1. This appeal arises out of a suit for restitution of conjugal rights. The respondent No. 1 was the plaintiff in the Court of first instance and the defendants were three; the defendant No. 1 Musammat Zaitun was the alleged wife, the defendant No. 2 her paternal uncle and the defendant No. 3 her paternal grandfather. The father of the girl is dead. The plaintiffs case was that he married the girl on the 21st of September 1918, and went away to Calcutta. On coming back, he wanted that his wife should come and live with him but her uncle and grandfather prevented her from coming to him.
2. The uncle of the girl did not enter appearance. The defendant No. 1 was described in the plaint as a major and her age was given as 19 years. It was objected to on he behalf that, she was a minor and thereupon, the plaintiff obtained the appointment of her grandfather as her guardian for this suit. Two written statements were filed, one on behalf of the defendant No. 1 and the other on behalf of her grandfather. In both the written statements it was denied that there was any marriage and it was further stated that the plaintiff was in collusion with the girl's uncle who wanted that the girl should marry the plaintiff. The Court of first instance dismissed the suit holding that the marriage had not been proved.
3. There was an appeal and it was heard by the learned Subordinate Judge of Jaunpur. It appears that evidence was led on behalf of the plaintiff to show that, the girl also had consented to the marriage, besides evidence showing that the marriage had taken place with the consent of her grandfather. The learned Subordinate Judge remarked that, in most cases, the taking of consent was really a matter of form and this formality had been gone through, whether or not the consent was required under the law. He further found that the girl was of 12 years of age at the time of the marriage and that, the marriage had been performed with the consent of her grandfather. He also found that the story of the girl having consented to the marriage was not established.
4. In this Court only one plea has been urged and it is the Under the Shia Law a girl is supposed to have attained puberty or majority for the purpose of marriage, at the age of 9 and that, therefore, as the finding of the Court below was that the girl did not consent to the marriage and she was 12, the marriage was invalid. On the question as to what is the Shia Law on the point, two authorities have been relied upon, namely, Baiilie's Digest, Volume II, page 196 and Tyabji's Muhammadan Law, 2nd edition, page 99.
5. On behalf of the respondent it has been urged that, according to the written statements of the defendants No. 1 and her grandfather she was only 10 at the date of the filing of the written statements and that, therefore, she must have been below 9 at the date of the marriage. Reliance has also been placed on the evidence of the Assistant Surgeon who examined the girl and stated that she was 12 in March 1922. That gentleman, it appears, also said, that the signs of puberty were just coming out. The learned Counsel for the respondent relies on the statement of law to be found in Amir Ali's Muham-madan Law page 323, 4th edition, Volume II. There, it is stated that, both among the Hanafis and Shias alike, the girls attain majority on the completion of 15th year, unless there is any evidence to show that puberty has been attained earlier.
6. It appears to me that, it is not necessary for me to deicide which of the two kinds of opinion is the more authoritative on the point. It appears to me that the rule relates to presumption and nothing more. All authorities are agreed that it is really the appearance of signs of puberty that is the determining factor and, in the absence of evidence to the contrary, the presumption of law has to be given effect to. In Baiilie's Digest the footnote says ' Puberty is established by natural signs, which it is unnecessary to mention, or by age, which is fifteen years in males, and nine in females.' As I have said, the determining factor is puberty and in the absence of evidence, the age has to be considered. The Assistant Surgeon found in 1922 that, the signs of puberty were just appearing. This would clearly mean that three years earlier the girl had not attained puberty. This is something which is very definite and can be acted upon. There is no finding by the learned Subordinate Jud e that, the girl had or not attained puberty. It is open to me to come to a conclusion on the point, on evidence, under Section 103 of the Code of Civil Procedure. When you have got a solid fact no question of presumption arises. It follows that Musammat Zaitam had not attained puberty when she was married and, therefore, the question of her consent was mmaterial.
7. I hold that the marriage is valid according to Shia Law. The appeal, therefore, fails and is hereby dismissed with costs which will include Counsel's fee on the higher scale.