Narayan Pillai, J.
1. The appellants are defendants 1 to 3 and the legal representatives of the fifth defendant. The suit is for declaration that the marriage conducted on 25-8-1900 between the first and second defendants is invalid. Second defendant is third defendant's daughter. Fifth and sixth defendants are brothers. Third defendant is fifth defendant's daughter. Plaintiff was her husband. After second defendant's birth plaintiff ceased to maintain the third defendant. Then she filed a suit against him for dissolution of marriage. After that plaintiff in his turn in the same year instituted a suit against her for restitution of conjugal right. In the meanwhile he contracted another marriage. He has 4 children through that alliance. After trial while the suit for restitution of conjugal right was dismissed the other suit for dissolution of marriage was allowed. The appeal filed from the decree refusing restitution of conjugal right was dismissed. It was thereafter that the present suit has been filed. By that time the second defendant had become pregnant. Both the Courts below declared the marriage to be invalid for the sole reason that the plaintiff had not given his consent to the marriage between the first and second defendants.
2. The parties are Shafis. The lower appellate Court relied upon two decisions for coming to the conclusion that father's consent was essential for the validity of the marriage. They were Hasan Kutti v. Jainabha, AIR 1928 Mad 1285 and Muhammad Ibrahim v. Gulam Ahmed, (1862) 1 Bom HCR 236 decisions of the Madras and Bombay High Courts. Of them AIR 1928 Mad 1285 was a suit by wife against husband for declaration that the marriage was invalid on the ground that she had not given her consent for the same. The marriage was declared invalid. That was because among Muslims marriage was a contract and if one of the parties had not given consent it could not be a valid marriage. The question as to whether father's consent was necessary to render the marriage valid did not arise for consideration there. In (1862) 1 Bom HCR 236 the suit was by husband for damages on the ground that the defendants were keeping away the wife and not allowing her to reside with him. Their marriage took place after the wife had come over from the Shafi to the Hanafi sect. According to the Hanafis a girl who arrives at puberty without having been given in marriage by her father is legally emancipated from guardianship and can select a husband without reference to the father's wishes. As the wife in that case had become a Hanafite before marriage it was unnecessary to consider what was the position according to the Shafites. There is an observation in the judgment there that according to the Shafi school a virgin before or after puberty cannot give herself in marriage without the consent of her father. No authority is cited there in support of that view.
S. Unlike the above two decisions the question as to whether father's consent was essential for the validity of a marriage among Shafis specifically arose for consideration in Kammu v. Ethiyumma, 1967 Ker LT 913, a decision of this Court. After citing relevant portions in Tyabji's book on Muhammadan Law; Raghavan, J. held:
'These sections make it clear that in the case of a Shafi virgin girl her father or grandfather is to act as her guardian in marriage and such authority of the guardian ceases when the girl becomes competent to contract herself in marriage. She becomes competent to contract in marriage when she attains the age of discretion, i. e. puberty. Therefore, the guardianship of the father or the grandfather must cease when the ward attains puberty.'
After referring to some passages in Saksena's book on Muslim Law the decision continues: 'As stated by Saksena, even if the girl cannot contract herself in marriage without a guardian, what she should do is only to engage a Wali, or entrust the work of giving her in marriage to a Wali, in whom she can repose confidence; such Wali need not necessarily be the kazi.'
4. The above decision of my learned brother, Raghavan, J., is supported by other authorities on the subject also. In the 1965 Edn. of the Digest of Moohummadan Law by Baillie at pp. 54-55 it is stated as follows:
'The Sheikh Ata-Ben-Humza being asked, with regard to a woman of the sect of Shafei, a virgin and adult, who had married herself to a man of the Hanifite sect, without the permission of her father, who was dissatisfied and had repudiated the marriage, whether such a marriage is valid, replied in the affirmative, and that it would have been equally valid if she had married herself to one of her own sect.
No one, not even a father or the Sultan, can lawfully contract a woman in marriage who is adult and of sound mind, without her own permission, whether she be a virgin or thuyyibah. And if any one should take upon himself to do so, the marriage is suspended on her sanction; if assented to by her it is lawful, if rejected it is null.'
5. In the fourth edition of Syed Ameer Ali's book on Mahomedan Law, Vol. II, at pages 3'43 and 344 the rules relating to marriage are given. According to the Hanafi doctrine an adult female can give herself in marriage irrespective of the question whether her father or guardian is agreeable to it or not. The learned author says that though a different rule exists in the Shafei sect there is no authentic saying of the Prophet in support of it. He concludes that on principles of decorum 'an adult virgin should entrust the negotiations of her marriage to a Wali in whom she trusts.' These passages show that although it is only proper to obtain father's consent before marriage there is no saying of the prophet justifying declaration of the marriage to be invalid merely because of omission to obtain his consent.
6. At pages 348 to 351 in the same book the following passages occur;
'If a wali refuses to give his ward in marriage, it is an act of oppression; then the sovereign or his representative, the Kazi, (Judge) would marry the minor. But not when the wali is absent on Hajj.
If the wali-ul-akrab altogether prohibits the marriage, then the Kazi would authorise the next guardian to contract a marriage for the minor.
And if a marriage has been contracted by a remoter guardian in the absence of the nearer, it will not be annulled when the latter returns, but will remain valid.
An acknowledgment of marriage between minors made by their wall or walis is not effective and will be set aside if, on attaining majority, they should deny the same. But if the wali should make the acknowledgment during their minority, and they should not say anything on coming to know of it after attaining majority, the acknowledgment would be valid.
Among the Malikis and the Shafeis the presence of the wali at a marriage is always necessary, and this condition has given birth to two different systems.
The first of these considers the wali to derive his powers entirely from the law. It consequently, insists not only on his presence at the marriage, but on his actual participation in giving the consent. According to this view, not only is a marriage contracted through a more distant wali whilst one more nearly connected is present, invalid, but the latter cannot validate a marriage contracted at the time without his consent, by according his consent subsequently.
This harsh doctrine, however, does not appear to be enforced in any community following the Maliki or Shafei tenets.
The second system is diametrically opposed to the first, and seems to have been enunciated by Sheikh Ziad as the doctrine taught by Malik.
According to this system the right of the wali, though no doubt a creation of the law, is exercised only by virtue of the power of special authorisation granted by the woman; for the woman once emancipated from the patria polest as is mistress of her Own actions. She is not only entitled to consult her own interests in matrimony, but can appoint whomsoever she chooses to represent her and protect her legitimate interests. If she thinks the nearer wali is inimically inclined towards her, she may appoint one more remote to act for her during her marriage. Under this view of the law the wali acts as an attorney on behalf of the woman, deriving all his powers from her and acting solely for her benefit.
To recapitulate:-- Under the Maliki and Shafei Law, the marriage of an adult girl is not valid unless her consent is obtained to it, but such consent must be given through a legally authorised wali, who would act as her representative. Under the Hanafi and Shiah Law, the woman can consent to her own marriage either with or without a wali.
'When a girl is adult and discreet, no one has a right to be her guardian, but it is nevertheless becoming and proper for her to authorise her father or guardian to settle the terms of the contract for her.'
7. Two different systems are referred to in the passages quoted above. In the first system the consent of the wali whether he is father or any other person is referred to as a condition precedent to the validity of the marriage. The learned author has stated that this is a harsh doctrine and that it is not in vogue in any community. As regards the second system referred to by him the wali acts only as the agent of the woman who gets married and that is the system that is prevalent.
8. Marriage among Muslims being a contract and the contracting parties being the husband and the wife the consent contemplated in the Shafei sect is that of the wife and not of the father or grandfather or any other person who acts as the wali at the time of the marriage. The person who acts as the wali only communicates the consent of the wife to the Kazi who conducts the marriage and the husband.
9. To return to the case at hand the evidence of D. W. 2 the second defendant, shows that it was after she had given her consent that the marriage was conducted. It has clearly come out in evidence that the third defendant had really approached the plaintiff through other persons for getting his consent for the marriage and that it was only to spite the second and third defendants that he had refused to give his consent for the same. In such a situation the 2nd defendant was not helpless. She could constitute any other relation or Kazi to act as her agent for communicating her consent to the marriage and that was what she did in the present case. She constituted the Kazi himself her agent for the purpose. The marriage is perfectly valid.
10. What is more, equity also is against the plaintiff. By now three children have been born to defendants 1 and 2, the eldest among them being about 8 years old. In Ameer Ali's book at page 419 it is stated thus:
'The delay of a guardian in instituting proceedings to set aside a marriage on the ground of a mesalliance does not lead to the forfeiture of his right. But after the woman as actually borne a child to her husband, the guardians have no right to have the marriage cancelled, for, adds the Sadd-ul-Mnhtar, it would damage the interests of the child; so in the Durrar.' For all these reasons this second appeal is allowed and the suit is dismissed with costs in all the three courts.