JUDGMENT

Beachcroft, J. - The appellants are the second and third defendants. The suit has some remarkable features, which are evident on a perusal of the judgments of the lower Courts, but the feature which principally attracts attention, though perhaps it ought not to be styled remarkable in a country which is notorious for the protraction of litigation, is that the suit, which is virtually one for restitution of conjugal rights and, therefore, essentially one for speedy disposal, has lasted for 6 years, and the practical effect of this is that though the person principally interested, the alleged wife, was a mere child of 7 at its inception, she has now reached an age when she will be in a position, if indeed she has not already attained it, either at once or in the near future, to nullify, if she so chooses, any findings of the Courts as to the fact of her marriage and consequent directions based thereon by exercising her right of repudiation under the Muhammadan Law.

2. The plaintiff is the first cousin of the girl, who is the defendant No. 1, the second defendant is the uncle of both and the father of the third defendant. The girl's father is dead and her mother has disappeared. Her guardian ad litem was one Johuruddi, a brother of the second defendant, of the girl's father and of the plaintiff's mother.

3. The suit was described in the plaint as one for possession on declaration of be plaintiff's right over his wife. It was alleged in the plaint that though the first defendant had married the plaintiff, the second defendant, in collusion with six others, had got her married again to the third defendant and confined her in his house. It was asserted that the plaintiff was entitled to possession according to law and in the prayer clause the plaintiff asked for a declaration that the first defendant was his wife and for possession of her, and for any other proper relief. The Munsif gave the declaration asked for and directed the other defendants not to put any obstruction in the way of defendant No. 1 coming to the plaintiff. He added: "the plaintiff will get defendant No. 1 as his wife." This order was re produced in the decree, and an appeal to the District Judge was dismissed without variation of the decree.

4. One of the grounds taken in the memorandum of appeal to this Court was that the Munsif had no jurisdiction to entertain the suit. The appellant Pleader, however, conceded that he could not argue that ground in view of some of the decisions of this Court regarding the competence of Courts to try suits for the restitution of conjugal rights. The points urged were (1) that a suit for the possession of a wife is not maintainable, (2) that the first defendant was not properly represented, (3) that as there was a question of the validity of the marriage, it was necessary FOR the Court to find what were the essential ceremonies of a valid marriage and whether those ceremonies had taken place, which the Court had not done, (4) that the Vakil who acted for the first defendant at the alleged marriage, being a minor, was incompetent to act and, there fore, the marriage was invalid.

5. The first point taken involves an accurate statement of the law, viz., that a suit: for the possession of a wife is not maintainable. Bat that is not enough to justify dismissal of the suit which, as I have already remarked, is in substance one for restitution of conjugal rights. It was open to the Courts to give the plaintiff a declaration that the first defendant was his wife and it was also open to them to direct the other defendants not to obstruct HER returning to her husband. But it was not open to them to decree the husband possession of his wife. The decree should have directed her to return to her husband. There was some discussion in this Court as to whether a decree for restitution of conjugal rights can he made in the case of a wife who is a mere child as, obviously, a child of 7 is not capable of performing all the duties of a wife. Ha