Lord Atkinson:—

This is an appeal from a judgment and decree of the High Court of Judicature for the North-Western Provinces, dated the 30th July 1912, which reversed a judgment and decree of the Court of the Subordinate Judge of Aligarh, dated the 13th June 1911.

The action out of which the appeal has arisen was instituted by the respondent against the appellant for restitution of conjugal rights.

The main questions for determination

(1) Whether the appellant and respondent were legally married according to the Mahomedan law at Mecca on the 20th July 1907.

(2) Whether the appellant did in fact give her consent to this marriage.

(3) Whether the appellant was at the time of the marriage adult and competent to give her consent thereto.

The Subordinate Judge who tried the case and the High Court have each found as a fact that a marriage ceremony, purporting to be a ceremony between the appellant and respondent, was solemnised at Mecca on the 20th July 1907. For the purposes of this appeal, that fact must be taken as incontrovertibly established.

It is, therefore, now quite irrelevant to consider whether the marriage was an imprudent or a desirable one. And, with one qualification, it is equally irrelevant to speculate as to whether the old lady, Arusa Begum, who undoubtedly promoted it and managed the ceremony, was influenced by affection for the appellant, her grand-daughter, or by a greedy desire to procure a rich wife for her needy nephew, the respondent. The qualification is this, that avarice possibly more frequently than affection tempts to illegitimate enterprises, and to the manufacture of evidence to justify them.

If the appellant was on the 20th July 1907, a minor, the ceremony then performed between these two people, who were Mahomedans, would, however regular in other respects, have been ineffectual to create a valid marriage unless the guardian of the minor had previously consented to the marriage. This consent is an essential.

If the appellant was at this date a major, the guardian's consent would be unnecessary; she would have been legally entitled to please herself, to marry the man of her own choice, despite family or social opposition. According to Mahomedan law a girl becomes a major on he happening of either of two events; first, the completion of her fifteenth year, and, second, on her attainment of a state of puberty at an earlier period. The burden of proving that a girl has in either of these ways reached her majority rests upon those who allege it and rely upon it. These propositions were not questioned in either of the Courts on which this case was litigated. The result is that the respondent was bound to establish by legal evidence either that his marriage was contracted with the consent of the girl's lawful guardian, or that having reached her majority in either of the ways already indicated it was contracted with her own consent.

It is necessary to insist upon the words "legal evidence" because it appears to their Lordships that hearsay evidence — in some cases, indeed, mere gossip, wholly inadmissible in its nature — was admitted and treated as substantive proof of the fact related or discussed. Two instances may be referred to one so coarse as to be almost incredible, and the other such a travesty of legitimate methods of proof as to be comical. The first is where Bashir Ahmad, an alleged witness to the reading of the Nikah, having taken upon himself to state, in answer to a question, asked, no doubt, on cross-examination, that he knew the appellant was of age by certain signs of puberty recognised by the Mahomedan law. When asked how, he knew this he replied : "Through her father." It is difficult to believe that the girl's father can ever have bestowed this confidence upon the witness; but even if he had done so, the repetition of what the father said was no evidence whatever of the substantive fact of the girl's puberty.

The other instance is furnished by the evidence, taken on commission at Mecca, of one of