1. The appellants are the second and third defendants. The suit has some remarkable features, which are evident on a perusal of the judgments of the lower Courts, but the feature which principally attracts attention, though perhaps it ought not to be styled remarkable in a country which is notorious for the protraction of litigation, is that the suit, which is virtually one for restitution of conjugal rights and, therefore, essentially one for speedy disposal, has lasted for 6 years, and the practical effect of this is that though the person principally interested, the alleged wife, was a mere child of 7 at its inception, she has now reached an age when she will be in a position, if indeed she has not already attained it, either at once or in the near future, to nullify, if she so chooses, any findings of the Courts as to the fact of her marriage and consequent directions based thereon by exercising her right of repudiation under the Muhammadan Law.
2. The plaintiff is the first cousin of the girl, who is the defendant No. 1, the second defendant is the uncle of both and the father of the third defendant. The girl's father is dead and her mother has disappeared. Her guardian ad litem was one Johuruddi, a brother of the second defendant, of the girl's father and of the plaintiff's mother.
3. The suit was described in the plaint as one for possession on declaration of be plaintiff's right over his wife. It was alleged in the plaint that though the first defendant had married the plaintiff, the second defendant, in collusion with six others, had got her married again to the third defendant and confined her in his house. It was asserted that the plaintiff was entitled to possession according to law and in the prayer clause the plaintiff asked for a declaration that the first defendant was his wife and for possession of her, and for any other proper relief. The Munsif gave the declaration asked for and directed the other defendants not to put any obstruction in the way of defendant No. 1 coming to the plaintiff. He added: 'the plaintiff will get defendant No. 1 as his wife.' This order was re produced in the decree, and an appeal to the District Judge was dismissed without variation of the decree.
4. One of the grounds taken in the memorandum of appeal to this Court was that the Munsif had no jurisdiction to entertain the suit. The appellant Pleader, however, conceded that he could not argue that ground in view of some of the decisions of this Court regarding the competence of Courts to try suits for the restitution of conjugal rights. The points urged were (1) that a suit for the possession of a wife is not maintainable, (2) that the first defendant was not properly represented, (3) that as there was a question of the validity of the marriage, it was necessary FOR the Court to find what were the essential ceremonies of a valid marriage and whether those ceremonies had taken place, which the Court had not done, (4) that the Vakil who acted for the first defendant at the alleged marriage, being a minor, was incompetent to act and, there fore, the marriage was invalid.
5. The first point taken involves an accurate statement of the law, viz., that a suit: for the possession of a wife is not maintainable. Bat that is not enough to justify dismissal of the suit which, as I have already remarked, is in substance one for restitution of conjugal rights. It was open to the Courts to give the plaintiff a declaration that the first defendant was his wife and it was also open to them to direct the other defendants not to obstruct HER returning to her husband. But it was not open to them to decree the husband possession of his wife. The decree should have directed her to return to her husband. There was some discussion in this Court as to whether a decree for restitution of conjugal rights can he made in the case of a wife who is a mere child as, obviously, a child of 7 is not capable of performing all the duties of a wife. Having regard to the time that has elapsed since the suit was instituted, the question has not now. the same importance as it might have had 6 years ago. But, in any case, the husband is the guardian of the wife and as such he would be entitled to the order, subject to any provisions which the Court might make for the protection of the wife: Kateeram Dokanee v. Musammat Gendhenee 23 W.B. 178. To make the decree conformable with law it would, therefor, be necessary, in any event, to vary the decree of the lower Court, though the point taken is one which does not interest the present appellants. The interest of the third defendant arises by reason of the fact that he is alleged to have married the first defendant, but that interest is no longer maintainable in view of the finding that the first defendant had previously been married to the plaintiff.
6. The second point, viz., that the first defendant was not properly represented is one which does not concern the present appellants and, consequently, does not affect their position in any way. But it raises a question of very great importance to the minor, and if it appears on examination that the minor has not been properly represented, it is obviously impossible to allow the decree against the minor to stand, even though there has been no appeal by the minor which, in the absence of proper representation, it was obviously impossible for her to present. It is the duty of the Court to appoint a proper person to be the guardian ad litem. The person appointed in this case was Johuruddi, the girl's uncle, who was prima facie the proper person to appoint in the absence of the minor's parents. It was alleged in the written statement that the suit had been brought on account of the quarrel between Johuruddi and the second defendant regarding the possession of the minor's land by Johuruddi. The fitness of Johuruddi to be guardian was made the subject of the fifth issue in the Munsif's Court, and the Munsif appears to have considered that his fitness was established by the fact of his being the girl's uncle. It is quite possible that the allegation in the written statement was made because Johuruddi was supporting a case which the Courts have found to be true, viz., that the first defendant was married to the plaintiff. But the learned Judge on appeal has found facts which show that Johuruddi was not a disinterested party. He says: 'it may be taken almost as an axiom in these cases that the girl's property is really what the parties want and the present suit is no exception. Her father died in 1312 and her uncle Erfanuddin (i.e.,third defendant) and Johuruddi want the property.' Then, after discussing the question of possession of the land, he finds that Johuruddi'a evidence abaut the girl and her mother having lived with him is untrue, as also was the counter-allegation of their having lived with Erfanuddin. The Judge is clearly of opinion that Johuruddi was playing, only for his own hand, and in that view it cannot be said that his interest was not adverse to that of the minor, within the meaning of Order XXXII, Rule 4. That being so, the minor has not been properly represented. The view might be taken that the learned Munsif, in appointing Johuruddi as guardian ad litem, did so as he was prima facie the proper person to appoint in the absence of anything to show that he was disqualified from acting as guardian, provided that the appointment was made after proper enquiry and proper notice. I have refarred to the original record to see what was done in the matter. The application to make Johuruddi guardian ad litem was made with the plaint. There is no trace of any order on the application itself or in the order-sheet. There is nothing to show that the Munsif evar applied his mini then to the question of the appointment of a guardian ad litem, or that he did in fact make any appointment. So far as can be gathered from the record, the appointment was taken as a matter of course.
7. That being the case, and the learned District Judge having found facts which show that the minor was not properly represented, the decree as against the minor must be set aside. The respondent has rot been taken by surprise as the want of representation was made a ground of appeal, though not a good ground of appeal in the case of the present appellants, and respondent's Pleader did argue the point.
8. There is no substance in the third ground urged. It was urged on the authority of the case of Surjyamoni Dosi v. Kali Kanta Das (5) that the Court was bound to find what rites and ceremonies were essential to a marriage and whether those had been duly performed. Now, in that case, the rites and ceremonies necessary to a marriage of Hindus of a certain caste were in question. The present is a case of a Muhammadan marriage. For that, all that is necessary is proposal and acceptance in the presence of witnesses. The learned Judge says the necessary ceremonies were proved and he was prepared to accept the evidence of two witnesses whom he names.
9. The argument on the fourth point is put in this way. Matrimonial agency is true agency within the meaning of the Indian Contract Act (Wilson's Digest of Anglo-Muhammadan Law, 3rd Edition, pages 106-107) and, therefore, the agent who acted for the first defendant at the marriage being a minor was incompetent to act. Now, in Ameer Ali's Muhammadan Law, 4th Edition. Volume II, at page 364, it is stated that the proxy need not be an adult. From the context it might, perhaps, be inferred that this applies to the proxy who carries the proposal. Assuming that to be so, and if minority is a disqualification, it might perhaps be argued, if necessary, that by virtue of Section 2 of the Indian Majority Act and of the fact that under Muhammadan Law personal emancipation of a minor occurs on the attainment of puberty, that the agent was not disqualified, there being no finding as to his actual age in this case. But it is not necessary for assuming the soundness of appellants' argument that matrimonial agency is true agency within the meaning of the Contract Act. Section 184 of that Act permits a minor to be an agent, as between the principal and a third person. There is, therefore, no substance in this point.
10. The result then is that the appeal must be dismissed with costs, but there will be this variation in the decree that the clause directing that plaintiff shall get defendant No. 1 as his wife will be struck out, and the decree will be set aside as against the first defendant. The setting aside of the decree against the first defendant will not have any practical effect for, if she wishes, she can go to her husband, while, if she does not, she can on attaining puberty repudiate the marriage.