Case – Ms. Ghulam Kubra Bibi v. Mohd. Shafi MohdDin, 1940
Fact – Mohammad Shafi sued Mt. Ghulam Kubra for restitution of conjugal rights. He also impleaded her parents and asked that an injunction should be issued against them to restrain them from interfering in his marital relations with his wife.
There was also a question whether the woman was of age at the time when she was married. Evidence was led by either side. The Mullah appeared and he said that he read the nikah at the instance of the grandfather of the girl. He categorically denied that anyone was sent to the girl to enquire from her whether she agreed to the marriage.
The trial Judge held that the girl was of age when she was married. He was of the view that the marriage had been proved. He, therefore, granted a decree as prayed for against all the defendants.
Mt. Ghulam Kubra has come upon further appeal to this Court against the decree granting restitution of conjugal rights.
Issue – Whether this marriage is a valid marriage under the Muslim Law?
Contentions and Judgement:
• According to Mahomedan law, it is absolutely necessary that the man or someone on his behalf and the woman or someone on her behalf should agree to the marriage at one meeting, and the agreement should be witnessed by two adult witnesses.
• It is on the record that the girl was 17 years of age when her marriage was solemnized. It appears that the parties did not know then that according to Mahomedan law a girl becomes major for the purposes of marriage when she reaches the age of puberty, which is presumed to be the age of 15 years.
• I think they were under the impression that she could not be major up to 18 years of age, as is the general law, and I guess that the girl was, therefore, given away by the grandfather and not personally consulted.
• For the reasons given above I hold that no valid marriage has taken place in this case, and that the plaintiff has, therefore, no right to sue for restitution of conjugal rights.
• Simply vague allegations, that there were two witnesses of the nikah, without giving their names, and whose statements were vague and incomplete is no proof of a valid nikah. The petitioner’s petition for restitution of conjugal rights against the defendant alleged wife was consequently dismissed.
