On this question, the case of ‘Aziz bano v. Mohammad Ibrahim Hussain’ is considered an important authority. The judgment was delivered by ‘Justice Sulaiman and Justice Mukerji’ as a judge of Allahabad High Court.
Facts of the Case
The matter of ‘restitution of conjugal rights’ came before the court in an appeal where the husband who was Sunni claimed the rights to bring back his wife who was Shia.
On this claim, the defense of the wife was that she was not aware of the alleged marriage, her father had never consented to it, and she being a Shiah and the plaintiff being a Sunni, no legal valid marriage could have been contracted and, lastly, that on attaining puberty she had repudiated the marriage.
The questions for consideration
The points raised by the wife side were that-
(1) that under the Shiah Law the marriage of a Shiah woman with a Sunni husband was illegal and nullity and
(2) that, in any case, such marriage was void able.
Court’s analysis on authorities
The court noticed that If the first question were to be answered on the authorities of Shiah Law available in the English language, the answer can only be in the negative, that is to say, that a marriage between a Shiah woman and a Sunni husband is not illegal.
Divergent of Opinion but conclusive point is equality
There can be no doubt that there has been a divergence of opinion among the Shiah jurists. According to the one set of commentators the equality in respect of Islam is the only condition necessary for the validity of the marriage.
According to another set equality in Islam alone is not sufficient but there must also be the equality in Iman (faith). Iman in the Shiah text-books is used in a special sense so as to distinguish the Shiahs from Sunnis or other sects of Islam.
Baillie’s Digest on Shia law
Baillie’s digest on Mohammadan law is considered a very important authority on muslim law.
Mr. Baillie’s Digest of Muharnmadan Law, Vol. II, is composed mainly of translations from the Sharaya-ul-Islam which had been made and published at the suggestion and with the aid of the Nawab Saiyed Muhammad Husain, Khan Bahadur, Tuhawur Gunj who was himself a Shiah. Mr. Baillie had also access to the Digest of Shiah Law compiled under the superintendence of Sir William Jones.
At page 34 of Vol. II Mr. Baillie states as follows:
“Equality is a condition in marriage, that is in respect of Islam, or the general profession of the Mussalman religion. Whether it is also a condition in respect of Iman, or true belief is a question of which there are two traditions; but according to the most notorious or generally received of these, equality in respect of Islam is all that is required.”
Ameer ali’s book on Mohammadan law
Again, Ameer ali’s work on Mohammadan law also carries a high weight in considering the question related to muslim law of either sect.
Mr. Ameer Ali in preparing his Muharnmadan Law of the Shiah School has made use of Mabsut, Nihaya, Istibsar, Intisar, Hidaya, Sarair Ghunia, Sharaya-ul-Islam, Jawahar-ul-Kalam, Jama-ush-Shitta and Siratun Nijat (vide Vol. I, page 32).
In Vol. II at page 416 his conclusion on this disputed point of Shiah Law is:
“Islam and ability to support the wife are the two necessary conditions to constitute a well assorted marriage. A Muslim possessed of sufficient means to maintain a wife may among the Shiahs marry any Muslim woman without question of lineage or rank.”
This statement of the law is based on the authority of Sharaya and Jama-ush-Shittat. Again at page 450 he remarks:
“As regards equality two conditions alone are insisted upon (i) equality in respect of Islam, in other words, the general profession of the Islamic religion and (ii) ability to support the wife. At page 37 he has remarked generally;
“Sunnis and Shiahs may validly intermarry without any change of sect or communion.”
Tyebji’s work on muslim law
Mr. Tyabji in his Principles of Muham-madan Law, para. 80, when considering whether a marriage should not be avoided on the ground of inequality, says that the Shiah Law requires equality only in regard to Islam.
Syed Gholam Hosain Choivdury v. Setabh Begam
In the case of Syed Gholam Hosain Choivdury v. Setabh Begam 6 W.R. 881, a Bench of the Calcutta High Court had to decide the question as to whether a Sunni could marry a Shiah woman. They remarked that they could nowhere find that a Sunni was incapacitated from marrying a Shiah and accordingly held that, the marriage was good.
Expert as a witness in personal law
On the validity of expert witness’s thoughts on personal law related to marriage, the court said,
“The Shiah Law on marriage is the law of the land and is in force in British India. It can by no means be called foreign law, nor such is a science or art within the meaning of that section. It is the duty of Courts themselves to interpret the law of the land and apply it and not to depend on the opinion of witnesses howsoever learned they may be. It would be dangerous to delegate their duty to witnesses produced by either party. Foreign law, on the other hand, is a question of fact with which Courts in British India are not supposed to be conversant. Opinions of experts on foreign law are therefore, allowed to be admitted.”
If divergent opinions of scholars whose authority will be considered?
The court said,
“it is the duty of Courts, in cases of divergent opinion, when it seems impossible to ascertain the comparative merits of the authorities, to accept the view which is more in accordance with equity, justice and good conscience. Mr. Ameer Ali in his preface, to the Third Edition at page 7 has referred to the important rule to which attention had been called by Sir William Jones, that “when the great expounders of Musalman Law have enunciated divergent doctrines or expressed different opinions, the Judge administering Musalman Law is to adopt the one most conformable to equity and’ the requirements of the times.”
Mr. Tyabji also in his book on Muham-madan Law, para. 11(a) pointed out
“when Musalman jurists of authority have expressed dissentient opinions on the same question the Islamic Courts presided over by Kazia have authority to adopt that view which in the opinion of the presiding officer is most in accordance with justice in the particular circumstances.”
Decision on the first question
The court decided that, the marriage of a Shiah woman with a Sunni husband is not absolutely illegal so as to make it void.
Second question- whether it is voidable?
The second question was whether such a marriage is, voidable even though contracted by the father?
Mr. Ameer Ali, in his Muhammadan Law, Vol. II, page 420, has of the authority of Jamaa-ush-Shittat remarked:
“When the contract is entered into by the father or in his absence by the nearest living paternal ancestor, the minor whether male or female has no option on attaining puberty unless the contract is to the manifest disadvantage of the minor or has been carelessly or wickedly Entered into, e.g., when the father of girl has married her to a lunatic or an eunuch or if a boy has married him to a female which is unfit for connubial intercourse or has bound him to pay a dower which is utterly beyond his, means, the contract is subject to the minor’s option on attaining puberty. These examples are no means exhaustive.”
Mr. Tyabji in para. 70 of his book says:
“The authorities of all sects of Muhammadan Law are agreed that where a father or paternal grandfather fraudulently negligently contracts his minor child grandchild in marriage, it is voidable at the option of the minor, on his or her attaining majority.”
Further in para 72 he has stated that the more approved Shiah doctrine-is that the marriage contracted by a father or paternal grandfather on behalf of his minor child or grandchild is voidable by the minor on his attaining majority, if the father or grandfather has agreed to an improper dower.
Divergence in Opinions
There is no doubt that even on this question there is some divergence of opinion and there are two traditions as to whether the marriage contracted by the father is or is not absolutely binding.
The court considered that,
“Mr. Baillie’a Digest, though it states that according to the more approved of the two traditions a young girl who has been given away in marriage by her father has no option after attaining puberty, does not expressly consider the case where the marriage is to the “manifest disadvantage of the minor or has been carelessly or wickedly entered into. As to this contingency the book is silent. Whereas both Mr. Ameer Ali and Mr. Tyabji have, as already mentioned, expressed the view that even in the case of a marriage performed by the father there is no absolute finality, it would be in accordance with equity, justice and good conscience to accept the tradition which saya that in certain special cases there is an option left to the minor boy or girl even though the marriage has been performed by the father or grandfather.”
The court further said that,
“It seems to me that if a minor Shiah girl has been given away ill marriage by her father while of nonage, when it was impossible for her to have any voice in the matter, and on attaining puberty she considers the marriage to be repugnant to her religious sentiments and grossly disadvantageous to herself, it would be contrary to all rules of equity or justice to force such marriage on her and thereby compel her to live with a person who is abhorrent to her.
When her religion. says that such a marriage is abhorrent she must be allowed the option to repudiate it if any option can ever exist. Had she allowed the marriage to be consummated, or in some other way ratified the marriage, then her option of puberty would have been gone and the marriage would be a perfectly valid marriage and her issue legitimate. But in this case it is an admitted fact that there has yet been no consummation at all.”
Decision the court
Justice Sulaiman, while deciding the case, held that,
- the marriage of a Shiah woman with a Sunni husband, if entered into when the parties are of age or if performed by her guardian and ratified by her on attaining puberty, is valid and legal and her offspring are legitimate,
- such a marriage, if performed by her guardian, no matter whether he is the father or the grandfather, is capable of being repudiated by her on attaining puberty because it may affect her religious sentiment and may, therefore, be mid to be to her manifest disadvantage. This is a liberal view to take and is obviously in accordance with justice, equity and good conscience as well as the requirements of the times.
- even if a decree for restitution of conjugal rights could have been passed, it would have been almost a futile one as under the amending Act XXIX of 1923, the defendant cannot even be detained in prison for disobedience of a decree for restitution of conjugal rights.
- though the Homage was not illegal, yet the defendant, had an option of repudiation which has been duly exercised, and that, in consequence, the marriage tie no longer subsists. She will of course have no longer any claim for any dower.
Aziz bano v. Mohammad Ibrahim Hussain 1925, 89 Ind Cas 690
 89 Ind Cas 690