Write a short but critical note on Guardianship in marriage.

Question: Write a short but critical note on Guardianship in marriage. [BJS 1984]

Find the question and answer of Muslim Law only on Legal Bites. [Write a short but critical note on Guardianship in marriage.]

Answer

The right to contract a minor in marriage belongs successively to the (1) father, (2) paternal grandfather how high ever, and (3) brother and other male relations on the father's side in the order of inheritance enumerated in Table of Residuary. In default of paternal relations, the right devolves upon the mother, maternal uncle or aunt, and other maternal relations within the prohibited degrees. In default of maternal kindred, it devolves upon the ruling authority.

A Single Judge of the Allahabad High Court in Ayub Hassan v. Mst. Akktari, AIR 1963 All 525, held that the marriage of a minor contracted by a remoter guardian when a nearer one was present and available and when the latter did not consent or subsequently ratify the marriage was void, and the consummation would not validate such a marriage.

It is submitted that want of objection on the brother's part was perhaps tantamount to consent.

In Mohd. Nihal v. State,(2008) 4 Crimes 650, a Muslim male of 22 years of age married a Muslim girl whose age was the cause of controversy, both factual and forensic. Actually, the brother-in-law of the bride had acted as her guardian (wali) even though the father and mother of the girl were alive. In the affidavit submitted by the husband, the age of the wife was shown as 19 years and his age as 22 years. The mother of the wife filed an FIR and refused to hand over the custody of the wife to the husband.

The Delhi High Court observed that under Muslim Law, the marriage of a girl who has not attained puberty is nevertheless legitimate provided it has the consent of her guardian (wali). In such cases, however, the wife can repudiate the marriage when she reaches puberty.

The Court further observed that the father, and in his absence, the paternal grandfather, could perform the rights, duties, and obligations of a wali. A brother-in-law cannot perform this important function. Medical tests, however, unequivocally indicated that the wife was not 19 years of age.

Thus the Court held that the marriage of a minor Muslim woman who has not attained puberty without the consent of her wali is completely void. Further, irrespective of her consent, during the lifetime of the father no other relative is competent to function as the wali.

In Monijan v. District Judge Birbbhum,(1915) ILR 42 Cal 351, it was observed that the fact that a guardian has been appointed by the Court of the person of a minor does not take away the power of the guardian to dispose of the minor in marriage. But the minor being in such a case, a ward of the Court, the guardian for the marriage should not dispose of the minor in marriage without the sanction of the Court to the proposed marriage.

It is a settled principle of Islamic Law that once the girl becomes major, she has the absolute right to contract the marriage and this right cannot be exercised by anyone including the father of the girl. It is only in the case of a minority of the girl that 'wali jayaz' can contract her marriage. This position was clarified in Abdul Ahad v. Mt Shah Begum and Ors, A.I.R. 1997 J.&K. 22.

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