( 1 ) THIS second appeal has been filed by a husband whose suit for restitution of conjugal rights was dismissed by both the courts below.

( 2 ) THE plaintiffs alleged in the first paragraph of the plaint that he was married to Akhtari, defendant No. 1, during her minority on 26th January, 1949, and that since then she has been submitting herself to her marital obligations. This allegation was denied by Akhtari as well as the other defendants in the suit. Since the plaintiff alleged that Akhlari was a minor at the time of her marriage, one might assume that in the absence of any other allegation to that effect, the plaintiffs case was that Akhtari was given in marriage by her guardian who was entitled under the law to do so.

( 3 ) THE suit was contested by the defendants. Their case was that Akhtari was never married to the plaintiff, nor was the alleged marriage ever consummated.

( 4 ) IT was brought out in the evidence of the plaintiff himself that Akhtari was not married by her brother, Mohammad Umar, who was her guardian for purposes of marriage, but by her uncle iddu. An attempt was, therefore, made on his behalf to prove that Iddu gave Akhtari in marriage in the presence of Mohammad Umar and with his consent. Both the courts below have, however, held against that contention and have found that the marriage was not valid. The Munsif thought that the marriage of the plaintiff, with Akhtari was void. The Civil Judge arrived at a finding that it was not valid, but he did not decide the question as to whether it was void or invalid. It was held that in either case the plaintiff was not entitled to a decree for restitution of conjugal rights.

( 5 ) THE question of consummation of marriage was also raised by the plaintiff, but was not decided by either of the two courts below. No issue was framed as to whether the marriage was consummated, and there is, therefore, no clear finding on that point. But as has been pointed out by the Civil Judge in view of the findings recorded by him that question was not quite material.

( 6 ) BEFORE the trial Court, the plaintiffs contention was that Iddu was entitled to contract the marriage of his minor niece. But that contention was not pressed in this Court and it was conceded that in the presence of Akhtaris brother. Mohammad Umar, Iddu was not the guardian for purposes of her marriage. The position, therefore, is that Akhtari was given in marriage by a remoter relation when the person who was entitled to be Akhtaris guardianship for purposes of her marriage wag available and the question is whether such marriage is valid in law. On this point, however, there can be no two opinions. The law is stated in S. Ameer Alis Mohammedan law (1929 Edn.) as :

"if the more remote marries a girl or a boy when the nearer is present, the marriage is dependant upon the latters ratification, which ratification must be distinct. Mere silence is not sufficient. "

This principle of law has been stated on the authority of Badd-ul-Mukhtar. Volume II, page 216. Bailie states the law in his Digest of Mohammadan Law (1865 Edn.) as:"if a minor, whether male or female, be contracted in marriage by a more distant guardian, while a nearer is present and competent to the guardianship, the contract is dependent on the sanction of the nearer; but if the nearer be incompetent by reason of minority or insanity, though of full age, the contract is lawful; and, in like manner if the nearer guardian be absent at such a distance as precludes him from acting, the marriage contracted by the more remote is also lawful.

( 7 ) THE position in this case is that the brother of Akhtari was present, according to the plaintiffs own contention, at the time of her marriage. If that were so, it was necessary for the plaintiff to allege and prove that the marriage was ratified by Akhtaris brother or that Iddu gave Akhtari in marriage with his consent, in which case the marriage would be as good, as in the case of ratification b