Ameer Ali, J.
1. In this case the first prisoner has been convicted under Section 494 of the Indian Penal Code and the second under Section 494/114, and they have been sentenced to three months and six months rigorous imprisonment respectively. The facts of the case are shortly these:The girl Badal, when only five years old, is alleged to have been given in marriage by her mother, Atar, to the complainant. Before the girl had attained puberty, the complainant was sentenced to imprisonment for a term of four years and six months and whilst he was in jail the girl attained puberty and married the second prisoner. The Judge and assessors find that the second prisoner was aware of the first marriage with the complainant, and they have accordingly convicted the two accused as mentioned above.
2. This is not a case involving a question as to the legitimacy of a child or the validity of a marriage contracted by two adult persons where a legal union may be presumed from continued relationship or otherwise. This is a prosecution for a criminal offence, and we have to examine the evidence carefully regarding the alleged marriage of the girl to the prosecutor.
3. Now, with the exception of the statement of Joy Lal that he married the girl, and of Atar that she gave her daughter to him in marriage, and of two witnesses, who say that they were present at the time, there is no evidence to establish the fact of the first marriage. Had there been a legal marriage, a Mollah would have been present, with the necessary witnesses and vakils, to read the sigha. No Mollah has been called, nor is it suggested that any Mollah was present. There is no evidence that any of the ceremonies usual at a Mahomedan marriage in this country were ever performed. It is well known that the sigha (formula) recited at the marriage of minors is different from that recited at the marriage of adults. There is no evidence that any sigha was in fact recited on the occasion, or the akd performed, without which there can be no marriage. It is possible that the girl was betrothed to the complainant by her mother, as is frequently the case among the lower class of Mahomedans, and sometimes even among respectable people. But I am by no means satisfied that there was any valid marriage. In prosecutions for bigamy it has been invariably held by this Court that, where proof of either marriage is unsatisfactory, there ought to be no conviction. In the case of Empress v. Lutfunnissa and Ors. Unreported Case No. 3; 5th Sessions of 1887 tried on the 3rd August 1887 in the High Court before Macpherson, J., where the evidence regarding the first marriage was as unsatisfactory as in the present case, the learned Judge directed the jury to return a verdict of not guilty. In another case Wilson, J., took the same course.
4. This view is sufficient to dispose of the case; but as prosecutions of this character are not infrequent among the lower classes of Mahomedans, it may be as well to dispose of one other question. The girl is said to have been married to the complainant when a mere child by her mother. Under the Mahomedan law, when a child is given in marriage by any person other than the father or grandfather, he or she has the option of either ratifying it or repudiating it on attaining puberty (Radd-ul-muhtar, vol. II, Egypt edition, p. 500, and the Sharaya-ul-Islam, p. 309). This is called the Khyar-ul-bulugh, or option of puberty. Under the Shiah law such a marriage is of no effect and produces no legal consequences until it has been ratified by the minor upon his or her attaining majority. The Shafees agree with the Shiahs in this view. There is no evidence in this case to show to which sect the girl belongs.
5. Assuming, however, that she is a Hanafi Sunni, how would the matter stand? The only difference between the Sunni and the Shiah law on the question of option of puberty is that whereas according to the latter school a marriage contracted for a minor by a person other than the father or grandfather is wholly ineffective until it is ratified by the minor on attaining puberty, according to the (Hanafi) Sunni school it continues effective until it is cancelled by the minor. Both schools give to the minor an absolute power either to ratify or to cancel the unauthorized marriage. The (Hanafi) Sunni law presumes ratification when the girl after attaining the age of puberty has remained silent and has allowed the husband to consummate the marriage.
6. In the present case the man to whom the girl is said to have been married was in jail when she attained puberty. It was not necessary for her, therefore, to signify her assent or dissent. After attaining puberty she entered into a contract of marriage with the second accused. This is sufficient indication in my opinion that she never ratified the unauthorised marriage, which was never consummated.
7. The only question that remains to be considered is whether a judicial order was necessary to effectuate the cancellation. The Fatawa-i-Alamgiri says such an order is necessary, but the Raddul-muhtar (vol. II, p. 502) explains it by saying that a judicial declaration is not needed for imparting validity to an act which the parties have the power to do, but to provide judicial evidence in order to prevent disputes. No time, however, is limited for seeking the assistance of the Kazi--Fatawa-i-Alamgiri, I, p. 267 (Egypt edition). Besides it has been held by Mahomedan lawyers that in a claim for restitution of conjugal rights the defendant may plead the exercise of 'the right of option', and if it is established the Kazi may grant the declaration in that proceeding. It seems to me that this principle would apply equally to a proceeding like the present, where a conviction can take place only if it is found conclusively that the former marriage was still binding and effective.
8. For all those reasons, without going into the question whether the enforced absence of the alleged husband for four years, admittedly without making any provision for the wife's maintenance, justified her or not in contracting a second marriage, I think that this conviction ought to be set aside.
9. I concur with my learned colleague in setting aside the convictions in this case on the ground, first, that there is no sufficient legal evidence of the first marriage, and, secondly, that under the circumstances of this case--the girl having been betrothed in marriage by her mother before she attained puberty, that marriage having never been consummated, and the husband being in jail at the time the girl attained puberty--it was open to her to repudiate the betrothal and contract a valid marriage with another person.
10. The conviction of the appellants is accordingly set aside and they will be released.