Hassan Kutti Beary vs Jainabha

Odgers, J.—This is a Second Appeal from the decree of the learned District Judge of South Kanara confirming that of the District Munsif,

and the question is has the father of the plaintiff the right to marry her to the defendant without her consent? The parties are Moplahs and Sunni

Muhammadans. The case has been argued on the assumption that they belong to the Shafi sect of the Sunnis. Nikka was performed by the father

of the plaintiff in the Tadangere Mosque, and the question is - is this an irrevocable marriage? The plaintiff is an adult virgin and it is not proved that

she has been consulted or that her consent has been obtained. Another important sect of the Sunnis is the Hanafis. There is no doubt that a woman

cannot be married in that sect without her consent. The learned Advocates on each side have been at pains to bring to our notice every possible

authority which exists in the text-books. There are practically no cases on the point, and therefore the text-writers must be shortly examined.

Wilson in his Anglo-Muhammadan Law, p. 68, points out as one of the chief variations of the Shaft creed that women have less freedom of

choice in the matter of marriage. He says:

Not only female minors, but adult women who are virgins, may be disposed of in marriage by the father or paternal grandfather without their

consent and though widows and divorced women cannot be given in marriage against their will, even they re-marry without the intervention of a

guardian or wali.

And in the same book (Ch. 13) dealing with the peculiarities of the Shafi school of Sunni Muhammadans and quoting from the Minhaj, a work

dating from the 13th century of the Christian era, he says:

Not only female minors, but adult women who are virgins may be disposed of irrevocably in marriage by the father or failing him by the paternal

grandfather with or without their consent; but their consent is nevertheless considered desirable.

Minhaj-et-Talibin which has been translated apparently under the authority of the Dutch Government for use among Shaft Muhammadans of

Java says at page 284:

If his daughter is a virgin the father can dispose as he pleases or remarry.

And he adds:

It is, however, always commendable to consult her as to her future husband, and her formal consent to the marriage is necessary if she has already

lost her virginity.

In the prefatory note, the Editor says:

It is not always possible to decide the question by reference to Minhaj done.

But the two other treatises to which he refers as the two standard works in the whole modern literature on the school of Shan are unfortunately

not available to us here. The late Syed Amir Ali in his introduction to Muhamimadan Law cites Minhaj as a Shan work of repute but is himself quite

definite as he remarks;

Among Shafis and Malikis, although the consent of the adult virgin is as essential as among Hanafis and Shiahs as to the validity of a contract of

marriage entered into on her behalf, she cannot contract herself in marriage without the intervention of a wali.

If that is to be taken as the modern view on the subject, it seems to me that there is no more to be said.

A good deal of the learning on this part of the subject is concerned with the competence to contract marriage. According to Mr. F.B. Tyabji at

page 91 of his book:

A Shafi thayyaba is competent to contract marriage, i.e., to enter into a contract of marriage but not a woman who is a virgin.

At page 97 the learned author says : that the consent to the marriage of a person not competent to enter into a contract of marriage must be

expressed by his or her guardian for marriage who is a wali. This would also seem to point to the conclusion arrived at by Syed Amir Ali to the

effect that consent was necessary. The answer to that argument put forward is that the consent has been given on her behalf by the father as her

wali. That of course cannot be because the Lower Courts have found as a fact that she was never asked and she had never even seen her future

husband. So that her consent was never expressed either personally or through a wali at all. Hedaya in Chapter 2 on Guardianship and Equity

mentions the Shafi assertion that a woman can by no means contract herself in marriage in any circumstances whether with or without the consent

of her guardian. That must simply mean the mode of expressing consent. Further at page 96 Hedaya says:

It is not lawful for a guardian to force into marriage an adult virgin against her consent. This is contrary to the doctrine of Shan who accounts an

adult virgin the same as an infant.

And the argument of the Shan is refuted by the argument of ""our doctors."", Hanafis. Sir Abdur Rahim says as follows at pages 330 and 331:

According to the Hanafis, every person who is not a minor whether male or female maiden or thayyaba (that is, a girl who has had sexual

intercourse) is competent to contract marriage and cannot be given in marriage without his or her consent whether by the father or any other

relative. The Shafis and Malikis agree with the Hanafis so far as boys and thayyabas who have attained majority are concerned; the former,

however, hold that a minor thayyaba is competent to contract marriage and a maiden, even if she has attained majority, cannot marry without the

consent of the guardian, while the Hanafis in each of these two cases hold the contrary view. Thus with the Hanafis so far as the females are

concerned minority is the test whetheir the intervention of a guardian is necessary or not and with the Shafis the test is whether a girl is a maiden or

thayyaba. The difference between the two sects on this point though not perhaps of much practical significance involves a question of principle. The

Hanafis'' allege that the Shafis'' refusal to acknowledge the right of a maiden of full age to contract marriage of her own will amounts to a breach of

a cardinal principle of Muhammadan Law, namely, that the legal status of a grown up female is as complete as that of a male.

Even in that passage the learned author is concerned with the capacity to enter into the marriage contract, i.e., as to whether the intervention of

a wali is necessary or not. In the Muhammadan Law marriage would appear to be nothing more nor less than a contract and therefore there must

be consent. How that consent is to be expressed is a matter on which as already stated there appears to be much learning and some confusion

appears to exist as will be apparent from the quotations already given between the necessity of such consent and the mode of its expression. In

Amir Ali page 343 it is said that

A woman who is sane, free and adult can marry herself to an equal, with or without the consent of any person who might be her wali.

Shaft and Malik hold a contrary opinion"" says the Radd-ul-Muhtar, ""but there is no authentic hadis in support of their views. At the same time it is

recommended as more consistent with decorum that an adult virgin should entrust the negotiations of her marriage to a wali in whom she has trust.

In the recapitulation at page 350 the learned author says:

Under the Maliki and Shaft Law the marriage of an adult girl is not valid unless her consent is obtained to it. But such consent must be given

through a legally authorised wali who would act as her representative.

In a case of Muhammad Ibrahim v. Gulam Ahmed (1864) 1 Bom. H.C.R. 236 it was held that according to the doctrine of Shan a virgin

whether before or after puberty cannot give herself in marriage without the consent of her father. That of course is not this case at all.

Giving the best consideration I can to these various authorities it seems to me that the only view against the position taken up by the Lower

Courts is that of Wilson, and even he says that consent is commendable. There is further the evidence in this case of a Musaliar, D.W. 2, who says

he is a teacher of Sastras by which, I suppose, he means the Koran. He says that among Shafis consent of the girl is not necessary for the first

marriage but that all the books state that it is better to get it. It would have been interesting if a body of evidence had been given in the first Court

as to the ideas obtaining among the best opinions of the community of the present day on this subject. I do not imagine that these opinions have

retrogressed and become more conservative as time has gone on; and it may be that the better opinion among the Shafis on the West Coast is that

no adult virgin should be married without her consent. However that may be, the question is here whether enough has been shown to enable us to

say in second appeal that the view taken by both the Lower Courts is manifestly wrong in law. I am by no means persuaded that it is. I think

therefore that the decree of the Lower Appellate Court should be confirmed and this second appeal dismissed with costs.

Madhavan Nair, J.—This Second Appeal arises out of a suit instituted by the plaintiff for a declaration that she is not the properly wedded

wife of the defendant and for an injunction restraining the latter from asserting his rights as her husband.

The parties are Sunnis and they belong to the Shafi sect. The Lower Courts have found that the plaintiff had attained puberty at the time of the

marriage, that no consummation ceremony was performed and that her consent has not been obtained by her father for the performance of the

nikka. It was contended on her behalf that, she being an adult virgin, the nikka performed without her knowledge and consent is invalid under the

Shafi Law. This contention has been upheld by the Lower Courts.

The question for consideration is whether the marriage of a Muhammadan woman who is an adult virgin is under the Shafi Law invalid owing to

want of consent on her part. There are no decisions directly bearing on the question; the case reported in Muhammad Ibrahim v. Gulam Ahmed

(1864) 1 Bom. H.C.R. 236 does no more than point out the difference between the Hanafi and the Shafi Law on this point. The evidence of D.W.

2, the Khaliff of Puttur, the only witness who speaks on this question, is not much helpful as he does not refer to instances of marriages declared

invalid by the Court or held so by the community owing to want of consent on the woman''s part. The case has therefore to be decided on the

statements of the Law contained in the various recognised text-books of authority on Muhammadan Law.

The appellant''s contention that want of consent on the part of the woman does not invalidate her marriage under the Shafi Law is supported by

the statement of the Law contained in Wilson''s Anglo-Muhammadan Law, Hamilton''s Hedaya and Minhaj-et-Talibin. In Wilson''s book the law

with regard to Shafi Muhammadans is stated as follows:

Not only female minors, but adult women who are virgins may be disposed of irrevocably in marriage by the father with or without their consent;

but their consent is nevertheless desirable

(See p. 407, para. 392.).

In Hamilton''s Hedaya, Vol. 1, page 96, the law is thus stated:

It is not lawful for a guardian to force into marriage an adult virgin against her consent. This is contrary to the doctrine of Shafi, who accounts an

adult virgin the same as an infant, with respect to marriage, since the former cannot be acquainted with the nature of the marriage any more than the

latter, as being equally uninformed with respect to the matrimonial state, whence it is that the father of such an one is empowered to make seizure

of her dower without her consent.

Minhaj-et-Talibin (Guide of the earnest enquirer), a book dating from the 13th century of the Christian era and which is exclusively devoted to a

statement of the principles of the Shaft Law, also supports the contentions of the appellant. It is stated in that book that

a father can dispose, as he pleases, of the hand of his daughter without asking her consent whatever her age may be, provided she is still a virgin. It

is, however, always commendable to consult her as to her future husband.

(See p. 284, Section 4, para. 3)

Though this is a book exclusively devoted to a statement of the Shafi Law, it is difficult to say to what extent it can be relied on in deciding

questions arising under the Shafi Law. Though the translator says that ""the book occupies the first rank for deckling legal cases,"" he later on

modifies the effect of the statement by saying:

It is not always possible to decide a question by reference to Minhaj and in such a case a Muhammadan jurist...has recourse principally to the

Tohfa and the Nihaya, which Dr. Th. Juynoboll in his Handbuch des Islamischen Gesetzes, 1910, calls the two standard works in the whole

modern Fikh literature of the School of Shafi.

We have not been able to refer to these two books. Even according to Minhaj-et-Talibin, it is always commendable to consult a woman as to

her future husband and we have already noticed that Mr. Wilson also says ""that the woman''s ''consent is nevertheless desirable''.

Against this authority the respondent relies mainly on the statements of the Shafi Law contained in Mr. Amir Ali''s Muhammadan Law, Third

Edition, Vol. II, at p. 350, and Mr. Tyabji''s Text-book of Muhammadan Law. In the former book it is stated that

To re-capitulate : Under the Maliki and Shafi Law, the marriage of an adult girl is not valid unless her consent is obtained to it, but such consent

must be given through a legally authorised wali, who would act as her representative. Under the Hanafi and Shiah Law, the woman can consent to

her own marriage either with or without a wali.

Speaking of the competence of a female to enter into a contract of marriage, Mr. Tyabji states in para. 17-B of his Principles of Muhammadan

Law, that

(a) According to the Hanafi Law she becomes competent when, being of sound mind, she attains puberty, (b) According to the Shafi and Maliki

Law, a thayyaba is competent so to contract but not a woman who is a virgin.

And after thus dealing with the capacity of parties to enter into a contract of marriage, the law with regard to the consent of parties is thus

stated:

(1) The consent to the marriage of a person competent, u/s 17-B above, to enter into a contract of marriage, must be expressed either by himself

or his duly authorised agent or proxy. (2) The consent to the marriage of a person not competent to enter into a contract of marriage u/s 17-B

must, subject to the said section, be expressed by his or her guardian for marriage or by the duly authorised agent or proxy of such guardian.

(See para. 20, page 97-)

It would seem that, in the opinion of this writer, though an adult virgin cannot, owing to her incapacity to enter into a contract, express her

consent except through her guardian for marriage or by the duly authorised agent or proxy of such a guardian, nevertheless her consent is

necessary to render the contract of marriage valid. This is what we can gather impliedly by reading the two paragraphs 17 and 29 together.

Nowhere does the learned author say explicitly that a Shafi woman can be married with or without her consent by her father if she is an adult

virgin; but his opinion seems to be, as I have indicated above, in favour of the view that the consent of an adult virgin is necessary to render her

marriage valid under the Shafi Law.

It will thus be obvious that the authorities on the question are very much divided and except Mr. Amir Ali and Mr. Tyabji - the former

expressly and the latter impliedly - all the other text-writers that we have thus far exaxmined point out that the marriage of an adult virgin under the

Shafi Law will not be invalidated by want of her consent, whereas, under the Hanafi Law, the woman''s consent is necessary to render the

marriage valid. The opinion of Sir Abdur Rahim has been referred to by both the appellant and the respondent. In page1 330 of his book on

Muhammadan Jurisprudence the learned writer states his view as follows:

According to the Hanafis, every person who is not a minor, whether male or female, maiden or tayyiba (that is, a girl who has had sexual

intercourse) is competent to contract marriage and cannot be given in marriage without his or her consent whether by the father or any other

relative. The Shafiis and the Malikis agree with the Hanafis so far as boys and thayyabas who have attained majority are concerned: the former,

however, hold that a minor thayyaba is competent to contract marriage and a maiden even if she has attained majority, cannot marry without the

consent of the guardian, while the Hanafis in each of these two cases hold the contrary view. Thus with the Hanafis, so far as the females are

concerned, minority is the test whether the intervention of a guardian is necessary or not and with the Shafiis the test is whether a girl is a maiden or

tayyiba. The difference between the two schools on this point, though not perhaps of much practical significance, involves a question of principle.

The Hanafis allege that the Shafiis'' refusal to acknowledge the right of a maiden of full age to contract marriage of her own will amounts to a

breach of a cardinal principle of Muhammadan Law, namely, that the legal status of grown up female is as complete as that of a male.

Having regard to the marginal heading of the paragraph ""The capacity to enter into a marriage contract "" it is possible to argue, as contended

for by the respondent, that, in the opinion of this learned writer also, under the Shafi Law the consent of the woman who is an adult virgin is as

essential as under the Hanafi Law to validate her marriage though she is not competent to express that consent except through a wali.

It seems to me that, having regard to the nature of the marriage relationship as understood in Muhammadan Law, the difference between the

two schools, the Hanafi and the Shafi, on the point under consideration is not so very fundamental as is made to appear from the text-books.

Marriage in Muhammadan Law is purely a civil contract, and if so, the consent must be considered a necessary element to give validity to the

marriage. In the opening paragraph of the judgment in Asgur Ali Chowdhry v. Muhubbut Ali (1874) 22 W.R. 403 which was a case in which the

husband of a Muhammadan woman sued his father-in-law for damages when the marriage was found invalid, Markby, J. says:

After the marriage, the plaintiff instituted a suit for the purpose of compelling the girl to live with him as his wife, but failed by reason of its being

established that the girl was of full age, and that she had not given her consent.

We do not know what law governed the parties and there is no further reference in the judgment to this question of consent as the case dealt

with quite a different matter. After stating,

No contract can be said to be complete unless the contracting parties understand its nature and mutually consent to it,

Mr. Amir Ali points out the distinction between the Hanafi and the Shafi Law thus:

Among the Shafis and Malikis, although the consent of the adult virgin woman is as essential as among the Hanafis and the Shiahs to the validity of

a contract of marriage entered into on her behalf, she cannot contract herself in marriage without the intervention of a wali. Among the Shafis, a

woman cannot personally consent to the marriage. The presence of the wali or guardian is essentially necessary to give validity to the contract. The

wali''s intervention is required by the Shafis and the Malikis to supplement the presumed incapacity of the woman to understand the nature of the

contract, to settle the terms and other matters of similar import, and to guard the girl from being victimised by an unscrupulous adventurer or from

marrying a person morally or socially unfitted for her.

It appears to me therefore that the consent of an adult virgin even among the Shafi sect is essential for the validity of a marriage and that the

only difference between the Hanafi Law and the Shafi Law on this point is that under the Shafi Law the consent must be expressed through a wali

and not direct. Even according to the ""Minhaj,"" which has been strongly relied upon by the appellant as being a book upon Shafi Law, it is always

commendable to consult the woman as to her future husband. The desirability of adopting this course is suggested by Sir R. Wilson also. Having

regard to the conception of marriage as a contract in the Muhammadan Law, I think Mr. Amir, Ali''s explanation of the difference between the

Hanafi and the Shafi Law should be accepted as correct : and therefore it follows that in this case the marriage of the plaintiff with the defendant

should be held invalid as her father had not secured her consent for it. This view is certainly more equitable and more suitable to modern times.

I would therefore dismiss this Second Appeal with costs.