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Present: Wood Benton C.J. and Be Sainpayo J.MABIKAB v. MARIKAR et at.
407—D. c: Puttatam, 2,SIS.
.Muhammadan lout—’Marriage of lay of seventeen years ft/ age—Fatherand grandfather dead—Application by paternal uncle for injunctionto pregpnt matriage-rCourts Ordinance, 1889, s. 87—Is consent ofparents or guardian necessary to contract marriage?—Capacity tomarry—Age of majority.
Where a paternal unde of a Muhammadan boy of seventeen years of ageC whose father and grandfather are dead) applied for an in-junction to restrain the defendants from marrying the boy Cseconddefendant's son) to first defendant's daughter,—
Heldt the plaintiff was cot entitled to the injunction prayed for.
Wood Bshton CJ.—Even if the boy is to be regarded -as aminor for the purposes of marriage, the plaintiff is not his wati or.guardian for marriage.
^No relative except a father or paternal grandfather has the powerof contracting any marriage for a boy or a girl under the ageof puberty.
Ceteris paribus, capacity to marry under the Muhammadan lawis dependent on the attainment of puberty, provided that the pubeshas also reached the age of discretion.
There • is nothing in the provisions of section 1 of OrdinanceNo. 7 of 1865 (fixing twenty-one years as the legal age of majorityIn this country) that * can be regarded as altering the Muhammadan. law as to the effect of the attainment of puberty on the capacityto many.
Db Sampaxo J.—The Court has no power to grant the injunction prayedfor, as the alleged cause of action is not of the species ofinjury contemplated in section 87 of the Courts Ordinance.
According to Muhammadan law, not only has Cader SaiboMarikar (the bey) attained the age of “ majority" and becomecapable of contracting himself-in marriage, but the authority of the plaintiffas guardian, if any, has ceased.
fT^HE facts are set out in the judgment of I>e Sainpayo J.
.4. 8t. F. Jayewardene, for plaintiff, appellant.
Samarawic kreme (with him Arsectderaine),respondents.
for defendants.Cur. adv. naif.
December 16. 1915. Wood Bknton C.J.—o
. This case raises an interesting point of Muhammadan law. Theplaintiff, as the alleged wati or guardian for marriage of a boy CoderSaibo Marikar, brings this action for an injunction to restrain the
16?,3. A $908 (8/50)
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19t& defendants from marrying him to the first defendant's daughter,Vood & 8W Beebi. The second defendant is Coder Saibo .Marikar’sBhstow O.J. mother. The boy was bom on October 12, 1898, and has, of courseMa&artk “^^ahied the age of puberty. The plaintiff is his eldest paternalAfarito- ^ uncle, and he claims that, according te Muhammadan law theproposed marriage cannot take place without his consent. Thelearned District Judge dismissed the action with costs, and, in myopinion, his decision is right.
The locale Muhammadan Code of 1806 throws no light on thequestion. But it is – wall settled that, suhjeot to any customarymodifications of its provisions, the SUM law governs the status ofMuhammadans in Ceylon. Now it is dear that, even if Coder SaiboMarikar is to be regarded as a minor for the purposes of marriage,tiie plaintiff te not his. »oK. No relative except a father or paternalgraadfatiter has the power of contracting any marriage for a boyor a girl under the age of puberty1. The plaintiff’s action fails,therefore, on this ground alone. But, in my opinion, it fails uponanother ground also. Ceteris paribus, capacity to marry underMuhammadan law is dependent on the attainment of puberty, 'provided—a condition satisfied by the evidence in the present ease—that the pubes has also reached the age of discretion. There are nodoubt authorities to the effect that " puberty ” and “ majority ”are one and the same.3 But in so far as these dicta are accurate,they appear to me only to show that the age of puberty was regardedas a period of life with which legal capacity in its various formsmight be treated as coinciding. “As a matter of fact,” says Ameerjilt,* " the Islamic system recognizes two distinct periods of.majority,one of which haB reference to the emancipation of tile person of theminors from the patria poteetas, and the other to the assumption bythem of the management and direction of their property. Thesetwo periods are designated as bulugh and ruskd, the age of pubertyand the age of discretion. There are cases, however, in which a boyor a girl, may have arrived at puberty and may yet not be suffi-ciently discreet (possessed of understanding) to assume the directionof his or her property. In such oases the Muhammadan lawseparates the two ages of majority, and whilst according to the ■minor personal emancipation from the right of Jabr, takes care,in the minor’s own interest, jto retain the administration of his or herproperty in the hands of the legal guardian. If a minor should notbe discreet at the age of puberty, he or she is presumed to be so ont(ie completion of the eighteenth year, unless there is any directevidence to the contrary ”.
The principle of two distinct periods ’of majority is expresslyrecognized in the Indian Majority Act, 1875.4 I do not think that
1 Wilson's Digest of Anglo-Muhammadan a Hedaya 482, booh 88, chapter 2.
Law, third edition, p. 410, s. 408.* Fol. //, pp;' .487 and 488.
* Act IX of 1876.
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there is anything in the provisions of 'section 1 of Ordinance No. 7 * *3815*of 1865 frring twenty-one years as the legal age of majority in this "wootfColony that can be regarded aa altering the Muhammadan law asC.J
to the effect of the attainment of puberty on th% capacity to many, jftrrffitr*.The decision of the Supreme Court in Muffiiah Chgtty v. Dinginya,1 Maribarthat a Kandyan woman under the age of twenty-one years does not,by virtue of her marriage, become capable of entering into andbinding herself by a contract, is no authority by way ol analogy forany. such proposition.' If we were to uphold the contention of*counsel for the plaintiff on this point the result would be curious.
Capacity to^many is acquired in the case of Kandyans at the ageof. sateen as regards males, and twelve as regards females.3 TheMarriage Registration Ordinance, 1907,9 validates marriages, so faras age is concerned, the male party to which has completed sixteen,or the female twelve, or, if a daughter of European or Burgherparents fourteen years of age. The Muhammadan MarriageRegistration Ordinance, 1886,4 contains no express provision uponthe subject. But section 17 of that Ordinance enacts that “ nothingcontained in it shall be construed to render valid or invalid, merely •
.by reason of its having been registered or not having been registered,any . Muhammadan marriage which would otherwise be invalid, orvalid/’ It would be singular if the Legislature, after having madeprovision for the attainment of capacity to marry in all other casesat an age practically coincident with, or at'least not far removedfrom, that of puberty, were to Be held to have in substance postponedthe age of puberty in the case of Muhammadans to that of ordinarylegal majority. The provisions of the Muhammadan MarriageRegistration Ordinance, 1886,4 seem to me to corroborate theconclusion, at which I should have otherwise arrived, that no resultof this kind was intended or has been brought about.
. On these grounds I would dismiss the appeal, with costs.
Db Sahpayo J.—
This is an extraordinary ease, both in respect of its constitutionand purpose and in respect of the point of law which it raises. Theplaintiff is the paternal uncle of a minor, 'Cader Saibo Marikar,whose mother is the second defendant. The first defendant is thefather of a minor named Beebi. It is admitted that Cader SaiboMarikar is in his seventeenth year and has attained puberty. Theage of Beebi is not disclosed, but there is no dispute that she,though a minor, is of a marriageable age according to Muhammadan'law. Both tiie tether and paternal grandfather of Cader SaiboMarikar are dead. It appears that the first defendant and thesecong defendant have arranged a marriage between Cader Saibo
j (1907) 10 IV. L. It. m;* No. 19 of 19071 *. IS.
3 Amended Kandyan Marriage Ordinance,4 No. 8 of 1886.
1870, s. 12.
( m )IW&* 0 Marikar and Beebi, and the'* plaintiff, alleging that he is “ the3b &umvo guardian for marriage ” of Coder Saibo Marikar, and ua aueientitled to contract a marriage fo» him, and that the. •proposecMarites? marriage, which has0 been arranged without the plaintiffs consent.
MaHbssr injurious to the.interest^ of Coder Baibo Marikar and in violatibtof the ©pIanitifTs rights, asked for an injunction to restrain thedefendants from marrying the first defendant's daughter Beeb:to the said bader Baibo Marikar. The defendants deny that theplaintiff is (J&der Saibo Marikar’6 guardian for marriage, or thanCoder Saibo Marikar requires any such guardian, or that theplaintiff's consent is necessary for the proposed marriage-
It will be noticed that the persons chiefly concerned, namely, the° two minors, are not parties to the action, and I fail to see how acase so vitally affecting them cati be determined in their absence.But, apart from that, it is a serious question whether a Civil Courthas jurisdiction to interfere in such a matter as this. The minorsare not wards of Court, and any marriage between them does notcome within its ordinary cognizance, and no case has been cited toshow that the. Court can prevent a marriage between minors at the■ instance of a private individual. Under section 87 (1) of theCourts Ordinance the Court has power to grant an . injunctionrestraining any act the commission of which “ would produceinjury to the plaintiff, ” In my opinion the plaintiff's allegedcause of action in this case is not of the species of injury contem-plated in that section. If, m alleged, the proposed marriage isinvalid without the consent or concurrence of plaintiff as guardianor • wait, the partied immediately concerned may run a risk, butI have grave doubts as to the plaintiff's right to invoke the inter-vention of the Court to prevent the marriage. This appeal may,'however, be disposed of on the question of Muhammadani Law,which alone has been decided by the District Judge, namely,whether in the circumstances of this case the plaintiff is the guardianfor marriage of Cader Saibo Marikar, and whether his concurrenceis necessary for the proposed marriage.
I shall assume for the purpose of this case that the pure Muham-madan law on the point raised is applicable, though I entertaina doubt whether it has ever been adopted here, or is a part of thecustomary law locally observed.
The rule, according to the doctrine of the Shafie sect, to whichthe Ceylon Muhammadans belong, appears to be that a male minorcan contract & marriage, without the assistance of the parents orguardian, when he attains puberty, but if he is below that1 age ofmaturity, then the marriage can only be contracted by the fatheror paternal grandfather, or in their absence by certain agnaticcollaterals. If the marriage is contracted by the father or grand-father, the contract is absolutely binding, hut if it be contractedby the other relatives referred to* the miuor has the " option of
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piiberty,” that is to say, he is at liberty to repudiate the marriage f91K.whan he .attains puberty. In this connection it may be noted that Dl4 ain both these oases the functioned the guardian for marriage is n$t J.merely to give consent as Understood in other systems of law, but Monitor«.he is the contracting party, and, as it were, marries on behalf of the 'Marik&rminor. This circumstance has, I think, an important beaijng onthe question. For the reason why the intervention of the guardianfor marriage is required appears to be that the minor'cannot con-tract himself in marriage, and therefore needs some one else tocontract it for him. Now, the age of capacity is the attainment ofpuberty, whjph is settled at fifteen years of age. This is sometimes. spoken of as the age of majority also, because, as a rule, capacity andmajority coincide. But it is clear from the recognized text-bookson the Muhammadan law that they are not necessarily the same,and that there are, so to speak, two kinds of majority:, one ismajority for the purposes of marriage and is the same as puberty,and the other is majority in the general sense, which is conditionalon the possession of “ discretion ," that is to say, sufficient judgmentfor managing property and conducting business. The latter kindof majority cannot be attained before fifteen years of age, and maynot be even then, if the minor has no “ discretion.” As authorityfor the above propositions I may refer to Tyabji'a MuhammadanLaw, pp 56, 89, and 95; Ameer All’s Muhammadan Law, vol. I., p.
41, and vol. II, pp. 467 and 468; Wileon’e Anglo-Muhammadan Law,pp. 98, 170, and 171. According to Muhammadan law, therefore,not only has Cader Saibo Marikar attained the age of ” majority ”and become capable of contracting himself in marriage, but the .authority of the plaintiff as guardian, if any, has ceased. But some,difficulty arises out of .the provisions of the Ordinance No. 7 of 1885,which fixes the legal age of majority at twenty-one years. In myopinionn the Ordinance has regard only to the attainment of legalmajority for general purposes, or the majority which under theMuhammadan law is conferred by " discretion.” and does notaffect the age of capacity for purposes of marriage. Under theMarriage Ordinance applicable to persons generally in Ceylon, thecapacity to contract a marriage is acquired before tvrenty-one years,but consent of parents or guardians is required up to that age.
But as Muhammadans are expressly exempted from the operationof that Ordinance, no such consent is required in their caBe, providedthat the age of capacity 'as determined by the Muhammadan lawhas been reached'.
In my opinion the appeal 'fails and should be dismissed, with costs.
MARIKAR v. MARIKAR et al