B.K. Mukherjea, J.
1. This appeal is on behalf of the plaintiff and it arises out of a suit commenced by her for a declaration that her marriage with the defendant was null and void and did not confer on the latter the rights of a husband. In the alternative, she claims that even if the marriage was not void ab initio, the nuptial tie was dissolved by her exercising the right of talak which was given to her by the Kabin-nama and under which on the happening of certain contingencies she could get herself divorced from her husband. There was also a prayer for a permanent injunction restraining the defendant from claiming restitution of conjugal rights. The material allegations upon which the plaintiff came to Court may be shortly stated as follows : The plaintiff says that she was a minor and had not attained the age of puberty at the time when she was made to go through a form of marriage with the defendant on 24th Aswin 1339 B.S. She herself purported to give consent as if she was major although her age at the time did not exceed 10 or 11 years and in the marriage register her age was falsely stated to be 15 years. In the Kabin-nama which was executed at the time of the marriage, the defendant promised inter alia that he would reside all the time in the house of his father-in-law, and in case he stayed elsewhere he would pay a sum of Rs. 7 to the plaintiff for her maintenance. The plaintiff asserts that the defendant is a man of bad character and he left his father-in-law's house in violation of the terms of the Kabin-nama in Falgun 1340 B.S. Under these circumstances she exercised the right of talak which was given to her by this Kabin-nama.
2. The defence of the husband was that the plaintiff had attained the age of puberty at the time of marriage and her age was 15 or 16 years at that time. It was said further that the father had given consent to the marriage and that the defendant did not execute any Kabin-nama. It was stated also that the terms of the Kabin-nama were illegal and opposed to public policy and hence were not binding on the parties. The trial Court decreed the suit. He held that the plaintiff had not attained the age of puberty at the time of her marriage and though the father did approve of the marriage and settle the terms of the Kabin-nama, he did not act as a guardian of the marriage and did not express consent on behalf of his daughter who purported to give consent to the marriage as a person sue juris. Under these circumstances the trial Court held that the marriage was null and void and the plaintiff was given a decree to that effect. On the second point the Munsif was of opinion that the Kabin-nama was undoubtedly executed by the defendant but that the terms were opposed to public policy and could not be enforced in a Court of law. Against this decision there was an appeal taken by the defendant to the lower Appellate Court.
3. The Subordinate Judge who heard the appeal upheld the finding of the trial Judge on the second point, but on the first point he reversed the decision of the Munsif and dismissed the plaintiff's suit. The Subordinate Judge was of opinion that the plaintiff being above the age of seven years had attained the age of discretion, though not the age of puberty, under Mahomedan law. She could, there-fore, contract a marriage which should be operative if the father or her legal guardian had consented to it. The Court found that the father had consented to the marriage even though he did not act as a guardian of the marriage for fear of being prosecuted under the Child Marriage Restraint Act. The marriage accordingly was held to be valid and the plaintiff's suit was dismissed. It is against this decision that the present second appeal has been preferred, and Mr. Abul Hussain, who appears for the appellant, has assailed the propriety of the lower Court's decision on the point that the lower Appellate Court clearly misappreciated the law in coining to this finding on the legality of the marriage. The marriage, according to Mahomedan law, is a civil contract, the object of which is to legalise sexual intercourse and the procreation of children. To quote the language of Baillie:
The pillars of marriage as of other contracts are eejab-o-kubool or declaration and acceptance. The first speech from whichever side it might proceed is the declaration and the other the acceptance. (Baillie's Digest of Mahomedan Law, Ch. 1, p. 4.)
4. This necessarily leads to the question as to who are competent to enter into this contract. On this point Mr. Ameer Ali on his work on Mahomedan Law re-produces this passage from Fatwai-Alam-Giri which has been also quoted in its entirety by Baillie in his Digest: The quotation runs thus:
Amongst the conditions which are requisite for the validity of a contract of marriage are understanding, puberty and freedom in the contracting parties with this difference whilst the first requisite is essentially necessary for the validity of the marriage as a marriage cannot be contracted by a majnun (non compos mentis) or a boy without understanding. The other two conditions are required only to give operation to the contract as the marriage contracted by a minor possessed of understanding is dependent for its operation on the consent of his guardian. (Fatwai-Alam-Giri, Vol. 1, p. 377.)
5. It is clear from this that the under-standing is the essential sine qua non of a capacity to enter into a marriage contract and even if a boy or girl has attained the age of puberty, if he or she is devoid of understanding, there could not be any valid marriage under any circumstances what-ever. In the case of a boy or a girl who has attained the age of discretion but has not attained the age of puberty, the law seems to be this that the marriage is not valid unless the legal guardian has consented to it. The question arises in this case as to whether the second requirement has been fulfilled here. The Courts below obviously have come to the conclusion that the father who was admittedly the legal guardian for the purposes of marriage had given his consent to the marriage in the sense that he approved of the bridegroom, settled the terms of the Kabin-nama and himself invited the bridegroom party to come over to his house on the day of marriage. It is a fact however which cannot be disputed that the marriage was not really contracted for the minor plaintiff by the father. In other words it was not the father who expressed consent at the time of marriage on behalf of the bride as her legal guardian. The question is whether under such circumstances there could be a valid marriage under the Mahomedan law. It seems to me that if under the Mahomedan law the minor who has not attained the age of puberty lacks the legal capacity to enter into a contract on her own behalf, the father or the guardian ought to act on behalf of or as representative of the girl, so that his consent may be really the consent expressed op behalf of the bride and in a case like this, where the contract was really between the plaintiff and the defendant and not between the father of the plaintiff as representing her, it may seem at first sight that there was no offer or acceptance, no declaration and consent which the Mahomedan law lays down as essential requirements to constitute a valid marriage. Mr. Bose, who appears for the respondent, has however drawn my attention to certain passages in Ameer Ali's book, which lead me to suppose that the proposition cannot be stated as broadly as that. In the first place the passage in Fatwai-Alam-Giri, quoted at p. 275 of Ameer Ali's Book, Vol. 2, Edn. 5, runs as follows:
It is otherwise however in the case of a marriage contracted by a Sarir. 'It is valid', says the Fatwai-Alam-Giri, 'though dependent for its operation on the consent of the guardian.
6. Then again it is said in Section 5 which deals with guardianship for the purposes of marriage that when a minor girl, who has no relation that can stand in the situation of a wali, contracts herself in marriage and there is no Kazi from whom sanction may be obtained, the marriage is not void but will take effect on her attaining the majority and ratifying the contract. From these passages it seems to be clear that it is not that the minor child under such circumstances, provided she has attained the age of discretion, lacks the legal personality which alone would entitle her to enter into a valid contract; that the contract is really a contract on her part, but she being below the age of puberty the consent of the guardian or the father is necessary for the purpose of supplying the deficiency in the intellect of the child and for ensuring that the act was one which was conducive to her interest. If this is the legal position, then the act of entering into that contract of marriage must be deemed to be the act on the part of the child, provided she has attained the years of understanding, but the consent of the father would be a condition precedent to make the act valid and binding on her as otherwise it would be presumed to be one which is not beneficial to her interest, In this particular case the position obviously is this and this is inferrable from the facts found by both the Courts below that the whole thing was done with the consent of the father, though the father being afraid of the penalties under the Child Marriage Restraint Act did not appear as the guardian of the daughter at the time of the marriage.
7. I think therefore that it cannot be said under these circumstances that the marriage was a nullity out and out. The legal position would be that the marriage was contracted not by the father on behalf of the plaintiff and the father also did not act as guardian of the marriage. She herself entered into that contract but with her father's assent, and in a case like this obviously she can exercise what is called the option of puberty provided no circumstance is present which would disentitle her to the exercise of this right. This question however was not mooted for decision in any of the Courts below, although there is much in the evidence upon which a case of repudiation of the marriage on attaining puberty could be attempted to be made out. I think in the interests of justice and to avoid a further litigation, the plaintiff should be allowed an opportunity to make an alternative case, that on attaining puberty she has exercised the option of repudiation under the Mahomedan law.
8. I therefore affirm the finding of the lower Appellate Court that the marriage is not void ab initio and that there was no right of talak validly given to the wife under the Kabinnama by which she could get herself divorced from her husband, but that she was entitled to show that the marriage not being contracted on her behalf by her father, there was an option of repudiation in her on her attaining puberty and the case should be sent back to the trial Court in order to give her an opportunity to make out this case. The case therefore is sent back to the trial Court in order go enable her to amend the plaint by introducing a claim based on her right to repudiate the marriage on attaining puberty, if she is so advised, and the defendant being given an opportunity to put in any additional written statement, the trial Court will decide the point either on the evidence already adduced or such other additional evidence as both parties might think fit to offer. On considering the entire evidence the trial Court will come to a conclusion as to whether or not the plaintiff is entitled to a declaration that the marriage has been repudiated by exercise of her option of repudiation on attaining puberty. As this is really an indulgence given to the plaintiff, although she did not make a specific point in the plaint, I think the plaintiff-appellant will be bound to pay to the defendant-respondent costs of this appeal, hearing-fee being assessed at two gold mohurs. Costs of the Court of Appeal below would stand. Further costs of the trial Court will abide the result.