Mt. Ghulam Kubra Bibi v. Mohammad Shafi Mohammad Din (1940)

Under Muslim law a marriage is a contract, and a contract needs the woman's consent. This is the decision that makes the requirement real. A husband who could not show that anyone had ever asked the woman whether she agreed lost his suit for restitution of conjugal rights, because no valid marriage had been proved at all. It is the case to cite on the formal essentials of nikah and on who bears the burden of proving them.

The husband sued the woman for restitution of conjugal rights and also impleaded her parents, asking for an injunction restraining them from interfering in his marital relations with her. Her defence was that she was never married to him. There was also a question whether she was of age at the time.

The evidence was thin. The Mullah who read the nikah said he did so at the instance of the girl's grandfather, and categorically denied that anyone had been sent to the girl to ask whether she agreed to the marriage. One witness deposed vaguely that there were two witnesses to the nikah but did not name them. Two men produced as witnesses said only that they were witnesses of the nikah and gave no detail of what they did; one admitted he was the plaintiff's neighbour, and the other did not deny that the plaintiff had been working with him for eight or nine years.

It was on record that the girl was seventeen when the marriage was solemnised. The trial judge held she was of age and that the marriage was proved, and decreed the suit with the injunction. The District Court maintained the restitution decree but set aside the injunction. Both sides appealed further; before the Additional Judge both parties had admitted she was of age at the time.

No valid marriage had taken place, and the plaintiff therefore had no right to sue for restitution of conjugal rights. Her appeal was accepted and his suit dismissed with costs throughout; his appeal for restoration of the injunction was dismissed.

1. State the essentials. Under Muslim 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 that the agreement be witnessed by two adult witnesses.

1. Describe the customary procedure by which consent is obtained. Because women observe pardah in that region, it is customary to send a relation of the woman to her inside the house, accompanied by two witnesses. Within the hearing of those witnesses the relation asks her whether she authorises him to agree to the marriage on her behalf for the dower offered, and explains the detail of the proposed dower. When she says yes or otherwise signifies consent, the three come out. The bridegroom and the three are placed before the Mullah, who asks the man whether he offers to marry her on payment of the specified dower; he says yes. The relation then says he is her agent, and the Mullah asks whether he agrees on payment of the specified dower; he says yes. The witnesses are present so that the Mullah, if in doubt, may question them whether the relation is a duly authorised agent. Once both sides have said yes the Mullah reads the scriptures and the marriage is complete.

1. The bare assertion of witnesses proves nothing. The judge set out that procedure precisely to show that a vague allegation that there were two witnesses of the nikah has no value, and that it must be proved that the whole procedure was gone through — the more so where the man who read the nikah is positive that no one was sent to the girl to ask whether she was a willing party.

1. Explain, but do not excuse, what probably happened. Under Muslim law a girl becomes major for the purposes of marriage on reaching puberty, presumed at fifteen. The parties appear not to have known this and to have assumed she was a minor until eighteen, which is why she was given away by the grandfather and not personally consulted. Where a girl is a minor it is permissible for her father, grandfather or other paternal relations to give her away, and the marriage is a valid nikah all the same.

1. But that form of marriage needs witnesses too. Such a nikah also requires two adult witnesses, and the witnesses here said only that they witnessed the nikah. Who knows whether they were not witnesses of the giving away of the girl by the grandfather? The ambiguity was fatal.

It opens the question of the essentials of a Muslim marriage: proposal and acceptance at one meeting, free consent, and two adult witnesses. Use the described procedure to show how consent is obtained where the bride is in pardah, and to show what must be pleaded and proved.

It disposes of the argument that producing two men who say they witnessed the nikah establishes the marriage, and the argument that a husband may enforce conjugal rights on the strength of a ceremony the bride was never consulted about.

It does not decide that a marriage contracted for a minor by her guardian is invalid — the judgment says the opposite — and it does not deal with the minor's later right to repudiate on attaining puberty, for which the decision on the option of puberty should be read alongside. Note also that on the facts she was above the age at which, under this law, she was competent to consent for herself; the statutory prohibition of child marriage now supplies a separate and general control on age.