Marikar V. Marikar Et Al.,

Present  : Wood Renton C.J. and Be Sampayo J.   1915.

MARIKAR v. MARIKAR et al.

407-D. C. Puttalam, 2,515.

Muhammadan law-Manage of boy of seventeen years of age-Father and grandfather dead-Application by paternal uncle for injunction to present marriage-Courts Ordinance, 1889, s. 87-Is content of parents or guardian necessary to contract marriage ?-Capacity to merry-Age of majority.

Where a paternal uncle of a Muhammadan boy of seventeen yean of age (whose father and grandfather an dead) applied for an in-junction to restrain the defendants from marrying the boy (second defendant's son) to first defendant's daughter,-

Held, the plaintiff was not entitled to the injunction prayed for.

WOOD RENTON C.J.-Even if the boy is to be regarded as a minor for the purposes of marriage, the plaintiff is not his wali or guardian for marriage.

No relative except a father or paternal grandfather has the power of contracting any marriage for a boy or a girl under the age of puberty.

Ceteris paribus, capacity to marry under the Muhammadan law is dependent on the attainment of puberty, provided that the pubes has also reached the age of discretion.

There is nothing in the provisions of section 1 of Ordinance No. 7 of 1865 (fixing twenty-one years as the legal age of majority in this country) that can be regarded as altering the Muhammadan law as to the effect of the attainment of puberty on the capacity to marry.

De SAMPAYO J.-The Court has no power to grant the injunction prayed for, as the alleged cause of action is not of the species of injury contemplated in section 87 of the Courts Ordinance.

According to Muhammadan law, not only has Cader Saibo Marikar (the boy) attained the age of "majority" and become capable of contracting himself in marriage, but the authority of the plaintiff as guardian, if any, has ceased.

THE facts are set out in the judgment of De Sampayo J.

A. St. V. Jayewardene, for plaintiff, appellant.

Samarawickreme (with him Arseculeratne), for defendants, respondents.

Cur. adv. vult.

December 16, 1915. WOOD RENTON C.J.-

This case raises an interesting point of Muhammadan law. The plaintiff, as the alleged wali or guardian for marriage of a boy Cader Saibo Marikar, brings this action for an injunction to restrain the

defendants from marrying him to the first defendant's daughter, a girl Beebi. The second defendant is Cader Saibo Marikar's mother. The boy was born on October 12, 1898, and has, of course attained the age of puberty. The plaintiff is his eldest paternal uncle, and he claims that, according to Muhammadan law the proposed marriage cannot take place without his consent. The learned District Judge dismissed the action with costs, and, in my opinion, his decision is right.

The local Muhammadan Code of 1806 throws no light on the question. But it is well settled that subject to any customary modifications of its provisions, the Shafei law governs the status of Muhammadans in Ceylon. Now it is clear that, man if Cader Saibo Marikar is to be regarded as a minor for the purposes of marriage, the plaintiff do not his wali. No relative except a father or paternal grandfather has the power of contracting any marriage for a boy or a girl under the age of puberty1[Wilson's Digest of Anglo-Muhammadan Law, third edition, p. 410, s. 403.]. The plaintiff's action fails, therefore, on this ground alone. But, in my opinion, it fails upon another ground also. Ceteris paribus, capacity to marry under Muhammadan law is dependent on the attainment of puberty, provided-a condition satisfied by the evidence in the present case-that the pubes has also reached the age of discretion. There are no doubt authorities to the affect that " puberty " and " majority " are one and the same.2[Hedaya 482, book 35, chapter 2.] But in so far as these dicta are accurate, they appear to me only to show that the age of puberty was regarded as & period of life with wh

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