The main legal point established in the judgment is the interpretation and application of Mohamedan Law provisions regarding the validity of a marriage, competency of a virgin girl to contract a marriage, the authority of a guardian for marriage, and the ratification of marriage by living as a wife after attaining majority.

1. There is not much force in this second appeal, though on the short question involved in the case the courts below have expressed divergent opinions. The appellant brought the suit for a declaration that the respondent was not his legally wedded wife and consequently, the child born in the union was not also his child. The courts below have concurrently found that the appellant (a Mohamedan) married the respondent as his third wife, lived with her for about 7 years and also had a child. That concurrent finding cannot be seriously questioned in second appeal; and I confirm that finding.

2. The trial court has held further that though the appellant married the respondent, it was a fasid or irregular marriage, so that the respondent was not the wife of the appellant and that the child was not his child. The reason given by the Munsiff for holding that the marriage was irregular is that the respondent, a Shafi virgin girl with no father, grandfather or agnatic male relation alive, could have been given in marriage only by the kazi, which did not take place. On the other hand, the Subordinate Judge has held that the marriage was not an irregular marriage, because Dw. 2 acted as wali and gave away the respondent in marriage to the appellant: in the opinion of the Subordinate Judge, the kazi need not necessarily be the wali in such a case. The lower appellate court has further held that since the respondent attained puberty before the marriage, she was competent to contract a marriage by herself without the intervention of a guardian. The lower appellate court has again held that even if the respondent was not competent to contract a marriage herself, since consummation took place and she lived as the wife for several years even after she attained majority, she ratified the marriage, which she could have repudiated when she attained majority (strictly, age of discretion which means puberty). The question for me to consider in second appeal is whether this view of the Subordinate Judge is not correct.

3. The counsel on both sides have drawn my attention to some sections in Tyabji's Muhammadan Law, 3rd Edn. S.17B(2)(b) says that under the Shafi and Maliki law, a thayyiba (a widow or divorcee) is competent to contract a marriage, but not a woman who is a virgin: the marriage of an adult virgin governed by the Shafi law, contracted by her father without her consent, has been held not to be valid. S.64 says that under Shia and Shafi law no person other than the father and father's father, and under Maliki law no person other than the father, is entitled to act as guardian for marriage. Again S.67 provides that the authority of a guardian for marriage ceases when the ward becomes competent to contract himself or herself in marriage. These sections make it clear that in the case of a Shafi virgin girl her father or grandfather is to act as her guardian in marriage and such authority of the guardian ceases when the girl becomes competent to contract herself in marriage. She becomes competent to contract in marriage when she attains the age of discretion, i.e. puberty. Therefore, the guardianship of the father or the grandfather must cease when the ward attains puberty.

4. I shall now refer to a passage from Kashi Prasad Saksena's Muslim Law as Administered in India and Pakistan, 4th Edn., at page 157, where the author deals with Shafi and Maliki marriages. The author says that under the Shafi and Maliki laws the consent of the adult virgin is not sufficient for the completion of the marriage contract: then the author refers to a passage from The Radd-ul-muhtar to the effect that Shafi and Maliki hold a contrary opinion, but there is no authentic hadis in support of their views. The author states the ultimate legal position thus: "It has been recommended at the same time that an adult virgin should entrust the negotiations of her marriage to a wali, in whom she can place every reliance". "In other words", the author continues, "she