(1.) THERE is not much force in this second appeal, though on the short question involved in the case the courts below have expressed divergent opinions. The appellant brought the suit for a declaration that the respondent was not his legally wedded wife and consequently, the child born in the union was not also his child. The courts below have concurrently found that the appellant (a Mohamedan) married the respondent as his third wife, lived with her for about 7 years and also had a child. That concurrent finding cannot be seriously questioned in second appeal; and I confirm that finding.
(2.) THE trial court has held further that though the appellant married the respondent, it was a fasid or irregular marriage, so that the respondent was not the wife of the appellant and that the child was not his child. THE reason given by the Munsiff for holding that the marriage was irregular is that the respondent, a Shafi virgin girl with no father, grandfather or agnatic male relation alive, could have been given in marriage only by the kazi, which did not take place. On the other hand, the Subordinate judge has held that the marriage was not an irregular marriage, because Dw. 2 acted as wali and gave away the respondent in marriage to the appellant: in the opinion of the Subordinate Judge, the kazi need not necessarily be the wali in such a case. THE lower appellate court has further held that since the respondent attained puberty before the marriage, she was competent to contract a marriage by herself without the intervention of a guardian. THE lower appellate court has again held that even if the respondent was not competent to contract a marriage herself, since consummation took place and she lived as the wife for several years even after she attained majority, she ratified the marriage, which she could have repudiated when she attained majority (strictly, age of discretion which means puberty ). THE question for me to consider in second appeal is whether this view of the Subordinate Judge is not correct.
The counsel on both sides have drawn my attention to some sections in Tyabji's Muhammadan Law, 3rd Edn. S. 17b (2) (b) says that under the Shafi and Maliki law, a thayyiba (a widow or divorcee) is competent to contract a marriage, but not a woman who is a virgin: the marriage of an adult virgin governed by the Shafi law, contracted by her father without her consent, has been held not to be valid. S. 64 says that under Shia and Shafi law no person other than the father and father's father, and under Maliki law no person other than the father, is entitled to act as guardian for marriage. Again S. 67 provides that the authority of a guardian for marriage ceases when the ward becomes competent to contract himself or herself in marriage. These sections make it clear that in the case of a Shafi virgin girl her father or grandfather is to act as her guardian in marriage and such authority of the guardian ceases when the girl becomes competent to contract herself in marriage. She becomes competent to contract in marriage when she attains the age of discretion, i. e. puberty. Therefore, the guardianship of the father or the grandfather must cease when the ward attains puberty.
I shall now refer to a passage from Kashi Prasad saksena's Muslim Law as Administered in India and Pakistan, 4th Edn. , at page 157, where the author deals with Shafi and Maliki marriages. The author says that under the Shafi and Maliki laws the consent of the adult virgin is not sufficient for the completion of the marriage contract: then the author refers to a passage from The Radd-ul-muhtar to the effect that Shafi and maliki hold a contrary opinion, but there is no authentic hadis in support of their views. The author states the ultimate legal position thus: "it has been recommended at the same time that an adult virgin should entrust the negotiations of her marriage to a wali, in whom she can place every reliance". "in other words", the author continues, "she cannot contract herself in marriage without the intervention of her guardian. " This also indicates that in the case of a Shafi virgin, may be minor may be major, it is advisable or it is recommended that the consent of the girl is given through a wali, in whom she can place reliance. As stated by saksena, even if the girl cannot contract herself in marriage without a guardian, what she should do is only to engage a wali, or entrust the work of giving her in marriage to a wali, in whom she can repose confidence: such wali need not necessarily be the kazi.
(3.) COMING to the case in hand, what the evidence discloses is that the respondent authorised Dw. 2 to give her in marriage to the appellant. The evidence also discloses that Dw. 2 is one who used to perform marriages in the locality; and he says that he, in exercise of the authority given to him by the respondent, gave her in marriage to the appellant.
At this stage the counsel of the appellant argues that dw. 2 had no authority to act as wali, because pw. 3 was the kazi appointed by the State; and that in the absence of a guardian who was competent to give away a Shafi girl in marriage and in the absence of her agnatic relations, the sultan or the ruler alone can act as the guardian, so that the representative of the Sultan or the ruler, namely, the kazi, was alone competent to act as guardian in this case. In other words, the contention is that pw. 3 should have acted as guardian and not Dw. 2. No authority has been brought to my notice in support of this excepting S. 61 from Tyabji's work, wherein the author says that the person ultimately entitled to be the guardian is the Sultan or the ruler and then the judge and a person appointed by him. This will not help the appellant, because what this shows is that the ultimate guardian even after exhausting people like the maula and successor by contract is the Sultan or the ruler. In the present case that ultimate stage has not yet been reached, where the State or its representative, the kazi, should act as the guardian. Therefore, Dw. 2 was a properly constituted wali; and he gave away the respondent in marriage to the appellant with the result that the marriage was a proper and valid marriage.;