1. This appeal arises out of a suit brought by the plaintiff for restitution of conjugal rights, The Subordinate Judge dismissed the suit and the plaintiff appeals.
2. The suit was instituted on the 16th of March 1908. The plaintiff made defendant to the suit Musammat Atkia Bagam, his alleged wife, under the guardianship of her uncle Abdul Jalil Khan ; and he also made co-defendant the said Abdul Jalil Khan who had possession of the girl.
3. It is necessary to state the history of the girl and her relations at some little length. Musammat Najm-un-nissa alias Arousa Begam (we shall hereinafter refer to her as Arousa Begam) was a lady of respectable parentage, claiming descent from the Rulers of Cabul. She had a daughter named Maimuna Begam who was the mother of Atkia Begam, the alleged wife of the plaintiff. Haji Abdul Jamil Kkan was a brother of the defendant Abdul Jalil Khan, and at one time was a karinda of Arousa Begam. Without saying anything derogatory of the family, to which Abdul Jamil Khan and Abdul Jalil Khan belonged, there can be no doubt that it was to some exten inferior to the family of Musammat Arousa Begam both in respect of origin and wealth. Abdul Jamil Khan married Maimuna Begam. It is suggested and probably truly suggested that Arousa Begam married her daughter Maimuna Begam to Abdul Jamil Khan so that her daughter might continue to live with her. However this may be, the fact remains that Maimuna Begam and her husband Abdul Jamil Khan continued to live with Arousa Begam up to the time of their death. There are living issues of the marriage, a boy and a girl besides Atkia Begam, the alleged wife of the plaintiff.
4. The entire evidence in the case strongly suggests that the relations which existed between Arousa Begam and her daughter Maimuna Begam and her son-in-law Abdul Jamil Khan and their children were of the most affectionate nature. For a number of years prior to the alleged marriage, the whole party had been residing at Mecca. Arousa Begam had made a deed of gift of her property, which was very considerable, in favour of her daughter Maimuna Begam.
5. It is now convenient to say a few words about the plaintiff. He is the son of one Mulla Nawab and also residing at Mecca. His mother was an own sister of Arousa Begam, and their place of residence was quite close to the place where Arousa Begam, Abdul Jamil Khan, and his wife and children were residing at Mecca. Mulla Nawab was a man reputed for his learning, and holding a small pension from the Sultan of Turkey. The plaintiff was a young man, aged about 19 years at the date of the alleged marriage. He appears to have been a well conducted young man who knew the Koran by heart, and had some small post as a teacher. The plaintiff's family on the father's side seems to have been a highly respectable family but not possessed of much wealth. On the mother's side, he, of course, also claimed descent from the Rulers of Cabul. The plaintiff on cross-examination admitted that he had been in jail on a charge of theft but this was a charge made by the defendant after these disputes had commenced.
6. The plaintiff alleges that the marriage took place on the 20th of July 1907 at Mecca, that at that time Musammat Atkia Begam had reached puberty and that she herself consented to the marriage, that after the marriage they lived together at Mecca as husband and wife until the girl was taken out of the custody of himself and her grandmother by the defendant Abdul Jalil Khan on the strength of a certificate of guardianship granted here.
7. The case put forward by Abdul Jalil Khan, as guardian of Atkia Begam and on his own behalf, is first, that no marriage of any kind ever took place and, secondly, that even if a marriage was performed, Atkia Begam had not reached puberty, and that accordingly no valid marriage could be contracted without his consent as the guardian of the girl under the Muhammadan Law.
8. It appears that about two months before the alleged marriage, Musammat Maimuna died and Abdul Jamil Khan died four days before its alleged celebration. There can be no doubt, therefore, that unless Musammat Atkia Begam was adult at the time of the alleged marriage, the marriage was void even if the ceremony was performed. There is no evidence that Arousa Begam performed the ceremony as the next guardian of the girl in the absence of the real guardian, Abdul Jalil Khan, her paternal uncle. The evidence is that the girl gave her formal consent as an adult girl, though, of course, it was the grandmother who arranged the marriage. A great deal of stress has been laid by the respondents upon the fact that the alleged marriage took place four days after the death of Abdul Jamil Khan. It was alleged that if anything of the kind was done, it was very improper. The explanation given by Arousa Begam is that it was the wish of both the father and the mother of the girl that a marriage should take place between their daughter and the plaintiff, and that she only carried out what was the wish of her son-in-law and daughter as well as her own. We think that it is not at all impossible that Arousa Begam may have anticipated opposition on the part of Abdul Jalil Khan and have thought that he would very likely, if he had the opportunity, insist upon giving the girl in marriage to his own son and thereby keep the fortune of the girl in his own family. It certainly looks as if Musammat Arousa Begam was anxious to have the marriage between the plaintiff and her granddaughter brought about as soon as possible. In considering this part of the case, it is only fair to remember that in all probability there was no living person who had Musammat Atkia Begam's happiness and welfare more at heart than Musammat Arousa Begam. Far the greater part of the wealth possessed by the girl had come from Arousa Begam herself originally. The girl had been brought up from her infancy in the house in which Musammat Arousa Begam lived, and it is unlikely to the last degree that she would have sacrificed the girl's interest by bringing about an inappropriate marriage. Furthermore, it seems to us quite clear that the plaintiff was by no means an unsuitable husband for the girl. He was poor no doubt but his family were certainly as good, if not better, than the family of Abdul Jalil Khan. There were many reasons also why it might have been desirable to have the girl suitably married. The grandmother was advanced in years and her parents were both dead.
9. The fact that a marriage was performed at Mecca is proved by overwhelming evidence. A large amount of evidence was taken at Mecca, and the learned Subordinate Judge was struck (as were we) by the straightforward and independent way a number of these witnesses gave their evidence. The learned Subordinate Judge has found as a fact that a marriage was performed at Mecca as alleged by the plaintiff. We entirely concur in this finding, and we think it impossible that a Court could arrive at any other conclusion. Objections have been filed by the respondents as to this finding by the Subordinate Judge but they were hardly pressed before us by the learned Counsel for the respondents. The learned Subordinate Judge has, however, found that the girl had not reached the age of puberty, and that, therefore, the marriage was illegal, and it is on this ground mainly that he dismissed the plaintiff's suit.
10. Here it becomes convenient to say a few words as to what happened after the death of the girl's parents and the performance of the marriage. As soon as the news of death of Abdul Jamil Khan reached his brother, the latter made, an application to be appointed guardian of the children. This application was made in India. Abdul Jalil Khan alleged, amongst other things, that there was a considerable amount of jewellery which belonged to the children and a commission was issued to the Consul at Mecca to ascertain the pariculars of this jewellery. This was done, but shortly afterwards the jewellery disappeared. Meanwhile, Abdul Jalil Khan had arrived at Mecca. Here he charged Arousa Begam and the plaintiff with stealing the jewellery and they all were thrown into prison. Arousa Begam was first released and she came to India with the children who were taker from her by Abdul Jalil Khan claiming under the certificate and to be their guardian under the Muhammadan Law. A suit was then brought against Musammat Arousa Begam for the jewellery. Her defence was that the jewellery was stolen at Mecca and that the fact that it was stolen was due to the publicity of its existence caused by the steps which Abdul Jalil Khan had taken. These proceedings are not further material to the present case and we need say nothing more than that after some litigation this Court accepted the explanation given by Arousa Begam that the jewellery had been stolen at Mecca.
11. It will be seen from what we have said that the real issue in the case was whether or not Atkia Begam was adult at the time of the marriage which we, in concurrence with the Court below, find to have taken place. Of course, incidentally we shall have to inquire as to the approximate age of the girl. The younger she was the more improbable the case for the plaintiff. The probability or imporbality of the plaintiff's case will depend upon the approximate age of the girl. If it could be shown that she was 15 years of age at the time of the marriage, a presumption of puberty would arise; while if she was not 15 years of age or upwards, the onus will lie upon the plaintiff of showing that she had arrived at the age of puberty.
12. After discussing the evidence of both sides at length; their Lordships concluded as follows:
13. The result of our consideration of the case is, therefore, that we agree with the learned Subordinate Judge in holding that the marriage of Atkia Begam was performed at Mecca in July 1907 but differing from hint we hold that the girl Atkia Begam had reached puberty at the time of her marriage. On this finding, the plaintiff is clearly entitled to a decree for restitution of conjugal rights.
14. We accordingly decree the plaintiff's claim for restitution of conjugal rights but grant no injunction as Abdul Jalil Khan is now dead. We direct that the plaintiff do have his costs in both Courts against the estate of Abdul Jalil Khan and against Atkia Begam, but we direct that such costs shall be primarily payable out of the estate of Abdul Jalil Khan. We also disallow the objections filed by the defendants with costs to be paid in the same manner as the other Costs. The costs in this Court will include fees on the higher scale.
15. We direct that a copy of this judgment be sent as soon as possible to the Collector of Bulandshahr.