Sobrati vs Jungali

The Petitioner in this case was convicted by the Honorary Magistrate of Sealdah of an offence under sec. 498, I. P C., and sentenced to six months'' rigorous imprisonment. The only question raised by the Rule is as to the sufficiency of the evidence of marriage of Jungli with Hafizan, who is asserted by the prosecution to be his wife.

The evidence bearing upon that question is that of Jungli himself, who asserts that Hafizan was his married wife, and that she was married to him at Ghazipur 14 or 15 years ago; and that during all these years she has been living with him as his wife. He was cross-examined as to this statement, and in effect says that he has forgotten many of the circumstances attending the forms of the marriage ceremony, as he was very young at the time. He is unable, therefore, to mention any witnesses who may have been present at the marriage, though he does say that the father and the brother of the bride were present on the occasion. It appears from the evidence of another witness that Jungli was, at the time of the alleged marriage, only 10 years of age. There is next the evidence of Hafizan herself; and she states generally that the complainant is her husband; and that the marriage with him took place 13 years ago, and that since then she had lived with him as her husband. Lastly, there is the evidence of one Jhuboo, who is the first cousin of Hafizan, who states that he was present on the occasion of the marriage. He was the only witness who enters in any detail into what took place so far as the forms of the marriage ceremony are concerned. He states in his examination-in-chief that there was a mollah or priest present whom he named. He also names two persons who were present as witnesses; and he alleges that the marriage took place some 12 years ago, and that one Abdul Latif was present and acted as the vakil who represented Hafizan. In cross examination, when questioned as to the manner in which the proposal of marriage was made, he states "the vakil said that Ramdur''s son Jungli, and Haootoo''s daughter, Hafizan, were being married; and Rs. 125 or Rs. 150 were to be given as Denmohur, Jungli agreed to this. The bride was an infant, and her father spoke to the vakil on her behalf to do this. Witnesses were asked by the vakil to bear witness to what happened." This is the whole of the evidence on the question. Having regard to the view consistently taken by this Court, that in prosecutions such as the present strict proof of the marriage is necessary, we are not prepared to hold that what has been established by the evidence in this case comes up to that standard. It seems unnecessary to examine the evidence in detail; but where it fails, in our opinion, is with regard to the circumstance that Jungli, who was, at the time of the alleged marriage, as has already been mentioned, a mere boy, who had not arrived at the age of discretion and who was therefore incapable of giving a valid consent, was not represented by anyone who was capable of binding him by the contract. It is essential according to the Mahomedan law that the husband should be capable of giving a valid consent, or should be represented by some one who can lawfully consent on his behalf; and that the girl also when a minor should be represented by a duly authorized person for the purpose of binding her. We think that the evidence of marriage in this case is insufficient for the purposes of the prosecution; and we accordingly set aside the conviction and sentence.