Macpherson, J.@mdashIt appears to me that I ought not to make any order in this matter affecting the custody in which the infant now is. The habeas corpus was granted upon an affidavit of Michael Cohen, the father of the infant, who states that the infant is in the custody of Mirza Mahomed Saleh, who claims her as his wife. The chief ground on which the alleged marriage is impeached in the affidavit is that the marriage (if any) took place without the consent of Cohen, the father of the infant, and is therefore necessarily void. The affidavit does not state, as it certainly ought to have done, that the question now before me was raised between the parties interested a fortnight ago in the Police Court. The return to this writ shows that Cohen and his wife the infant''s mother having carried her off from Mirza Mahomed Saleh''s house, the latter made a complaint against them at the Police Court under s. 31 of Beng. Act IV of 1866, and that the question as to the marriage having been raised, the Magistrate took evidence on the subject, and found as a fact that a marriage had taken place, and that the infant was the wife of Mirza Mahomed Saleh. The Magistrate accordingly ordered the infant to be given up to Mirza Mahomed Saleh, her husband, which was done.
2. Cohen and his wife have taken no steps to set aside the order of the Magistrate, and when the habeas corpus was applied for, I was not informed of the fact of any such order having been made by the Police Magistrate, or of his having found that there was a valid marriage.
3. The point on which Cohen in his affidavit relies as necessarily invalidating the marriage, is that his consent was not given. I am clearly of opinion that so far as concerns the marriage of his daughter, a Mahomedan, to Mirza Mahomed Saleh, who is also a Mahomedan, Cohen was not the guardian of the daughter, he being an apostate from the Mahomedan faith. His consent consequently was not necessary. And he being an apostate, the mother''s consent, she being a Mahomedan woman (which was in fact given), is sufficient.
4. Another point has been raised in argument before me, namely, that the mother and not the husband is the proper guardian of the infant, who is about ten years of age and has not reached puberty; and the decision of Norman, J., in the case of
(1) Beng. Act IV of 1866, s. 31.--"Upon complaint made to a Magistrate on oath of kidnapping, abduction or detention of a woman or of a female child under the age of fourteen years, for any unlawful purpose, such Magistrate may, on satisfactory proof of such detention, make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge or government of such child, and may compel compliance with such order, using force if necessary."
(2) Before Mr. Justice Kemp and Mr. Justice E. Jackson.
The 4th June 1868.
Sheikh Kaloo (one of the Defendants) v. Sheikh Guriboollah (Plaintiff).*
Mahomedan Law - Marriage of Infant--Consent--Guardian.
Baboo Debender Narayan Bose for the appellant.
The respondent did not appear.
The judgment of the Court was delivered by
Kemp, J.--This was a suit for the dissolution of a marriage as contracted without the consent of the legal guardian of the lady who is a minor. The plaintiff is the brother of the lady''s grandfather and he is now in jail under conviction of murder.
The first Court dismissed the suit. In appeal the Principal Sudder Ameen, Moulvi Mussootoollah, has decreed the suit.
The Principal Sudder Ameen held that it was provided by the Mahomedan law that if a minor be married by such a guardian as a mother in the presence of a nearer guardian, such marriage would not be valid unless it receive the sanction of the nearer guardian.
The effect of the Principal Sudder Ameen''s decree is that the plaintiff is at liberty to contract a marriage for the lady with somebody else.
The nearest guardian now living of the minor is undoubtedly the plaintiff, but he has never taken any interest in the minor and has hitherto deserted her. Moreover he is in jail, and it is not probable that he will ever come out of jail. The plaintiff being precluded by his absence from acting, the marriage contracted by the mother and grandmother of the minor is lawful--Baillie''s Mahomedan Law, 40.
The present marriage is not represented to be an unsuitable one, and we see no good reason for declaring it to be anything but a valid marriage.
We reverse the decision of the Principal Sudder Ameen and restore that of the first Court.
* Special Appeal, No. 2865 of 1867, against the decree of the Officiating Additional Principal Sudder Ameen of Mymensing, dated the 6th August 1867, reversing a decree of the Munsif of Nickly, dated the 2nd February 1866.
