1. The plaintiff in this suit is the mother and certificated guardian of a minor Muhammadan girl The defendant No. 1, the appellant before us, is the uncle of girl. He is said to be the stepbrother of the defendant No. 2, who is the father of the minor defendant No. 3 Baharulla Mundal. The suit was brought for a declaration that a ceremony purporting to be a ceremony of marriage between the plaintiff's daughter and the defendant No. 3 was not duly performed and was invalid. The Courts below have concurred in making the declaration sought and thig appeal is preferred by the defendant No. 1.
2. The question whether the rites required by the Muhammadan Law were duly performed, turns on matters of fact and if the decrees of the Courts below were not otherwise open to objection, their finding on that questionwould be binding on us.
3. On behalf of the defendant No. 1, however, it has been contended throughout that the suit is not maintainable by the plaintiff on the ground that she has no right or authority to intervene in matters relating to the marriage of her daughter. It is said that when, as here, the unole is the nearest male agnate, be is the guardian for marriage of his minor niece and is in a position to compel her marriage to a bridegroom of his own selection, subject to the girl's right, on attaining puberty, to refuse her consent to the marriage and to take the proper steps to have it cancelled.
4. In the Courts below it seems to have been held (without reference to the rights of the uncle) that the mother as the appointed guardian of the person and property of her minor daughter has a legal character within the meaning of Section 42 of the Specific Relief Act entitling her to the declaration which she seeks. The daughter's marriage or alleged marriage is apparently regarded as an invasion of the mother's rights as guardian, which, it is said, are 'affected.' This view of the case cannot be supported.
5. Clearly the legal character or status involved is the status of the two persons said to have been married, and the true objection to the suit is that the plaintiff's daughter is no party to it She is, it would seem treated as a chattel while her elders are disputing about her disposal in marriage, either because there are money considerations involved or because they are quarrelling about other matters. As the suit is framed, in any view of the rights of the uncle it would not be a proper exercise of judicial discretion to make any declaration under Section 42 of the Specific Belief Act, inasmuch as under Section 43 the decree would not be binding on the daughter.
6. It is unnecessary, therefore, to determine the relative rights of the mother and uncle in the present connection or to deal with the further question whether under any or under what circumstances it would be open to a mother either as the natural guardian or as the appointed guardian of her daughter, with a view to the protection of her daughter's interests to bring all necessary parties before the Court and to seek a judicial pronouncement as to the validity of a form of marriage to which that daughter had been subjected.
7. If our decision in the present case should leave the mother in any doubt as to her duty, it will be open to her by application to ask for the advice of the District Judge.
8. The appeal succeeds on the ground indicated. The judgments and decrees of the Cfcurts below are set aside and the suit dismissed. In the circumstances we make no order as to costs.
9. Beachcroft, J.--I agree.