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CONTENTS

01) LITERATURE REVIEW


02) RESEARCH METHODOLOGY
03) INTRODUCTION
04) CASE
05) CASE RESULT
06) CONCLUSION

Literature Review
*BOOKS REFERRED
Muslim Law

Rita Khanna

Muslim Law

M.A.Qureshi

Muslim Law

Syed Khalid Rashid, revised by Dr. V.P.


Bharatiya

Muslim Law of Marriage & Succession in India


(A Critique with a Plea for Optional Civil Code)

Justice S.A.Kader

Muslim Laws (Latest Bare Act)

Universal Law Publishing Co.

Muslim Laws (Latest Bare Act)

Private Publication

Muslim Law in Modern India

Dr. Paras Diwan

MUSLIM Laws - Cases & Materials

Dr. Hari Dev Kohli

MUSLIM LAWS IN INDIA: Contemporary, Issues


and Challenges

Partha Pratim Mitra

10

Textbook on Muslim Law

Dr. Rakesh Kumar Singh

11

Introduction to Muslim Law

Dr. Tahir Mahmood & Dr. Saif Mahmood

12

ISLAMIC Law

Abdul Haseeb Ansari

13

Law Relating to Muslim Women in India

S.K.A.Naqvi

14

Commentary on MUSLIM LAW in India

Manzar Saeed

15

Criminal Law in Islam

Tauqir Mohammad Khan (Ed.)

16

Law of Waqf in Islam

Tauqir Mohammad Khan (Ed.)

17

Family Law in Islam

Arif Ali Khan (Ed.)

Websites Referred:

www.lawctopus.com

www.legalserviceindia.com/

indialawjournal.com/www.legalindia.com

www.indiankanoon.org/

Magazines and Newspaper:

The Hindu
The Indian Express
Firstpost
Frontline

Research Methodology:
Scope: This project seeks to undertake a comprehensive analysis of free will and
consent between the muslim parties for the purpose of marriage.

Focus: Given the nature of the subjects and the sheer number of concepts it deals
with either directly or indirectly, the researcher has restricted his analysis to those
aspects of the essay that he feels stand out in terms necessary for the full
understanding, and conceptual integrity. Factual discussion had to be given in order to
allow space to the researcher to present his personal perspective and researcher also
included relevant case laws to understand legal implications of the project. The twin
fetters of time and space have also restricted the scope and coverage of this paper.

Research Aim and Objectives:


To illustrate the concept Free will and Consent under Muslim Marriage(NIKAH)

with case.

Research Questions Formulated:


1. whether free will and consent is necessary requirements for muslim marriages ?
2.

Whether a marriage without free and consent would constitute a valid marriage or
not?

INTRODUCTION
Marriage, nikah in pre-islamic Arabia, meant different forms of sex relationship
between a man and a woman established on certain terms, In pre-Islamic days,
women were treated as chattels and were not given any right of inheritance and were
absolutely dependent . It was Prophet Mohammad who brought about a complete
change in the position of women. The improvement was Vast and striking ,and their
position is now unique as regards their legal status. Prophet Mohammad placed
woman on footing of almost perfect equality with in the exercise of all legal powers
and functions which stand in hold relief when compared with the state of law
amongst the ancient Arabs of the pre-islamic days. Under the muslim law marriage is
considered as civil contract . After marriage the woman does not loose her own
individuality . She remains a distinct member of the community, her marriage give no
power to anyone over her person or property beyond what the law defines. Woman
remains the absolute owner of her individual rights, even after marriage she can
alienate or transfer her property in any way she pleases without any extraneous
control of her husband . She can enter into binding contracts with her husband and
proceed against him in law courts, if necessary. The woman enjoys this position
through the injunction of Quran
The Arabic word nikah literally means the union of sexes and in law this terms means
'marriage'. In Baillie's Digest , marriage has been difine to be " a contract for the
purpose of legalising the sexual intercourse and procreation of children.
In Hedaya it is defined as : "nikah in its primituve sense means
carnal conjunction . Some have said that is signifies conjunction generally . In the
language of law it implies a particular contract used for the purpose of legalising
generation.
Ashabah says : "Marriage is a contract underlying a permanent relationship based on
mutual consent on the part of a man and woman".
Dr. Jang is of opinion that,"Marriage though essentially a contract is also a
devotional act; its objects are rights of enjoyments and procreation of children and
regulation of social life in interest of society."1
Similar is the view of Abdur Rahim, who says : " The Mohammedan jurists regard the
institution of marriage as partaking both of the nature of ibadat or devotional acts and
muamalat or dealings among men."2
The Prophet of Islam is reported to have said : "Marriage is my Sunna and those who
do not follow this way of life are not my followers."
and that
"There is no monkery in Islam."
In Shoharat Singh v. Jafri Begum,4 the Privy Council said that nikah (marriage)
under the Muslim law is a religious ceremony.
1
2

Dr. M.U.S. Jang "Dessertion on the Development of Muslim law in British India",pp.,1,2
Abdur rahim : the principles of Mohammedan jurisprudence Lahire Edn. 1958, p.327

The sanctity attached to the institution of marriage in the Islamic system has neither
been comprehended nor sufficiently appreciated by outsiders. Marriage is recognised
in Islam as the basis of society. It is a contract but..it is also a sacred covenant.
Marriage as an institution leads to the uplift of man and is a means for the
continuance of the human race. The main aim of the institution of marriage is to
protect the society from foulness and unchastity. It has also been said that marriage is
so holy a sacrament, that in this world it is an act of ibadat or worship, for it preserves
mankind free from pollution.
There is a consensus of Muslim Jurists that marriage is Sunnat Muwakkida. A Sunnat
Muwakkida is defined, "the person who complies with it, is rewarded in the next
world, and he who does not, commits a sin"
According to Ameer Ali, marriage is an institution ordained for the protection of the
society and in order that human beings may guard themselves from foulness and
unchastity.
Also, according to kefaya, marriage is a contract which has for its design or object the
procreation of children; it was also instituted for the comfort of life, and is one of the
prime or original necessities of man. It is, therefore, lawful in extreme old age after
the hope of offsprings has ceased, and even in the last or death-illness
According to Justice Mahmood, "Marriage among Mohammedan is not a sacrament,
but purely a civil contract."3
Thus, marriage, according to Muslim Law, is a contract for the purposes of
legatsation of intercourse, procreation of children and regulation of social life in the
interest of society by creating(i) the rights and duties between the parties themselves, and
(ii) between each of them and the children born from the union.
According to Tyabji : "Marriage brings about a relation based on and arising from a
permanent contract for intercourse and procreation of children, between a man and a
woman, who are referred to as 'parties to one marriage' and who after being married,
become husband and wife.

Abdul Kadir v. Salima,(1886) 8 ALL. 149 at 154

Objects of marriage.A glossary on Tarmizi sets out five objects of Marriage :


(1) the restraint of sexual passion;
(2) the ordering of domestic life;
(3) the increase of the family;
(4) the discipline of the same in the care and responsibility of wife and children; and
(5) the upbringing of virtuous children. Hedaya speaks of the ends of marriage as
(i) cohabitation,
(ii) society, and
(iii) equal friendship.
The Prophet said : "Men marry women for their piety, or their property, or their
beauty, but you should marry for piety'. (Tarmizi).
The purposes of marriage are
perpetuation of human race and attainment of chastit , continence, mutual love,
affection and peace.

Nature of Muslim Marriage :There are divergence of opinion with regard to the
nature of Muslim marriage. Some jurists are of the opinion that Muslim marriage is
purely a civil contract while others say that it is a religious sacrament in nature. In
order to better appreciate the nature of Muslim marriage it would be proper to
consider it in its different notions.
Muslim marriage, by some text writers and jurists, is treated as a mere civil contract
and not a sacrament. This observation seems to be based on the fact that marriage,
under Muslim law, has similar characterisitics as a contract.

Fact of the case


The plaintiff' was an adult virgin woman and had been married to the defendant
under the guardianship of her father. She, the plaintiff , later claims that the marriage
took place without her consent and claimed the marriage invalid.
After the marriage, the plaintiff instituted a suit for the purpose of compelling the girl
to live with him as his wife, but failed by reason of its being established that the girl
was of full age, and that she had not given her consent.

Questions involved in the first and second appeal


1) The question is has the father of the plaintiff the right to marry her to the
defendant without her consent?

2) Second Appeal arises out of a suit instituted by the plaintiff for a

declaration that she is not the properly wedded wife of the defendant and
for an injunction restraining the latter from asserting his rights as her
husband?

Hassan Kutti Beary vs Jainabha on 5 September,


1928
Equivalent citations: 113 Ind Cas 306, (1928) 55 MLJ 828
Author: Odgers
JUDGMENT Odgers, J.
1. This is a Second Appeal from the decree of the learned District Judge of South
Kanara confirming that of the District Munsif, and the question is has the father of
the plaintiff the right to marry her to the defendant without her consent? The parties
are Moplahs and Sunni Muhammadans. The case has been argued on the assumption
that they belong to the Shafi sect of the Sunnis. Nikka was performed by the father of
the plaintiff in the Tadangere Mosque, and the question is - is this an irrevocable
marriage? The plaintiff is an adult virgin and it is not proved that she has been
consulted or that her consent has been obtained. Another important sect of the Sunnis
is the Hanafis. There is no doubt that a woman cannot be married in that sect without
her consent. The learned Advocates on each side have been at pains to bring to our
notice every possible authority which exists in the text-books. There are practically
no cases on the point, and therefore the text-writers must be shortly examined.
2. Wilson in his Anglo-Muhammadan Law, p. 68, points out as one of the chief
variations of the Shaft creed that women have less freedom of choice in the matter of
marriage. He says:
Not only female minors, but adult women who are virgins, may be disposed of in
marriage by the father or paternal grandfather without their consent and though
widows and divorced women cannot be given in marriage against their will, even
they re-marry without the intervention of a guardian or wali.
3. And in the same book (Ch. 13) dealing with the peculiarities of the Shafi school of
Sunni Muhammadans and quoting from the Minhaj, a work dating from the 13th
century of the Christian era, he says:

Not only female minors, but adult women who are virgins may be disposed of
irrevocably in marriage by the father or failing him by the paternal grandfather with
or without their consent; but their consent is nevertheless considered desirable.
4. Minhaj-et-Talibin which has been translated apparently under the authority of the
Dutch Government for use among Shaft Muhammadans of Java says at page 284:
If his daughter is a virgin the father can dispose as he pleases or remarry.
5. And he adds:
It is, however, always commendable to consult her as to her future husband, and her
formal consent to the marriage is necessary if she has already lost her virginity.
6. In the prefatory note, the Editor says:
It is not always possible to decide the question by reference to Minhaj done.
7. But the two other treatises to which he refers as the two standard works in the
whole modern literature on the school of Shan are unfortunately not available to us
here. The late Syed Amir Ali in his introduction to Muhamimadan Law cites Minhaj
as a Shan work of repute but is himself quite definite as he remarks;
Among Shafis and Malikis, although the consent of the adult virgin is as essential as
among Hanafis and Shiahs as to the validity of a contract of marriage entered into on
her behalf, she cannot contract herself in marriage without the intervention of a wali.
8. If that is to be taken as the modern view on the subject, it seems to me that there is
no more to be said.
9. A good deal of the learning on this part of the subject is concerned with the
competence to contract marriage. According to Mr. F.B. Tyabji at page 91 of his
book:
A Shafi thayyaba is competent to contract marriage, i.e., to enter into a contract of
marriage but not a woman who is a virgin.
10. At page 97 the learned author says : that the consent to the marriage of a person
not competent to enter into a contract of marriage must be expressed by his or her
guardian for marriage who is a wali. This would also seem to point to the conclusion
arrived at by Syed Amir Ali to the effect that consent was necessary. The answer to
that argument put forward is that the consent has been given on her behalf by the
father as her wali. That of course cannot be because the Lower Courts have found as
a fact that she was never asked and she had never even seen her future husband. So
that her consent was never expressed either personally or through a wali at all.
Hedaya in Chapter 2 on Guardianship and Equity mentions the Shafi assertion that a
woman can by no means contract herself in marriage in any circumstances whether
with or without the consent of her guardian. That must simply mean the mode of
expressing consent. Further at page 96 Hedaya says:
It is not lawful for a guardian to force into marriage an adult virgin against her
consent. This is contrary to the doctrine of Shan who accounts an adult virgin the
same as an infant.

11. And the argument of the Shan is refuted by the argument of "our doctors.",
Hanafis. Sir Abdur Rahim says as follows at pages 330 and 331:
According to the Hanafis, every person who is not a minor whether male or female
maiden or thayyaba (that is, a girl who has had sexual intercourse) is competent to
contract marriage and cannot be given in marriage without his or her consent whether
by the father or any other relative. The Shafis and Malikis agree with the Hanafis so
far as boys and thayyabas who have attained majority are concerned; the former,
however, hold that a minor thayyaba is competent to contract marriage and a maiden,
even if she has attained majority, cannot marry without the consent of the guardian,
while the Hanafis in each of these two cases hold the contrary view. Thus with the
Hanafis so far as the females are concerned minority is the test whetheir the
intervention of a guardian is necessary or not and with the Shafis the test is whether a
girl is a maiden or thayyaba. The difference between the two sects on this point
though not perhaps of much practical significance involves a question of principle.
The Hanafis' allege that the Shafis' refusal to acknowledge the right of a maiden of
full age to contract marriage of her own will amounts to a breach of a cardinal
principle of Muhammadan Law, namely, that the legal status of a grown up female is
as complete as that of a male.
12. Even in that passage the learned author is concerned with the capacity to enter
into the marriage contract, i.e., as to whether the intervention of a wali is necessary or
not. In the Muhammadan Law marriage would appear to be nothing more nor less
than a contract and therefore there must be consent. How that consent is to be
expressed is a matter on which as already stated there appears to be much learning
and some confusion appears to exist as will be apparent from the quotations already
given between the necessity of such consent and the mode of its expression. In Amir
Ali page 343 it is said that A woman who is sane, free and adult can marry herself to
an equal, with or without the consent of any person who might be her wali.
"Shaft and Malik hold a contrary opinion" says the Radd-ul-Muhtar, "but there is no
authentic hadis in support of their views. At the same time it is recommended as more
consistent with decorum that an adult virgin should entrust the negotiations of her
marriage to a wali in whom she has trust.
13. In the recapitulation at page 350 the learned author says:
Under the Maliki and Shaft Law the marriage of an adult girl is not valid unless her
consent is obtained to it. But such consent must be given through a legally authorised
wali who would act as her representative.
14. In a case of Muhammad Ibrahim v. Gulam Ahmed (1864) 1 Bom. H.C.R. 236 it
was held that according to the doctrine of Shan a virgin whether before or after
puberty cannot give herself in marriage without the consent of her father. That of
course is not this case at all.
15. Giving the best consideration I can to these various authorities it seems to me that
the only view against the position taken up by the Lower Courts is that of Wilson, and
even he says that consent is commendable. There is further the evidence in this case

of a Musaliar, D.W. 2, who says he is a teacher of Sastras by which, I suppose, he


means the Koran. He says that among Shafis consent of the girl is not necessary for
the first marriage but that all the books state that it is better to get it. It would have
been interesting if a body of evidence had been given in the first Court as to the ideas
obtaining among the best opinions of the community of the present day on this
subject. I do not imagine that these opinions have retrogressed and become more
conservative as time has gone on; and it may be that the better opinion among the
Shafis on the West Coast is that no adult virgin should be married without her
consent. However that may be, the question is here whether enough has been shown
to enable us to say in second appeal that the view taken by both the Lower Courts is
manifestly wrong in law. I am by no means persuaded that it is. I think therefore that
the decree of the Lower Appellate Court should be confirmed and this second appeal
dismissed with costs.
Madhavan Nair, J.

1. This Second Appeal arises out of a suit instituted by the plaintiff for a declaration
that she is not the properly wedded wife of the defendant and for an injunction
restraining the latter from asserting his rights as her husband.
2. The parties are Sunnis and they belong to the Shafi sect. The Lower Courts have
found that the plaintiff had attained puberty at the time of the marriage, that no
consummation ceremony was performed and that her consent has not been obtained
by her father for the performance of the nikka. It was contended on her behalf that,
she being an adult virgin, the nikka performed without her knowledge and consent is
invalid under the Shafi Law. This contention has been upheld by the Lower Courts.
3. The question for consideration is whether the marriage of a Muhammadan woman
who is an adult virgin is under the Shafi Law invalid owing to want of consent on her
part. There are no decisions directly bearing on the question; the case reported in
Muhammad Ibrahim v. Gulam Ahmed (1864) 1 Bom. H.C.R. 236 does no more than
point out the difference between the Hanafi and the Shafi Law on this point. The
evidence of D.W. 2, the Khaliff of Puttur, the only witness who speaks on this
question, is not much helpful as he does not refer to instances of marriages declared
invalid by the Court or held so by the community owing to want of consent on the
woman's part. The case has therefore to be decided on the statements of the Law
contained in the various recognised text-books of authority on Muhammadan Law.
4. The appellant's contention that want of consent on the part of the woman does not
invalidate her marriage under the Shafi Law is supported by the statement of the Law
contained in Wilson's Anglo-Muhammadan Law, Hamilton's Hedaya and Minhaj-etTalibin. In Wilson's book the law with regard to Shafi Muhammadans is stated as

follows:
Not only female minors, but adult women who are virgins may be disposed of
irrevocably in marriage by the father with or without their consent; but their consent
is nevertheless desirable (See p. 407, para. 392.).
5. In Hamilton's Hedaya, Vol. 1, page 96, the law is thus stated:
It is not lawful for a guardian to force into marriage an adult virgin against her
consent. This is contrary to the doctrine of Shafi, who accounts an adult virgin the
same as an infant, with respect to marriage, since the former cannot be acquainted
with the nature of the marriage any more than the latter, as being equally uninformed
with respect to the matrimonial state, whence it is that the father of such an one is
empowered to make seizure of her dower without her consent.
6. Minhaj-et-Talibin (Guide of the earnest enquirer), a book dating from the 13th
century of the Christian era and which is exclusively devoted to a statement of the
principles of the Shaft Law, also supports the contentions of the appellant. It is stated
in that book that a father can dispose, as he pleases, of the hand of his daughter
without asking her consent whatever her age may be, provided she is still a virgin. It
is, however, always commendable to consult her as to her future husband.
(See p. 284, Section 4, para. 3)
7. Though this is a book exclusively devoted to a statement of the Shafi Law, it is
difficult to say to what extent it can be relied on in deciding questions arising under
the Shafi Law. Though the translator says that "the book occupies the first rank for
deckling legal cases," he later on modifies the effect of the statement by saying:
It is not always possible to decide a question by reference to Minhaj and in such a
case a Muhammadan jurist...has recourse principally to the Tohfa and the Nihaya,
which Dr. Th. Juynoboll in his Handbuch des Islamischen Gesetzes, 1910, calls the
two standard works in the whole modern Fikh literature of the School of Shafi.
8. We have not been able to refer to these two books. Even according to Minhaj-etTalibin, it is always commendable to consult a woman as to her future husband and
we have already noticed that Mr. Wilson also says "that the woman's 'consent is
nevertheless desirable'.
9. Against this authority the respondent relies mainly on the statements of the Shafi
Law contained in Mr. Amir Ali's Muhammadan Law, Third Edition, Vol. II, at p. 350,
and Mr. Tyabji's Text-book of Muhammadan Law. In the former book it is stated that
To re-capitulate : Under the Maliki and Shafi Law, the marriage of an adult girl is not
valid unless her consent is obtained to it, but such consent must be given through a
legally authorised wali, who would act as her representative. Under the Hanafi and
Shiah Law, the woman can consent to her own marriage either with or without a wali.
10. Speaking of the competence of a female to enter into a contract of marriage, Mr.
Tyabji states in para. 17-B of his Principles of Muhammadan Law, that
(a) According to the Hanafi Law she becomes competent when, being of sound mind,
she attains puberty, (b) According to the Shafi and Maliki Law, a thayyaba is

competent so to contract but not a woman who is a virgin.


11. And after thus dealing with the capacity of parties to enter into a contract of
marriage, the law with regard to the consent of parties is thus stated:
(1) The consent to the marriage of a person competent, under Section 17-B above, to
enter into a contract of marriage, must be expressed either by himself or his duly
authorised agent or proxy. (2) The consent to the marriage of a person not competent
to enter into a contract of marriage under Section 17-B must, subject to the said
section, be expressed by his or her guardian for marriage or by the duly authorised
agent or proxy of such guardian.
(See para. 20, page 97-)
12. It would seem that, in the opinion of this writer, though an adult virgin cannot,
owing to her incapacity to enter into a contract, express her consent except through
her guardian for marriage or by the duly authorised agent or proxy of such a
guardian, nevertheless her consent is necessary to render the contract of marriage
valid. This is what we can gather impliedly by reading the two paragraphs 17 and 29
together. Nowhere does the learned author say explicitly that a Shafi woman can be
married with or without her consent by her father if she is an adult virgin; but his
opinion seems to be, as I have indicated above, in favour of the view that the consent
of an adult virgin is necessary to render her marriage valid under the Shafi Law.
13. It will thus be obvious that the authorities on the question are very much divided
and except Mr. Amir Ali and Mr. Tyabji - the former expressly and the latter
impliedly - all the other text-writers that we have thus far exaxmined point out that
the marriage of an adult virgin under the Shafi Law will not be invalidated by want of
her consent, whereas, under the Hanafi Law, the woman's consent is necessary to
render the marriage valid. The opinion of Sir Abdur Rahim has been referred to by
both the appellant and the respondent. In page1 330 of his book on Muhammadan
Jurisprudence the learned writer states his view as follows:
According to the Hanafis, every person who is not a minor, whether male or female,
maiden or tayyiba (that is, a girl who has had sexual intercourse) is competent to
contract marriage and cannot be given in marriage without his or her consent whether
by the father or any other relative. The Shafiis and the Malikis agree with the Hanafis
so far as boys and thayyabas who have attained majority are concerned: the former,
however, hold that a minor thayyaba is competent to contract marriage and a maiden
even if she has attained majority, cannot marry without the consent of the guardian,
while the Hanafis in each of these two cases hold the contrary view. Thus with the
Hanafis, so far as the females are concerned, minority is the test whether the
intervention of a guardian is necessary or not and with the Shafiis the test is whether
a girl is a maiden or tayyiba. The difference between the two schools on this point,
though not perhaps of much practical significance, involves a question of principle.
The Hanafis allege that the Shafiis' refusal to acknowledge the right of a maiden of
full age to contract marriage of her own will amounts to a breach of a cardinal
principle of Muhammadan Law, namely, that the legal status of grown up female is as
complete as that of a male.

14. Having regard to the marginal heading of the paragraph "The capacity to enter
into a marriage contract " it is possible to argue, as contended for by the respondent,
that, in the opinion of this learned writer also, under the Shafi Law the consent of the
woman who is an adult virgin is as essential as under the Hanafi Law to validate her
marriage though she is not competent to express that consent except through a wali.
15. It seems to me that, having regard to the nature of the marriage relationship as
understood in Muhammadan Law, the difference between the two schools, the Hanafi
and the Shafi, on the point under consideration is not so very fundamental as is made
to appear from the text-books. Marriage in Muhammadan Law is purely a civil
contract, and if so, the consent must be considered a necessary element to give
validity to the marriage. In the opening paragraph of the judgment in Asgur Ali
Chowdhry v. Muhubbut Ali (1874) 22 W.R. 403 which was a case in which the
husband of a Muhammadan woman sued his father-in-law for damages when the
marriage was found invalid, Markby, J. says:
After the marriage, the plaintiff instituted a suit for the purpose of compelling the girl
to live with him as his wife, but failed by reason of its being established that the girl
was of full age, and that she had not given her consent.
16. We do not know what law governed the parties and there is no further reference in
the judgment to this question of consent as the case dealt with quite a different matter.
After stating, No contract can be said to be complete unless the contracting parties
understand its nature and mutually consent to it,
17. Mr. Amir Ali points out the distinction between the Hanafi and the Shafi Law
thus:
Among the Shafis and Malikis, although the consent of the adult virgin woman is as
essential as among the Hanafis and the Shiahs to the validity of a contract of marriage
entered into on her behalf, she cannot contract herself in marriage without the
intervention of a wali. Among the Shafis, a woman cannot personally consent to the
marriage. The presence of the wali or guardian is essentially necessary to give
validity to the contract. The wali's intervention is required by the Shafis and the
Malikis to supplement the presumed incapacity of the woman to understand the
nature of the contract, to settle the terms and other matters of similar import, and to
guard the girl from being victimised by an unscrupulous adventurer or from marrying
a person morally or socially unfitted for her.
18. It appears to me therefore that the consent of an adult virgin even among the Shafi
sect is essential for the validity of a marriage and that the only difference between the
Hanafi Law and the Shafi Law on this point is that under the Shafi Law the consent
must be expressed through a wali and not direct. Even according to the "Minhaj,"
which has been strongly relied upon by the appellant as being a book upon Shafi
Law, it is always commendable to consult the woman as to her future husband. The
desirability of adopting this course is suggested by Sir R. Wilson also. Having regard
to the conception of marriage as a contract in the Muhammadan Law, I think Mr.
Amir, Ali's explanation of the difference between the Hanafi and the Shafi Law
should be accepted as correct : and therefore it follows that in this case the marriage

of the plaintiff with the defendant should be held invalid as her father had not secured
her consent for it. This view is certainly more equitable and more suitable to modern
times.
19. Therefore the court dismisses this Second Appeal with costs.

DECISION OF THE COURT


In the first appeal . the defendant claim that the marriage is valid was reject by the
court on the ground that for a valid marriage the consent of the female is very
important . Without her consent the marriage will be invalid.
In the second appeal for the declaration that she is not the wedded wife of the
defendant , the court held that, the basic requirements for a valid marriage has not
been fulfilled . The proper consent of the female has not been taken though she was a
major at the time of the marriage. Hence there will be no inforcment of the rights
which the husband has towards his wife.

CONCLUSION
The parties contracting a marriage must be acting under their free will and consent.
The consent should be without fear or undue influence or fraud. In the case of a boy
or girl who has not attained the age of puberty, the marriage is not valid unless the
legal guardian consented to it. The 'consent may be express or implied'Smiling or
laughter or remaining silent may he construed to imply consent. Wilson says "as to
what amounts to coercion or compulsion depends upon the circumstances of each
case". Free consent in as of adult persons is not only essential for a valid marriage but
is absolutely ce necessary.Consent is an essential factor in a marriage and the father's
consent is no substitute for the girl's consent.