JUDGMENT
Bilal Nazki, J.
1. This second appeal has been filed by the present appellant who was the plaintiff before the trial Court. He filed a suit in the Court of Sub-Judge Poonch in-September, 1990 against the present respondents stating therein that the respondent No. 1 was his legally wedded wife. The marriage had been performed five years back. He also submitted that the marriage was entered into the register ‘Nikah Khwani’. He also alleged that at the time of marriage he executed an agreement that after the marriage he would reside in the house of respondent No. 2, his mother-in-law along with wife for four years as Khana Damad, He further submitted that he resided there and cohabited with his wife during that period. He submitted that as he had gone to his house, the respondents do not allow his wife, respondent No. 1 to live with him as his wife. Therefore, he sought a decree for restitution of conjugal rights and also for perpetual injunction against the respondents other than respondent No. 1 that they should not interfere in living together of respondent No. 1 and the appellant. He also sought a decree that the respondent No. 1 should not be married either to respondent No. 3 or any other person.
2. Respondent No. 1 in her written statement stated that her marriage had been performed with the appellant five years back against her Will and she was a minor studying in 8th class at that time. She further submitted that she has never cohabited with him nor she ever lived with him as his wife. The trial Court framed the following issues :
1. Whether the Nikah of Shah Begum defendant with plaintiff had been performed forcibly five years ago when she was a minor, studying in 8th class and by winning over her mother against her wishes and without any guardian? OPD
2. Whether the plaintiff entered into an agreement to reside in the house of defendant No. 2 along with Shah Begum for four years as Khana Damad? OPD
3. Whether the defendants are interfering in the settlement of Mst. Shah Begum with the plaintiff? OPD 4. Relief.
3. The trial Court while deciding issue No. I came to the following conclusion:
“The defendants have, therefore, failed to discharge the burden of issue No. 1 as they have not produced any evidence, but to talk of cogent evidence, to prove this issue. The defendant in their written statements have admitted that at the time of her Nikah with plaintiff, defendant No. 1 was aged 14 years and was studying in 8th class. Therefore, defendants have not denied the performance of marriage between plaintiff and defendant No. 1 which they have alleged is that the Nikah had taken place by force and by taking undue advantage of minority of defendant No. 1, a fact which they have failed to prove by their evidence or through the evidence of plaintiff. In the circumstances, I hold that the defendants have failed to prove this issue which I decide against the defendants and in favour of plaintiff.”
4. Issue No. 1 is pivotal in these proceedings. Therefore the trial Court issued a decree for restitution of conjugal rights and perpetual injunction. An appeal was taken before the District Judge Poonch who while deciding issue No. 1 came to the following conclusion:
“From the evidence produced by both the parties it is quite clear that the alleged Nikah of Shah Begum defendant-appellant No. 1 with the respondent-plaintiff has been performed forcibly when she was minor studying in 8th class by winning over her mother against her wishes and without the guardian. Hence this issue is decided in favour of the appellant-defendant No. 1 and against the respondent-plaintiff. The finding of the trial Court that the defendant-appellant No. 1 has failed to prove this issue is set aside.”
Because of the finding on issue No. 1 by the District Judge as quoted above, he set aside the judgment and decree of the trial Court and dismissed the suit. This second appeal has been filed challenging the judgment and decree of the learned District Judge.
5. In the second appeal the scope of this Court is limited. Therefore, this Court is confining itself to the points of law canvassed before this Court by the learned counsel for the parties.
6. Learned counsel for the appellant submits that the District Court has made out a case for respondent No. 1 that she being a minor at the time of her marriage could repudiate her marriage after attaining puberty. Since the respondent No. 1 never claimed her right to repudiate the marriage, therefore the decree could not be refused to the present appellant. He has further submitted that on the question of evidence, the trial Court had rightly come to the conclusion that the respondent No. 1 was major at the time of her marriage and a valid marriage had been executed. He further submits that there was cogent and reliable evidence that the appellant had lived with the respondent No. 1 for a number of years.
7. Although no substantial question of law has been raised in the memo of appeal which is mandatory under Section 100, C.P.C. for entertaining the appeal, yet during the course of argument I have found that the question of importance needs to be answered in this appeal. The question on the facts and circumstances of the case would be that whether a girl who according to the plaintiff-appellant was major at the time of Nikah could be represented by a Wali-Guardian? The Register of Nikah which has been produced and proved during the evidence before the trial Court clearly shows that one Moh’d Assad Ulllah Peer S/ o Habib was the rightful guardian (Wali Jayaz) of the respondent No. 1. Moh’d Assadullah has also deposed in the Court. He has not at all stated in his statement that he was ‘Wali’ of respondent No. 1. He has only stated that he was the ‘Vakil’ of respondent No. 1, whereas the Registry of Nikah shows Peer Abdul Ahad as the Vakil for respondent No. 1. Now the question to be decided by this Court would be that if the respondent No. 1 was a minor at the time of marriage, she could not appoint a Vakil and also she was incapacitated in terms of Muslim Law to contract the marriage herself because during the minority only the rightful guardian (Wali Jayaz), who is father or the grand father or father’s father could give in marriage a girl who was minor. Since the register shows the name of Mohd Assad Ullah as the guardian of the girl, there is presumption that she was married and on attaining the puberty if she denied the marriage and repudiated the marriage, she was within her rights to do it. Looking to the same facts from the other angle, if the respondent No. 1 was a major, at the time of the alleged Nikah, then also the ‘Wali’ had no right to give her in marriage to any one else because a major person in Muslim Law has the absolute authority to contract the marriage. Even the father of the girl cannot contract a marriage of his daughter against her will if she is a major. This is the settled principle of law in Islamic law that once the girl becomes major, she has absolute right to contract the marriage and this right cannot be exercised by any one else including the father of the girl. It is only in the case of minority of the girl that ‘Wali Jayaz’ can contract her marriage.
8. So if it is taken that the girl, as alleged by the plaintiff-appellant was major on the date of Nikah, even then the marriage was invalid because of the fact that it had been contracted by a ‘Wali’ which is claimed by Assadullah, who is shown to be the Wali in the register of Nikah. His role becomes more doubtful because he happens to be the uncle of the girl and also is the father of the appellant.
9. Therefore, for the reasons given above I do not want to interfere in the finding of the learned District Judge who has come to a definite conclusion that the girl was minor at the time of Nikah. This conclusion is final and this Court cannot interfere in this conclusion in the second appeal. This Court feels it proper to add that the marriage of the respondent No. 1 had been contracted during her minority by a person who was not competent to give her in marriage. Moh’d Assadullah who is shown to be the ‘Wali’ has not shown at any point of time what authority of law he had to give respondent No. 1 in marriage during her minority. Therefore, in my view there was not even a repudiation needed by respondent No. 1 to annul the marriage because the marriage in itself had been invalid.
10. For these reasons this appeal is dismissed and the judgment and decree of the District Judge is upheld with the addition that the marriage contracted between the parties was invalid ab initio and shall not bind the parties. The suit of the plaintiff accordingly gets dismissed.