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1870

IN THE MATTER OF

the question being merely who was the proper guardian for the

girl. The age of minority is up to sixteen or puberty, and Kuatija Bibl. until then the custody is in the mother. Neither consum

mation of the marriage nor puberty is shown by the affidavit in support of the rule, nor is it alleged that she is kept from her husband against her will. The custody of a girl is in the mother until puberty, even though she is married—Hedaya Book IV., Chapter XIV., page 388; Baillie's Mahomedan Law, page 434. The husband is by Mahomedan law not liable for his wife until she has arrived at a marriageable condition. — Hedaya, Book IV., Chapter XV., page 394.

A husband can maintain a suit for recovery of his wife, and this would be his proper remedy here--Baillie's Digest, page 54.

Mr. Mendes was heard for Mowlah Baksh.

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Mr. Hyde, in support of the rule, contended that the proper course had been taken by asking for a writ of habeas corpus. The husband is the legal guardian of his wife. He was lawfully married to her and lived with her for nine days, from which consummation must be presumed. The Penal Code makes ten years the limit under which a man cannot have connexion with his wife; before that age consent is immaterial. This girl is above the age of ten. The proper course is to order her to be delivered over to her husband-Macnaghten's Mahomedau Law, page 575.

The rule was made absolute, and a writ of habeas corpus issued.

The return to the writ stated :

That Khatija Bibi was a Mahomedan infant under the age of sixteen years, that is, of the age of about eleven years ; that she had not attained puberty, and was not fit for sexual intercourse ; that Jewa Sallay, her husband, had not paid or tendered auy sum as dower; and that Khatija Bibi was residing with Assa Bibi, her mother and natural guardian, and was unwilling to return to her husband.

In obedience to the writ, Khatija Bibi was brought into Court, and application was then made that she might be delivered into the custody of her husband,

1870

IN THE MATTER OF

:

Mr. Woodroffe for Jewa Sally.—The return is no answer to an application by a husband for restoration of his wife. By Mahomedan law the husband has dominion over his wife : see Khatija BIBI. Moonshee Buzloor Ruheem v. Shumsoonissa Begum (1) Macnaghten's Mahomedan Law, page 215. There seems to be some difference of opinion as to the age at which a marriage may be consummated, some saying the arrival of the girl at puberty, others when she has attained the age of nine--Baillie's Mahomedan Law, page 54. The girl here is eleven years of age, but the

, question is immaterial here, for we contend that the husband is entitled to the custody of his wife in any case, and he need not allege any particular reason for wishing her to return to him. As to the proper custodian being the mother, it appears to be so by Hedaya, Book IV., Chapter XIV., page 388; but here the husband has by his own act substituted a guardian, viz., the mother. This passage of the Hedaya, too, refers only to contentions be

, tween the husband and wife as to the custody of the child : see In the matter of Tayheb Ally (2). There are three conditions of marriage in Mahomedan law: discretion, puberty, and freedom of will.

A wife may be made over to her husband before she arrives at puberty; but it is one of the essentials to the validity of a marriage that she should have arrived at puberty. This case must be decided by Mahomedan law, and by that law, if the Court is in doubt, evidence must be gone into as to whether the girl has arrived at puberty or not.—Baillie's Mahomedan Law, page 54. [NORMAN, J., refers to In re Carus Wilson (3) as to contraverting the return]. The allegation in the return that no dower has been paid is irrelevant, as no agreement to pay dower is shown, and it is not essential to the validity of the marriage-Hedaya, Book II., Chapter III., page 122. Dower, may be prompt or deferred, but it is not stated which it was to be in this case.

It is alleged that the girl is unwilling to return to her husband, but this also should be matter of evidence. The tests of consent by Mahomedan law are various, and opportunity for putting these tests to the proof should be given-Baillie's

(3) 7 Q. B., 1008.

(1) 11 Moore's I. A., 551. (2) 2 Hyde, 63.

1870

IN THE MATTER OF

Mahomedan Law, pages 55-60. The simple question is whether

the husband is entitled to have possession of his wife. The effect Khatija BIBL. of the passage in Macnaghten's Mahomedan Law, page 215, is

to place her under the dominion of her husband; and there is nothing in the return to show that she was justified in leaving him, or there would be anything dangerous or injurious to her caused by her residence with him.

Mr. Hyde, on the same side.-In England, a girl was by law capable of contracting a marriage at twelve years old, and after the marriage the husband has full dominion over his wife-Blackstone's Commentaries, Vol. 2, page 256. The guardianship of the mother by Mahomedan law only exists for the purposes of education and marriage. The husband may exercise dominion over his wife though no consummation of the marriage has taken place.--Hedaya, Book II., Chapter III., page 124. The custody of a girl cannot be in the mother after marriage; it is either in the father or the husband; and the father has given her in marriage, so that the husband is the proper guardian-Macnaghten's Mahomedan Law, page 217, paragraph 18. In a somewhat similar case to this, Wells, J., allowed the husband and wife to have a private interview in which they came to a voluntary agreement to cohabit. The return need not be taken as absolutely true. Evidence may be taken to ascertain the truth-In re Carus Wilson (1). The case here is different, for there have already been affidavits before the Court contradictory to the return.

Mr. Kennedy, for Assa Bibi.—The question here is as to the validity of a return to a writ of habeas corpus. Such a writ is unknown to Mahomedan law, which cannot therefore govern this return. By English law a return to a writ of habeas corpus may be met by confession and avoidance, but cannot be controverted-Bacon's Abr., Title, Habeas Corpus, page 135. In this case the questions are as to who is the legal guardian of the girl, and whether she has arrived at the age of puberty. The

(1) 7 Q. B., 1008.

1870

IN THE MATTER OF

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writ of habeas corpus is given exclusively to vindicate the personal liberty of the subject and not in order that the individual rights of private individuals to the custody of any person may be tried. By Kuatija Bibi. English law the detention of the wife, without the consent of the husband, is detention against her own will, she being presumed to be under his control. Thus in such a case the writ might be

. applicable. But by the Mahomedan law the right of the husband and wife are perfectly distinct in every relation of life. The mother is the proper guardian of her female children until they arrive at puberty-In the matter of Tayheb Ally (1), Hedaya, Book IV., Chapter XIV, page 385. It was contended that the passage in the Hedaya, Book IV, Chapter XIV., page 338, refers to cases only where the dispute is between the husband and wife for the custody of a child, but this is not

The earliest age at which consummation is legal is fixed by the Penal Code, section 365, to be ten years—a wife being under that age her husband would commit rape by consummating his marriage. A wife is not entitled to maintenance from her husband if she is too young to be capable of generation.Baillie's Mahomedan Law, page 437; Hedaya, Book IV., Chapter XV., page 394; unless she is incapable through sickness. Her mother is her proper guardian-Baillie's Mahomedan Law, page 434. The husband must pay the dower before he can claim his wife, and in cases where the dower is not fixed, the wife is entitled to her proper dower-Baillie's Mahomedan Law, page 124-125. If the wife is not of years of discretion, the custody of her is in the mother; if she is at years of discretion, the remedy for a Mahomedan husband wishing to obtain possession of her is not by habeas corpus.

The Mahomedan law in every state of life recognizes a distinction between the rights of the husband and wife: see the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum (2).

Mr. Evans on the same side. -A writ of habeas corpus is a proceeding simply intended to vindicate personal liberty not only in criminal cases but in some at common law: see the case of the Hottentot Venus (3). When a person is brought up

(1) 2 Hyde, 63.

(2) 11 Moore's I. A, 551.

(3) 13 East., 195.

1870

IN TIE MATTER OF

under a writ of habeas corpus the question of guardianship often

arises on its being found that he is in confinement against his will. KHATIJA Bibl. Bacon's Abr., title, Habeas Corpus, page 139. For where he is

an infant, the law looks for those who should exercise discretion for him, and delivers him over to them. At common law the truth ofa return could not be controverted-Bacon's Abr., title Habeas Corpus, page 140. This was before the passing of the 56 George III, c. 100, which gave the power of going behind the return by affidavits in all except criminal cases ; but that Statute has not been extended to this country. In criminal cases the law in England still remains that the return cannot be controverted-Broom's Constitutional Law page 223. The remedy in

, those cases is by civil action for false return-Id. 189. The return must, therefore, in this case be taken as true. By the English law the husband and wife have but one will, viz., that of the husband, so the writ of habeas corpus became applicable on this principle between husband and wife-Bacon's Abr., Title Baron and Feme, C. and G., pages 694 and 710. But the state of husband and wife by Mahomedan law is different; they are two independent persons; there is no reason therefore why the procedure of a writ of habeas corpus should be applicable. In the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum (1) it was merely sought to enforce a contract. In this case the girl is an infant, and the return is based on the ground that the custody is in the mother until puberty. The question then arises whether this right of the mother has been divested by marriage. The girl is alleged to have not arrived at puberty, and, as her husband is not bound to maintain her until she has arrived at puberty, the custody is still in the mother. If there is no dower fixed, proper dower must be given; it is contended that in such a case it may be deferred; but where it is not fixed, it must be prompt, and not deferred.— Macnaghten's Mahomedan Law, page 281, case 31. When dower is paid, the husband cannot force his wife to come to his house. It is said that dower is not absolutely essential to validity of marriage

- Hedaya, Book II., Chapter III., page 122—but where the dower is not fixed, proper dower can be claimed by the wife, even if

a

(1) 11 Moore's I. A., 551.

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