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Nur Kadir Vs. Zuleikha Bibi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1885)ILR11Cal649
AppellantNur Kadir
RespondentZuleikha Bibi
Excerpt:
mahomedan law - hizanut--the custody of female minors before puberty--mother's right. - .....j.1. this was a suit brought by the appellant, a mahomedan, for the recovery of possession of his minor wife, mehr-un-nissa. it is not disputed that defendant no. 2, masraf ali, and defendant no. 3, asraf ali, are agnates of the same degree with mehr-un-nissa's father. the minor girl, it is also admitted, is living with her mother zuleikha bibi, defendant no. 5.2. the plaintiff's case is, that asmat ali gave mehr-un-nissa in marriage to him, and promised to send her to the plaintiff's house in the month of jeyt following the marriage. according to this arrangement mehr-un-nissa not having been sent to the plaintiff's house, the plaintiff has brought the present suit.3. on behalf of the defendants, both the factum and the validity of the marriage were denied.4. the munsiff dismissed the.....
Judgment:

Richard Garth, C.J. and Mitter, J.

1. This was a suit brought by the appellant, a Mahomedan, for the recovery of possession of his minor wife, Mehr-un-nissa. It is not disputed that defendant No. 2, Masraf Ali, and defendant No. 3, Asraf Ali, are agnates of the same degree with Mehr-un-nissa's father. The minor girl, it is also admitted, is living with her mother Zuleikha Bibi, defendant No. 5.

2. The plaintiff's case is, that Asmat Ali gave Mehr-un-nissa in marriage to him, and promised to send her to the plaintiff's house in the month of Jeyt following the marriage. According to this arrangement Mehr-un-nissa not having been sent to the plaintiff's house, the plaintiff has brought the present suit.

3. On behalf of the defendants, both the factum and the validity of the marriage were denied.

4. The Munsiff dismissed the suit, upon two grounds, viz. (1) that the marriage was not established; and (2) that even if it took place, Mehr-un-nissa, according to the Mahomedan law, being quite at liberty to cancel it on her attaining puberty, the alleged husband was not entitled to the custody of his minor wife until that period had arrived.

5. The Munsiffs judgment was set aside by the Subordinate Judge, who came to the conclusion that the marriage upon the evidence was established. As regards the second ground, upon which the Munsiff's judgment was based, he says that, until the marriage was actually cancelled, the plaintiff was entitled to the custody of his minor wife. It may be noticed here that there was no appeal against the finding of the Munsiff, that Mehr-un-nissa had not yet attained the age of puberty. The Subordinate Judge therefore did not, and could not, with propriety have come to a different conclusion upon that point.

6. Accepting then the facts found by the lower Courts, as correct, (as we are bound to do in second appeal) the questidn of law that arises is, whether the Subordinate Judge is right, according to the Mahomedan law, in removing the minor wife from the custody of her mother, and decreeing the plaintiff the possession of her person. In other words the question for decision is, whether, according to the Mahomedan law, the husband or the mother is entitled to the custody of the minor wife, before she attains the age of puberty. This question was considered in an elaborate judgment of Mr. Justioe Norman, in the matter of Khatija Bibi 5 B.L.R. 557. After reviewing the authorities before him, the learned Judge came to the conclusion that, according to the Mahomedan law, the effect of the contract of marriage is to place the wife under the dominion of the husband, but that notwithstanding her marriage, the right to the care and custody of a girl belongs not to the husband, but to her mother, until she attains the age of puberty. At page 435 in Bailie's Mahomedan Law, with reference to the question of hizanut or custody of a girl, it is laid down that 'so long as a girl who is married has no desire, her mother's right to her custody does not cease, till she is fit for matrimonial intercourse.' In reversing the judgment of the Subordinate Judge the learned Judge of this Court has taken the same view of the law. The appeal will therefore be dismissed with costs.


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