1. This appeal arises out of a suit for restitution of conjugal rights. The defendants are the wife and her father, and the plaintiff, the husband, has obtained a decree in both the lower Courts. The defend ants denied that any marriage had been celebrated and further pleaded that even if such a celebration had been performed, the marriage was invalid because the consent was given by her father, although his daughter bad attained puberty and was con sequently competent to give her own consent. As regards the question whether the alleged marriage was performed, the finding of the lower Courts, which is in plaintiff's favour on this point, is conclusive. As regards the competency of the female defendant to give consent to her own marriage, the finding of the lower Appellate Court is that the actual date of the attainment of puberty had still to be ascertained, but that the age of the girl at the time of her marriage was 14 years and 9 months. That Court has held on this finding that as the girl did not attain 15 years of age, the presumption of puberty did not arise, and, therefore, she must be held to be a minor.
2. On behalf of the appellants, it is contended that the lower Appellate Court has misunderstood the presumption of Muhammadan Law; that although there is a presumption that a girl who has attained the age of 15 years has also attained puberty, there is no converse presumption that the girl who has not reached that age has not attained puberty. This is a correct statement, but we do not find in the judgment of the lower Appellate Court that it has drawn the converse presumption. What appeared to have been the course of proceeding in the two lower Courts was that in defence it was pleaded that the age of the girl was 18 years and that there was no doubt of her power to consent. It does not seem to have been ever pleaded that she is entitled to rely on the physical fact of puberty, if her age was less than 15 years. Defendants relied entirely on the legal presumption to prove puberty and made no attempts to prove it by any other evidence. The fact of puberty obviously was a fact within the special knowledge of the first defendant and the burden of proving that fact lay on her. It is conceded that there is no evidence whatever to discharge that onus. It was argued that the statement of a Muhammadan female that she had attained puberty must, under the Muhammadan Law, be accepted. Assuming for the consideration of this argument that this is a correct statement of Muhammadan Law, it cannot help the defendants in this case, because there is no statement on the record of the actual fact of puberty having been attained. Our attention has been drawn to some statements in the written statements filed by the father and the daughter. But in none of them is there any statement which really goes further than the allegation that the daughter had reached the age at which she would be competent to give her consent, We are asked to remand the case to the lower Appellate Court for a finding on the fact of puberty. As no evidence has been given and as this special plea of puberty was not taken in either of the lower Courts, the appellants are not entitled to a remand at this stage of the case.
3. The appeal, therefore, fails and is dismissed with costs.