B.K. Mukherjea, J.
1. This is an appeal on behalf of the plaintiff husband and is directed against a decree of dismissal in a suit for restitution of conjugal rights. The plaintiff's case is that he was married to defendant 1 in due form as prescribed by Mahomedan law on 14th February 1926. He lived with her as husband and wife in the house of the wife's mother for a period of ten years after marriage. Subsequently he set up a house of his own and when he went to bring his wife to his place some time in Chaitra, 1342 B.S., he was obstructed in so doing by defendant 2 and also by other defendants who are her relations. The plaintiff thereupon commenced his present suit and he prayed for restitution of conjugal rights as well as for a permanent injunction restraining the defendants other than the wife from interfering with the wife's discharge of her marital duties. The suit was resisted by the wife alone whose defence was that he was never married to the wife and if there was any marriage it was repudiated by her on attaining puberty.
2. The trial Court held on the evidence that there was a ceremony of marriage gone through between the parties on 14th February 1926, but defendant 1 was a minor at that time and she was contracted in marriage by her maternal uncle Daulat Haji who could not be a proper guardian for purposes of marriage according to the Mahomedan law. The Munsif accordingly held that the marriage was void ab initio and dismissed the plaintiff's suit. His decision was affirmed by the Additional District Judge of Tipperah on appeal.
3. Mr. Chuckerbutty who appears on behalf of the plaintiff-appellant has raised two points before me in support of the appeal. In the first place he has argued that assuming that defendant 1 was a minor and was given in marriage by the maternal uncle Daulat Haji who was a remoter guardian according to the Mahomedan law, yet the marriage was validated by reason of the fact that Karimuddin, the paternal uncle of the girl who was the rightful guardian at that time, was actually present during the ceremony and gave his express consent to it. His second point is that in any view of the case the marriage was voidable and not void and all that the wife could do was to repudiate the marriage on attaining puberty. This right it is urged has now been lost as on the evidence in the record the marriage was consummated.
4. Now, as regards the first point, the rule of Mahomedan law undoubtedly is that when a guardian more remote marries a boy or girl when the nearer one is present the validity of the marriage is dependent upon the latter's ratification and consent : vide Bailee's Digest of Mahomedan Law p. 49. The contention however does not seem to me to assist the plaintiff in the present case. There is no convincing evidence, in my opinion, to show that Karimuddin who was the legal guardian expressly ratified the marriage. The plaintiff no doubt says that Karim was present all along with other people at the time of the marriage and agreed to it; but he says at the same time that the wife was a major and herself gave her consent. The last part of the story has been disbelieved by both the Courts below and in the absence of any corroborative evidence, I am unable to believe the earlier part. Plaintiff's witness 2 speaks of the presence of Karimuddin at the majlis, but he does not say that Karimuddin actually gave his consent. All the other witnesses who were examined for the plaintiff speak of the girl being a major at the time and giving consent herself and none of them says that there was any guardian acting on her behalf in the marriage ceremonies. Karimuddin is admittedly dead and Daulat who according to the kabinnama acted a& the guardian has not been examined by either side. It appears further to me that the rule of Mahomedan law laid down above contemplates a case where the boy or girl is given in marriage by a person who in order of priority comes immediately after the proper guardian at that time. In fact, the consent of the nearer guardian may have the effect of transferring the authority to the remoter guardian and exactly the same thing happens when the nearer guardian resides at a distance and no communication is possible with him. This rule cannot apply, in my opinion, to a case, where as between the nearer guardian and the one who actually disposes of the minor in marriage, there are other relations who have preferential rights of guardianship. In the present case, Daulat Hazi does not come immediately after Karimuddin and the mother has certainly precedence over him. I do not believe that the mother was present at the time of the marriage and gave her consent. Under these circumstances, the first point raised by Mr. Chuckerbutty must fail.
5. The next point for consideration is as to what the legal consequences would be when a marriage is contracted on behalf of a minor by a remoter guardian when the nearer guardian is present and has not given his consent. Mr. Chuckerbutty argues that such marriages are invalid and not void and the only consequence would be to allow the party an opportunity to repudiate the marriage when he or she attains majority. There is undoubtedly such a thing as an invalid marriage in Mahomedan law as distinguished from a void marriage. Bailee in his book has devoted one chapter to the discussion of this topic. But the learned author has nowhere formulated the test for distinguishing an invalid marriage from a void marriage nor has he given an exhaustive list of invalid marriages. The instances cited by him relate to cases where no witnesses are present at the time of the marriage or when the marriage is one with the various kinds of moohirim or prohibited women. A marriage, according to Mahomedan law is a contract pure and simple, and understanding and puberty on the part of the contracting parties are essential. If a girl has not attained puberty and the person who contracted on her behalf has no legal authority to do so, according to Mahomedan law, I am inclined to think that one of the essential conditions of a legal marriage is wanting and the marriage must be regarded as void abinitio. Mr. Chuckerbutty has referred me in support of his argument to two passages in Yusoof Khan's Tagore Lectures on Mahomedan law of Marriage and Divorce, and a decision of the Lahore High Court reported in Muhammad Sharif v. Khuda Baksh (1936) 23 A.I.R. Lah 683. The first passage in the Tagore lectures upon which reliance has been placed reads as follows:
And if she (a virgin) has been given in marriage by a distant guardian (that is, when a nearer guardian is present) and she comes to know of the marriage, and keeps quiet, then her silence will not amount to consent, when the near guardian Is not absent in a way so that his absence might be called 'Ghybut Moonkutaia...(Vol. II, page 54).
6. It appears from the context that the author was discussing here the circumstances under which the silence of a woman (not necessarily a minor) might amount to consent and in his opinion if the nearer guardian was present and the girl was given away in marriage by a remoter guardian, the silence of the girl would not amount to consent. If this rule is applied, we have got to hold that the silence of the girl, if any, in the present case would not amount to consent as Karimuddin the near guardian was not absent and communication with him was not impossible. This passage however nowhere says that when a remoter guardian contracts a girl in marriage in the presence of the nearer one, the marriage is invalid and not void. The other passage referred to by Mr. Chuckerbutty occurs at page 57 of the same volume and runs as follows:
If a minor boy or girl should marry himself or herself without the permission of the guardian, and then they attain majority, the marriage contracted by them is not valid unless they ratify the same after attaining majority.
7. This passage would seem to suggest that express ratification of the parties after they had attained majority is essential for the purpose of validating the marriage which was contracted by the minors themselves without the permission of the guardian. This cannot certainly assist Mr. Chuckerbutty's client in the present case as it is nobody's case that there was express ratification by the girl after she attained majority. The decision in the Lahore case Muhammad Sharif v. Khuda Baksh (1936) 23 A.I.R. Lah. 683 mentioned above undoubtedly lends some support to Mr. Chuckerbutty's contention. There however the point was not expressly decided but rather conceded by both parties and the learned Judge was of opinion that when a minor girl was given in marriage by a remoter guardian in the presence of a nearer one, it is not void but only invalid in the sense that the girl was at liberty to exercise her option of repudiation after attaining majority. No reasons are given in the judgment and no authority is cited. I regret I cannot accept this as an authority binding upon me and laying down a proposition of law that in a case like this when the girl was a minor and was given in marriage by a person who was not competent to act as guardian under the Mahomedan law, the marriage is only invalid and not void. Even if I assume that the marriage was invalid and not void, the legal-consequences would be that it could be terminated by a single declaration on either side. As Bailee lays down in his treatise on Mahomedan law:
When an invalid marriage has taken place it is the duty of the Judge to separate the parties, and if the wife be unenjoyed she has no claim to dower, but otherwise she is entitled to whichever may be the less of her proper dower, and the dower specified... (vide Digest, p. 156).
8. This shows clearly that consummation of marriage does not stand in the way of terminating it when the marriage is invalid according to Mahomedan law and the woman would be entitled to dower only when the marriage is consummated and not otherwise. It is not however necessary for me to pursue the matter further as, in my opinion, the marriage here was void and not voidable. The result therefore is that I affirm the decision of the Courts below and dismiss this appeal. There will be no order as to costs in this appeal.