam, as given out in Jame-ul-Riswi, the 'better opinion' is that a Shiah woman should not marry a non-Shiah husband. The language that has been really used by the translator is to the effect that the marriage or 'nikah' of a Momina or a Shiah girl with a 'Nasib' is invalid and is to be depreoated. Mr. Agha Haider argued that a Nasib is a Suuni. We asked the learned Counsel to produce any authority to prove his statement. Mr. Agha Haider relies on Mai maul Bahrain to show that a Sunni is a 'Nasib'. Aeeoring to the Law Lexicon, Majmaul Bahrain, edited by the author of Jama-Abbasi, a 'Nasib', is one who shows enmity not only to the house of the Prophet but also to those who are their followers, that is to say, the Shiahs. This exposition of law is sought to be based on a statement of Imam Jafar Sadiq the sixth Imam. But it is extremely doubtful if any such opinion can be hung on the short 'hadis' of the said Imam. For Imam Jafar Sadiq said simply this that that person is a Nasib who shows enmity to the Ahl-Bait or descendants of Mohammad.'
70. If we recall the history of the rise of the Muhammadan faith we find that the Nasibs were really the followers of Ommaya and his descendants who made war on Ahl-Bait or the descendants of the Prophet. The Sunnis fought the house of Ommaya and took away all the temporal power from them. Thus between the Sunnis and the original Nasibs no love was lost. Thus although Sunnis and Shiahs are not at all friendly, there is no real authority for the statement that the words 'Nasibs and Kharjis' apply to Sunnis pure and simple. On the other hand, the dictionary of Lane Pool does not give Sunni as one of the meanings of the word Nasib. To sum up the author of Jama-ur-Riswi, who is only translating Sharaya-ul-Islam, gives it as his opinion that it is not open to a Shiah woman to marry a Nasib. Giving full force to all that has been said by the author it does not follow that ha prohibits the marriage of a Shiah girl with a Sunni husband.
71. The next authority relied upon by Mr. Agha Haider is Sharya Looma, Section 14. This book is not mentioned in the bibliography of Shama Oharan Sarkar and Ameer All. Tyebji mentions it at p. 86. Ehere is, however, no doubt that such a. aook exists. Bat its weight as a book of minority has been denied at least where it conflicts with the rules laid down in Sharaya-ul-Islam. The author of Sharya Looma is not known. It has not been established, though it has been asserted, that it is Ibn Makki. Discussing the question as to what is necessary for a valid marriage, viz., discussing the principle that equality is necessary for marriage the author gives the opinion that although there are two opinions on the point and one of the opinions is that Islam is 'Imam' it is safe to be cautious and therefore a Shiah should not marry a, non-Shiah. As authority for his opinion the author quotes an alleged saying: of the sixth Imam Jafar Sadiq, viz. - an Arifa could not live with a non-Arif. The whole question, therefore, is whether this tradition or 'hadis' handed down through the sixth Imam really means that a Shiah girl should not marry a nonShia husband. The answer to the question would turn upon the meaning of theword Arif. Mr. Agha Haider's contention is that an Arif is a Shiah and Arifa is a Shiah girl. Mr. Agha Haider was unable to produce before us any authority for the statement that an Arifa can mean only a Shiah girl and nobody else. Shakespeare in his dictionary says that an Arifa is a pious or devout woman. Unless therefore we take it that a bhian writer thinks that all the Shiahs are Arifa the learned Counsel cannot maintain that the 'hadia' handed down by the sixth Imam means what he contends for. The further question remains whether the word Arif was ever used, at the time when the sixth Imam flourished, in the senss of a Shiah. The authority of Sharya Looma on this point, therefore, is not conclusive. No doubt, so far as the opinion of the author goes, it is in. the appellant's favour. But the authority on which that opinion is based would not appear to support it (the opinion).
72. The next book relied upon is Jama-Abbasi. Closely connected with this book is the law lexicon already mentioned, by the same author (Baha Uddin) viz., Majmal Bahrain. This book is no doubt referred to in their bibliography by the important writers on Muhammadan Law, viz., Ameer Ali, Tyebji and Shama Gharan Sarkar. The opinion of Jame-Abbasi is recorded at p. 121 of the book. He says that eight things make a marriage 'haram' or illegal. The sixth thing is the marriage of a Momina (Shiah girl) with a Sunni. The author adds that some are of opinion that such a marriage is not illegal but only 'maqruh' (abominable). Assuming that the word haram is used to signify something absolutely illegal, the author of Jama-Abbasi quotes two opinions and does not have his own opinions with any clearness. But the same author, in his book Majmaul Bahrain is clearly of opinion that of the two opinions held, the opinion that the marriage of a Shiah girl with a Sunni husband is illegal is 'the more acceptable.' The question is whether this is a mere opinion of the author or whether it is based on something more sacred than the author's opinion. We are left in darkness on this point,
73. The next authority relied upon by Mr. Agha Haider is Zakirul-ul-Maad by Zain-ul-Abdin, otherwise known as Shaik-ul-Islam. The book is in Persian and states the law in the form of answers to questions. Two of the answers are that a Shiah male person can marry a Sunni woman, but a Shiah woman cannot marry a Sunni man. Then the question is put So the author: 'If there be no Shiah bridegroom available,whether the marriage would be valid,' the answer given is: 'If the marriage should take place in ignorance of law and without any attempt to shut one's eyes to the correct state of the Saw, the marriage would be good and the issues would be legitimate, or if the marriage be under compulsion it would be good. The author, however, goes on to express the opinion that it would be better for the people concerned to leave the country in order to avoid such mixed marriage. Again the author says that some scholars holdithat a marriage of a Shiah with a Sunni is felid, but such opinion is weak (Za-eef).
74. Apart from the authoritativeness of the opinion expressed in this book, it is clear that the author is of opinion that there is HO inherent bar to a Shiah woman marrying a Sunni man. For if anything inherently wrong in marriage be omitted in ignorance of law or under compulsion the marriage cannot become valid and the children cannot become legitimate.
75. The next book that is relied upon is Al hafi. This book is mentioned in their bibliographies by Tyebji and also by Shama Charan Sarkar. The author, in this case, also bases his opinion on the self-same tradition said to have been handed down by the sixth Imam Jafar Sadiq. One Puzail states that ha askad Jafar Sadiq if he could marry a Nasib. The reply he got was 'By God, it is surely not lawful.' Fuzail goes on to say that he repeated the question and thereupon was askad in his turn whether the parson who proposed to marry was an Arifa-Fuzail replied that she was and than Jafar Sadiq replied:
'An Arifa will navar associate with one who is non-Arif.' Thus, to find out the opinion of Al-Kafi we have to find out the meaning of the words, Nasib and Arif. These words have already been discussed above and the result arrived at is that it is not established that an Arif or Arifa meant a Shiah man or a Shiah woman alone and nobody else, and that a Nasib is not the same person as a Sunni.
76. The sixth and the last authority quoted is Jawahir-ul-Kalam, Vol. II. This author discusses the tradition said to have been handed down by Jafar Sadiq already quoted above, and comas to the conclusion that it is not lawful for a Shiah girl to marry a Nasib and a Nasib is one who hates the Shiahs The conclusion sought to ba drawn is that a Sunni hate3 Shiahs and is therefore a Nasib. The author of Jawahir-ul-Kalam, it is said, discusses who is Nasib and states that Nasib is a man who hears enmity to the Ahl-Bait and to the friends of Ahl-Bait. But the original book has not been placed before us. The friends of Ahl-Bait are said to be the Shiahs and hence it is argued that a Sunni is a Nasib.
77. Now the question is whether the authorities quoted and relied upon by Mr. Agha Haider are enough to outweigh the clear authority of Sharaya-ul-Islam. In my opinion it is not right to say that all the writers in the English language on Muhammadan Law have gone astray because of the facts that Sharaya-ul-Islam was the only book that was translated into English. The question arises If there are other equally important books or more important books on Shiah law, why did not anybody suggest the translation of such a book and why were no such books relied upon in cases so as to bring them into prominence? The simple answer must be that the authority of Sharaya-ul-Islam stands paramount and if there were any books of equal authority they would have been brought out and translated. It will be noticed that several of the books relied upon by Mr. Agha Haider are nothing but mere commentaries on Sharaya-ul-Islam itself.
78. Wherever authorities have, been quoted with the object of outweighing the authority of Sharaya-ul-Islam, the Courts have always accepted the authority of Sharya-ul-Islam as against other books. In the ease of Agha Ali Khan v. Altaf Alt Khan (1892) 14 All. 429 Mr. Justice Mahmud expressed the opinion that Sharya-ul-Islam was the most authoritative text-book of the Shiah Law. He also points out that Jawahir-ul-Islam itself is nothing but a commentary on Sharaya-ul-Islam. Again, in this Court Piggott, J., in Nazar Husain v. Rafiq Husain (1911) 8 A.L.J. 1154, expressed the opinion, based on the opinion of Mahmud, J., quoted above, that Sharaya-ul-Islam was the leading and most weighty authority so far as the Shiah Law was concerned in India. The Privy Council, in the case of Baker Ali Khan v. Anjuman Ara Begam (1903) 25 All. 236, quoted with approval a certain remark, their own dictum, in the case of Abdul Fatah v. Bussomoye Dhar (1895) 22 Cal. 619 and pointed out the danger of replying on ancient texts and supposed precepts of the Prophet where fresh texts are newly brought to light or fresh logical inferences are drawn from old and undisputed texts.
79. Following the principle laid down by the Privy Council and following the opinion expressed by Mahmud, J., and supported by Piggott, J., in this Court, I must hold that the opinion of Sharaya-ul-Islam must be accepted in preference to the opinions relied upon on behalf of the appellant. I would not repeat what I have already said, viz., most of the texts and commentaries quoted by Mr. Agha Haider do not go to the length of supporting his contention that it is a universal rule of law that the marriage of a Shiah girl with a Sunni husband is void ab initio. I am further fortified in my view by the fact that since the practice of law reporting started, and this started many years ago, we have not got a single case in the pages of the reports to show that the validity of such a marriage was ever seriously questioned. It was questioned only once, viz., in the case of Syad Gholam Husain v. Setabah Begam (1866) 6 W.R. 88, and the answer was given adversely to the contention of the appellant. I hold that as a matter of universal law it is not right to say that a marriage of a Shiah girl with a Sunni husband is void ab initio.
80. Now I come to another equally important question raised by Mr. Agha Haider in the course of his argument. It is this: although a marriage of a Shiah girl with a Sunni husband, if it has been consummated, be irrevocable and absolutely good' it does not follow that it is open to the father of a Shiah girl to marry her, during her minority, to a Sunni man, so as to deprive her of her right of repudiation of marriage on attaining majority. In other-words, Mr. Agha Haider contended that a marriage of a Shiah girl with a Sunni husband was repudiatable by the girl on attaining majority.
81. It is common ground that the marriage in the present case has not been consummated. It has been found as a fact that the girl repudiated the marriage at the earliest possible opportunity, on being aware of the fact. It has been found that no fraud was practised by the father in negotiating and celebrating the marriage.
82. It is the opinion of Sharaya-ul-Islam that although equality of faith (Islam alone is sufficient for the validity of a marriage, the marriage of a Shiah girl with a Sunni man is abominable (makruh). This opinion has been repeated-by the commentators of Sharaya-ul-Islam quoted by Mr. Agh Halder.
83. This argument leads us to examine whether it is open to a Shiah girl to repudiate a marriage contracted by her father for her during her minority. According' to the law as quoted by Mr. Ameer Ali in Vol. II, p. 420, it is open to a Shiah girl to repudiate a marriage celebrated during her minority by her father if it be to the manifest disadvantage of her. Mr. Johari on behalf of the respondent, he not been able to show any authority to contest the statement of law quoted by Mr. Ameer Ali. On the other hand, it appears that Wilson quoted the opinion of Ameer Ali with approval. (See p. 95 footnote.) Tyabji's book in Articles 70 and 72 would show that where a marriage has been brought about negligently or dishonestly by a father, it would be voidable by the girl on attaining majority, e.g., where it has been celebrated in consideration of an insufficient dower. I have, therefore, no hesitation in accepting the rule as correct that a Shiah girl is entitled to repudiate her marriage, although contracted by her father, during her minority if the marriage be to the manifest disadvantage of her.
84. The question then is whether a marriage with a Sunni husband, where she objects to it, is to her manifest disadvantage. There can be no doubt that if it be a correct statement of law that she can question the validity of a marriage which has been celebrated in consideration of an insufficient dowar, she should be entitled to question a marriage in which she is placed in the awkward position of a wife of a person who believes in a more or less antagonistic faith. Whatever may be the justification or want of justification for it, there can be no doubt that there does exist a serious difference in respect of their faiths between a Shiah and a Sunni. It is a matter universally known, and if any authority were needed, the recent case of Manzoor Husain v. Mohammad Zaman decided by the Privy Council, supplies it. Thus, to compel a minor girl who had no voice in her marriage, to live for ever as the wife of a person professing a faith which she does not believe in and which is antagonistic to hers is certainly more to her disadvantage than mare insufficiency of debt. I am, therefore, clearly of opinion that no Court administering equity, justice and good conscience can find it possible to decree a suit for restitution of conjugal rights in the circumstances of this casa.
85. I may point out that it is a proposition of Muhammadan jurisprudence that where there are two opinions on a point of Muhammadan Law, the Court should accept only, that opinion which is in consonance with justice, equity and good conscience, (sea Preface, Vol. II, Ameer Ali's Muhammadan Law, p. 7).
86. I would, therefore, allow the appeal, set aside the decree of the Courts below and dismiss the plaintiff's suit.
87. In the circumstances of the case I would direct the parties to pay their own costs.
88. The order of the Court is that this appeal is allowed and the decrees of the Courts below are set aside; and it is hereby declared that though the marriage of the plaintiff with the defendant No. 1 was not illegal, yet she had an option of repudiation which has been duly exercised and that in consequence the marriage tie no longer subsists. The suit is accordingly dismissed with costs including in this Court fees.