JUDGMENT
Lindsay, J.
1. The suit which has given rise to this appeal was brought by a Muhammadan lady, Bibi Amina Khatun, in order to obtain a declaration that a ceremony of nikah which is said to have taken place on 22nd September 1917, between her and defendant 1, Sibt Ahmad, was not lawful and binding and that the relation of husband and wife did not exist between defendant 1 and herself. Defendant 1, Sibt Ahmad, was impleaded as a minor under the guardianship of his grandfather, Wazir Ahmad.
2. During the hearing of the appeal some question was raised as to the age of this defendant who is the appellant before us. It was suggested that since the decision of the case in the Court below Sibt Ahmad had become of full age. We thought it proper in these circumstances to send for Sibt Ahmad and to examine him upon oath. He was not examined in the Court below. Sibt Ahmad has not appeared before us and has made a statement which we accept, namely, that he was born in the month of May 1910. This information, he says, he has got from his mother. We hold, therefore, that Sibt Ahmad, not having yet attained the age of 18 years, is still a minor and is properly represented in these proceedings by his legal guardian, his grandfather, Wazir Ahmad. Defendant 2 impleaded in the suit was Maulvi Qasim Hasan, who is the father of the plaintiff. He was a pro-forma defendant.
3. In substance the defence to the suit was that the ceremony of nikah which had taken place between the plaintiff and defendant 1 was a Valid ceremony, and that the plaintiff was not entitled to the declaration sought. We may notice here that a plea of limitation was raised in the Court below and decided in favour of the plaintiff. This plea has now been abandoned and it is not denied that the suit for declaration was brought within time. The Subordinate Judge gave a decree in favour of the plaintiff and now in appeal we are asked to hold that the judgment and decree of the Court below are wrong, to find that there was a valid and binding ceremony of marriage between the plaintiff and defendant 1 and that, therefore, the suit ought to be dismissed.
4. Before we go on to discuss the issues which have to be determined in this appeal we think it proper to say something of the history of the family to which the parties belong. Wazir Ahmad, who appears in this litigation as the guardian ad litem of the minor defendant Sibt Ahmad, had two sons, Qasim Hasan the elder, who is the father of the plaintiff, and Ibn Ahmad the younger who is now dead. It is admitted that the plaintiff, Amina Khatun, was born on 24th November, 1904 and consequently at the time this nikah took place in September 1917 she was close on 13 years of age. Amina Khatun had a brother named Abdul Hafiz who is said to have died in or about the year 1919 or 1920.
5. It is admitted that before September 1917 Wazir Ahmad had totally disinherited his son Qasim Hasan, the father of the plaintiff, by making a gift of all his property to his younger son Ibn Ahmad. According to what is set out in the written statement this gift was made because Wazir Ahmad was displeased with what is called the “misconduct and highhandedness” of his elder son. We have no particulars of this misconduct but we can have little doubt after a perusal of the oral and documentary evidence in this case that Wazir Ahmad was led principally to execute this deed of gift because his son Qasim Hasan was married to a Shia lady. Wazir Ahmad himself is a rigid Sunni to whom the Shia creed is obviously abhorrent. This is made plain from some of the correspondence on record. It is also equally clear that Qasim Hasan’s wife, Mt. Ashraf Bano, is a staunch Shia and that she and her father-in-law have never been on good terms. The state of Wazir Ahmad’s feelings towards this lady may be gauged from the language of a letter which was dictated by him to one Basit Ali and which was sent to his son Qasim on 8th December 1917. It is alleged in this case and has also been deposed to by certain witnesses that after Qasim Hasan had been married to this lady his father Wazir Ahmad tried to convert the lady but failed. Wazir Ahmad himself denies this but from the evidence before us we think it highly probable that some attempt was made to bring over Mt. Ashraf Bano to the Sunni faith. However that may be, it is manifest that Ashraf Bano and Wazir Ahmad were hostile to each other.
6. We have also proof upon the record that Wazir Ahmad was anxious about the faith of the two children of Qasim Hasan. There can, we think, be no doubt that it was his desire that they should be brought up as Sunnis. Abdul Hafiz, the son of Qasim Hasan, disappointed this hope declaring himself to be a Shia some time in 1916 or 1917 at a time while his father Qasim Hasan was employed as a Deputy Collector at Fyzabad.
7. Having totally deprived, Qasim Hasan of his right to inherit any of his property it seems to have occurred to Wazir Ahmad to repair what he had done by arranging two marriages, namely, one between the plaintiff and Sibt Ahmad, the son of Ibn Ahmad, and the other between Qasim Hasan’s son, Abdul Hafiz, and Mt. Zohra, the daughter of Ibn Ahmad, and there can be no doubt that proposals to this effect were made both to Qasim Hasan and to Ibn Ahmad. On this point we have the evidence of a witness, Mujtahid Uddin, at p. 18 of the record; moreover, the fact is admitted by Wazir Ahmad himself in his deposition. Certain correspondence which is on the record, bearing date, June 1917, shows how these negotiations went on and also shows that at that time Qasim Hasan was most unwilling to give his daughter in marriage to Sibt Ahmad; it further appears that his wife was very strongly opposed to any such union.
8. Qasim Hasan has been examined in this case and from his own statement and from what appears from the letters which were written by him he was evidently between two fires at the time mentioned above. He was, we think, anxious about the property, that is to say, he wanted, if he could, to put his children in the way of succeeding to some of the property which had been gifted away by Wazir Ahmad to his younger son, Ibn Ahmad. On the other hand, his letters disclose that he was anxious for the happiness of his daughter. One objection which he had to the marriage was on the ground of disparity of age. He pointed out that the girl was between five and six years older than Sibt Ahmad. This statement regarding the disparity of age seems to have been challenged in the Court below but, as we have said above, it now appears from the sworn statement of Sibt Ahmad, that he is, as a matter of fact, some five years and six months younger than the plaintiff.
9. However reluctant Qasim Hasan was in June 1917, to allow a marriage to take place between his daughter and defendant 1, it appears that before the month of September 1917 he was won over by the solicitations of his father and became willing to allow the double marriage to take place, that is to say, the marriage between the plaintiff and Sibt Ahmad and the other marriage between his son Abdul Hafiz and the daughter of Ibn Ahmad called Mt. Zohra. The result of all this was that in September 1917, the two brothers, Qasim Hasan and Ibn Ahmad, with their families proceeded to the family house at Budaun where they arrived on 22nd September. On the night following their arrival, that is to say, the 23rd (not the 22nd as stated in the pleadings) a ceremony of nikah was performed as between the plaintiff Amina Khatun and Sibt Ahmad. The other proposed nikah for which also preparations seem to have been made at the same time was put off on the allegation that Abdul Hafiz was then not of sufficiently good character.
10. As regards this part of the case, we have every reason to believe that Ibn Ahmad was not really willing to marry his daughter to Hafiz and was only pretending to consent to this union, and we are satisfied that it was at his instance that the marriage which was fixed to take place simultaneously with the marriage of the plaintiff was postponed at the last moment. We have on record a letter, dated 21st September 1917, written by Ibn Ahmad to his father which indicates to us clearly that Ibn Ahmad intended to get his weaker-minded brother into the presence of his father after the parties had arrived at Budaun and was determined to exert his influence to have the marriage put off as it eventually was. Ibn Ahmad is dead and we cannot have his version of the affair but his letter speaks for itself as does also a letter written by Wazir Ahmad on 8th December 1917 in which he speaks of Ibn Ahmad holding the feet of Qasim’s wife and putting his head on her feet.
11. After the nikah had been celebrated between the plaintiff and defendant 1 the boy Abdul Hafiz was taken away from his father and made over to the custody of Ibn Ahmad with whom he lived for some time. The object of his being so made over is stated to have been in order that his character might be reformed. It appears that Ibn Ahmad sent him to school and also had religious instruction given to him by a maulvi. This was obviously done with the intention of making Abdul Hafiz a Sunni for, as we have already pointed out, sometime before this he had openly declared himself to be a Shia. The end of this arrangement was that Abdul Hafiz ran away and died at Jubbulpore in 1919 or 1920.
12. After 23rd September 1917, the plaintiff and her mother remained for a few weeks at Budaun. There is a dispute as to where they were staying all this time. For the defendant it is said that they were staying at the house of Wazir Ahmad. Ashraf Bano, however, and the plaintiff both say that they left the house of Wazir Ahmad and went to the house of Ashraf Bano’s brother. Indeed Mt. Ashraf Bano and her daughter both declare that they left the house of Wazir Ahmad on the morning of 23rd September 1917, and were not in Wazir Ahmad’s house at the time the ceremony of nikah was performed. According to Ashraf Bano she was utterly opposed to the marriage of her daughter with Sibt Ahmad and she stated in the Court below that having argued with Wazir Ahmad all night and having refused to assent to the marriage she left the house early the next morning with her daughter.
13. Having left Budaun the plaintiff and her mother joined Qasim Hasan at Mirzapore where he was employed at that time as a Deputy Collector. The correspondence on the record shows that just before Christmas 1917 Ibn Ahmad managed to get the plaintiff and her mother to Allahabad. This was not effected without a great deal of opposition, The letters go to show that the girl and her mother were brought to Ibn Ahmad’s house at Allahabad at the instance of Wazir Ahmad who had received some information that a brother of the plaintiff’s mother, a Shia, had been staying with the family at Mirzapore. It appears, moreover, that at this time plague was raging in Mirzapore and Qasim Hasan either persuaded or compelled the girl and her mother to go to Ibn Ahmad’s house at Allahabad where they remained till early in February 1918. There are certain letters on the record which show that the plaintiff’s mother was complaining to her husband that she and her daughter were living very unhappily at the house of Ibn Ahmad and finally Qasim sent a man to Allahabad who took the plaintiff and her mother away.
14. It may also be mentioned here that during this stay at Allahabad the correspondence shows that the plaintiff Amina Khatun was being taught her prayers with difficulty and that Ibn Ahmad was most unwilling to allow her to go away to Mirzapore because, as he said, her religious instruction would be interrupted. This matter about the religious instruction is important in connexion with another matter presently to be mentioned.
15. Some time after February 1918, Qasim Hasan gave up service in the United Provinces and went off to take up some employment in the Hyderabad State. The girl went with him and did not return at any time thereafter to the house of Ibn Ahmad. From correspondence which took place between Qasim Hasan and his father after this departure to Hyderabad it appears that efforts were being made to bring the girl Amina Khatun up in the Sunni faith and we think that there can be little doubt that Qasim Hasan, in order to please his father, was trying to get the girl to adopt the Sunni creed. It is plain to us that amongst other things he made her a disciple of a Sunni divine named Maulvi Abdul Bari.
16. We know very little of what took place between the years 1918 and 1925, but in the latter year Qasim Hasan seems to have got very ill and to have come to Delhi. There he was in poor health and circumstances and required medical attendance. He was trying to get pecuniary assistance from his father or his brother’s widow Mt. Ume Khudiaja, out of the profits of some property which belonged to his mother in which he claimed to have a share. The money seems to have been refused and in the end Qasim Hasan executed a deed of waqf of his share of this property of his mother’s. After this the present suit was lodged on 24th November 1925.
17. One of the first questions which arose for determination in the Court below was what was the religion of the plaintiff, Amina Khatun. In the plaint she described herself as following the Shia faith. This was denied on behalf of the defence. It was alleged that Mt. Amina before her marriage and after her marriage was a Sunni. Evidence was produced on both sides on this question and the Subordinate Judge eventually came to the conclusion that Amina Khatun was and is a Shia.
18. The question is vitally important in this case. As regards the validity of the marriage the case of the plaintiff must be decided according to her personal law and on the question of the validity of nikah there is a very marked difference between the Sunni and the Shia law.
19. We have therefore to examine the finding of the learned Subordinate Judge on this point. The question, as he says, was what was the creed of Mt. Amina Khatun before this ceremony of nikah took place. It is not now questioned that a marriage between a Shia and a Sunni is not invalid. It could not, therefore, be pretended that the nikah which took place in September 1917, between these two parties was for this reason not legally binding. The validity of the nikah however depends both upon the religion and the age of the plaintiff at the time the ceremony took place. There was before the Subordinate Judge a conflict of evidence regarding the plaintiff’s religion. Some ladies were examined to show that Mt. Amina Khatun said her prayers in accordance with the Sunni ritual. This evidence, as the Subordinate Judge remarks, is of a vague nature and the women who professed to have seen the girl at her prayers were not questioned as to the exact difference in ritual. One lady named Mt. Aijaz Batul stated that she knew Amina Khatun was a Sunni because she said her prayers with folded hands but as the learned Subordinate Judge states Shia women can also say their prayers in the same posture and consequently the statement of Aijaz Batul, even if it be taken as true, is by no means conclusive evidence to show that Amina Khatun was at that time a Sunni.
20. In cases of this kind oral evidence such as we find on the present record is of very little value. There can be no doubt that there is very strong feeling between the parties and that the direct evidence on both sides is of a partisan character. We think, we are on safer ground in deciding the case upon the circumstances and probabilities.
21. We would refer, in the first place, to the letter written by Ibn Ahmad to his father on 4th February 1918. This was written at the time that Qasim Hasan had sent a man from Mirzapore to Allahabad to bring away the girl and her mother. In this letter Ibn Ahmad writes:
I had no intention to send them at this time because it was with difficulty that the namaz was taught to her and she had been made to remember the first “para.” Now whenever they all will come here subsequently they will be taught from the very beginning. So long as they do not live hare permanently (i.e., continuously) for some time all the efforts shall remain fruitless.
22. We think the Subordinate Judge was entitled to rely very strongly on this passage and to come to the conclusion that the meaning of this passage is that the girl was being taught to say her prayers in some way she had not been accustomed to do before. It would hardly have been possible to write in this way about a girl who had already learned to say her prayers in Sunni fashion and the Subordinate Judge, therefore, concludes that before this time the probabilities are that she said her prayers as a Shia and that at the time of the nikah she was as a matter of fact a Shia. The girl was examined in the course of the trial in the Court below and there she made an admission that she had once said tabarrah. The meaning of tabarrah is well-known. It is the imprecation which the Shias use against the Sunnis and we think it certain that no Mahomedan who was really a Sunni would ever admit having pronounced the tabarrah.
23. We have referred above to what took place after the girl was taken away to Hyderabad and there seems to be little doubt, as we have already said, that her father Qasim Hasan in order to oblige Wazir Ahmad, was trying to bring the girl up as a Sunni and it was for that purpose that he got her made a murid or disciple of Maulvi Abdul Bari. All these facts indicated to the Subordinate Judge and they indicate to us that if all this trouble was being taken to teach Amina Khatun the elements of the Sunni faith she must have had another faith before that, namely, the faith of a Shia. If we consider these facts in relation to the probabilities of the case the conclusion that the plaintiff was a Shia at the time of the nikah is strengthened. We have already pointed out that her mother is admittedly a rigid Shia who has clung pertinaciously to her belief. It is not too much to suppose that in her childhood the girl would be much in the company and under the influence of her mother and it is highly probable therefore that Mt. Ashraf Bano would bring up her child in the Shia faith. So far as we can see, Qasim Hasan did not count for anything in this matter. He apparently is a man of weak character and we do not think that he made any attempts at any rate before the nikah, to interfere with the religious bringing up of Mt. Amina Khatun.
24. Having considered the circumstances of the case and the probabilities we are of opinion that the Subordinate Judge was entitled to find that the plaintiff was a Shia before the nikah. We have no doubt that the Subordinate Judge’s finding on this matter is correct. We have, therefore, to apply the Shia law in order to ascertain whether this ceremony of marriage, which was performed in September 1917, is binding on the plaintiff. That the ceremony was performed is a matter which is not denied.
25. The next matter to be determined is whether at the time of the nikah the girl was of full age, that is to say, had she attained the age of puberty and if she had attained that age what would be the effect of her father representing her as guardian at the ceremony of nikah? There can be no doubt that Qasim Hasan did give sanction on behalf of the girl to the marriage but the Subordinate Judge has found that no sanction was obtained from the girl herself: There is clear evidence on the record that her permission (Izn) was not asked before the ceremony was carried through. We have therefore to consider what is the Shia law relating to the age of puberty. The Subordinate Judge has stated that in the case of Shias the age of puberty begins with menstruation and under the Shia law the presumption is that menstruation takes place between the age of nine and ten years. There seems to be no doubt that this is the law as laid down in the Sharaya-ul-islam. We might also refer in this connexion to a case which was decided by their Lordships of the Privy Council in the year 1873, the case of Malka Jahan Saheba v. Muhammad Asghari Khan 26 W.R. Civil Rulings 26. If, therefore, there were no evidence of age in the case it would under this law be presumed that Mt. Amina Khatun had attained the age of puberty long before this nikah took place. We know the age of the girl definitely. She was, as we have said, born on 24th November 1904, and, therefore, she was all but 13 years of age when the nikah took place.
26. The Subordinate Judge has made a careful analysis of certain direct evidence bearing upon this point. The plaintiff herself, her father, her mother and a Hakim named Fazal-ul-Rahman all say that menstruation had begun before the year 1917. As against this the defendants put forward the statement of another Hakim named Fuzail Ahmad. We agree with the Subordinate Judge that this man’s evidence is of no value. Over and above this, all we think, it is in accordance with probabilities that the girl should have begun to menstruate before September 1917. There is the authority of works on medical jurisprudence. We may refer to the new edition of Lyons jurisprudence edited by Mody in which it is said that the rule in India is that girls begin to menstruate between the ages of 12 and 14. Having regard therefore to all the circumstances, we are of opinion that this girl had attained puberty before September 1917.
27. There being no pretence that her consent to the marriage was formally asked for before the ceremony took place, the presumption would be that the nikah was invalid and does not bind the plaintiff. It was argued, however, in the Court below and has been argued here that although the girl may not have given any formal consent to this marriage nevertheless her subsequent conduct amounts to evidence that she accepted the marriage and ought to be deemed a consenting party. In this connexion the Subordinate Judge has entered upon a long discussion regarding the nature of the consent which was given by the girl’s father. He has come to the conclusion that Qasim Hasan was deceived into agreement to this marriage by a promise made to him by Wazir Ahmad that in the event of the marriage taking place half of the property which had been given away to Ibn Ahmad would be restored to him, Qasim Hasan. We think any discussion of this question is really superfluous because if the girl had become adult at the time of the nikah the consent of her father could not take the place of her own consent which under the Shia law is essential.
28. We have, therefore, to consider whether there is before us any reliable evidence from which it could reasonably be inferred that Amina Khatun assented to this marriage.
29. In the plaint it was stated that it was only 2 1/2 years before the suit was brought that Amina Khatun came to have knowledge that any ceremony of nikah had been performed. It was admitted, however, in, the plaint that there had been rumours that a nikah had taken place. The story which was put forward in evidence on behalf of the plaintiff was to the effect that her father had kept both the plaintiff and the plaintiff’s mother in ignorance of the fact that a ceremony of marriage had been performed and that this matter only came to the knowledge of the plaintiff and her mother by reason of a letter which was written to the plaintiff’s mother some 2 1/2 years before the suit by her brother. The Subordinate Judge has disbelieved this part of the case and we disbelieve it too. We have already referred to the conflict regarding what took place on the night of 23rd September 1917. We have on one side the plaintiff and her mother swearing that they were not in Wazir Ahmad’s house at the time this ceremony was performed, on the other hand, we have detailed evidence to show that both the plaintiff and her mother were in the house, that the girl was dressed in bridal dress, that her father came in and informed her about the marriage, that the girl did not refuse to agree to the marriage but rather that she conducted herself in a manner to indicate that she was a willing party. The learned Subordinate Judge has characterized this evidence given on behalf of the defence as extravagant and improbable and on this point also we are in agreement with him. We feel that having regard to the relations of the parties we could not accept evidence of this kind which to our minds bears marks of elaboration and fabrication. We are quite prepared to believe that the girl and her mother remained for a few weeks in the house of Wazir Ahmad after this nikah had taken place and we cannot for a moment believe that either the girl or her mother were ignorant that such a ceremony had been performed. But while we are prepared to go so far, we are not prepared to hold that any conduct of the girl can be pointed to so as to justify the conclusion that he ever gave her consent or was willing to be married to defendant 1. The fact that she and her mother remained or were detained in the house of Wazir Ahmad for a fortnight after the ceremony took place is no evidence whatever that she was a willing party to the marriage.
30. Then we are referred to what took place in Allahabad in the month of December 1917 and January 1918. We have already referred to the events of that time and have stated how it is proved that the plaintiff and her mother were brought to Allahabad to the house of Ibn Ahmad very much against their will. For the defence it is said that the girl was there treated as a bride, that is, as the daughter-in-law of Ibn Ahmad and that some sort of a party was given by way of celebration of the nikah. Here again we feel we cannot rely upon the direct evidence to this effect given on behalf of the defendant. It is impossible to doubt from the correspondence on the record that Mt. Ashraf Bano was most unwilling to come to Allahabad and was most unhappy in the house of Ibn Ahmad and knowing that she was bitterly opposed to any marriage between her daughter and Ibn Ahmad’s son we find it difficult to believe that during her stay of five or six weeks in Allahabad this lady would in any way he party to any demonstration intended to indicate that Amina Khatun was the wife of Sibt Ahmad.
31. In this connexion we would refer to the letter written by Ibn Ahmad to his father on 7th January 1918. In this Ibn Ahmad writes as follows:
My Bhabi Jahn Saheba (i.e., sister-in-law), has since the date of her arrival been thinking of going away from this place as early as possible. Accordingly she has been finding out various excuses for this purpose.
32. We have no doubt therefore that Mt. Ashraf Bano and her daughter were very unwilling to remain at the house of Ibn Ahmad. We have referred already to the attempts which were being made during this period to teach Amina Khatun the Sunni ritual of prayer. Our conclusion is that it is impossible for us to find that any conduct of the plaintiff during the period just referred to affords any indication of her acceptance of the position of being the married wife of Sibt Ahmad.
33. We have already pointed out that after February 1918, the girl went off with her father to Hyderabad and we have no evidence of any conduct during the period between her going to Hyderabad and the time the suit was brought which would indicate that she was a consenting party to the marriage. It is true of course that the girl did not during this time take any active steps for the purpose of repudiating the validity of a nikah and it has been argued that in view of the great delay in bringing the suit the relief sought by her ought to be refused, it being within the discretion of the Court to withhold such relief. On the other hand, there is the consideration that the girl all this time was living with her father and in the circumstances it is not to be expected that she could have taken any action independent of him.
34. The letters from Qasim Hasan to his father written from Hyderabad indicate that he was still trying to establish friendly relations between his father and himself and for that purpose he was representing that the plaintiff was being taught the Sunni faith. It would, in our opinion, have been quite impossible for this girl to have taken any active steps at an earlier stage in order to obtain the declaration she is seeking in this suit. It is likely enough that the suit was brought after Qasim Hasan had quarrelled again with his father and had made a wakf of the property to which he claimed to be entitled as an heir of his deceased mother. However that may be, we are of opinion that the record does not afford any reliable evidence to show that Amina Khatun was ever willing to marry defendant 1 or has ever been willing since the ceremony was performed to acknowledge that she is lawfully wedded to him. We have come therefore to the conclusion that the Subordinate Judge’s judgment and decree must be maintained except in one particular now to be noticed. The Subordinate Judge in decreeing the plaintiff’s suit made Wazir Ahmad, the guardian ad litem of defendant 1 personally liable for the costs of the suit. It is complained in the memorandum of appeal that the Court below was wrong in awarding costs personally against Wazir Ahmad. We think effect must be given to this plea. We cannot find any authority in the Civil Procedure Code to award costs personally against a guardian ad litem and we may refer in this connexion to a decision of the Madras High Court, Narasimha Rau v. Lakshmipati [1881] 3 Mad. 263.
35. The decree of the Court below therefore will be varied by directing that the costs of the suit will be borne by defendant 1. With this modification in the decree of the Court below we dismiss this appeal with costs to the plaintiff-respondent.
