Lord Atkinson:— This is an appeal from a judgment and decree of the High Court of Judicature for the North-Western Provinces, dated the 30th July 1912, which reversed a judgment and decree of the Court of the Subordinate Judge of Aligarh, dated the 13th June 1911. The action out of which the appeal has arisen was instituted by the respondent against the appellant for restitution of conjugal rights. The main questions for determination (1) Whether the appellant and respondent were legally married according to the Mahomedan law at Mecca on the 20th July 1907. (2) Whether the appellant did in fact give her consent to this marriage. (3) Whether the appellant was at the time of the marriage adult and competent to give her consent thereto. The Subordinate Judge who tried the case and the High Court have each found as a fact that a marriage ceremony, purporting to be a ceremony between the appellant and respondent, was solemnised at Mecca on the 20th July 1907. For the purposes of this appeal, that fact must be taken as incontrovertibly established. It is, therefore, now quite irrelevant to consider whether the marriage was an imprudent or a desirable one. And, with one qualification, it is equally irrelevant to speculate as to whether the old lady, Arusa Begum, who undoubtedly promoted it and managed the ceremony, was influenced by affection for the appellant, her grand-daughter, or by a greedy desire to procure a rich wife for her needy nephew, the respondent. The qualification is this, that avarice possibly more frequently than affection tempts to illegitimate enterprises, and to the manufacture of evidence to justify them. If the appellant was on the 20th July 1907, a minor, the ceremony then performed between these two people, who were Mahomedans, would, however regular in other respects, have been ineffectual to create a valid marriage unless the guardian of the minor had previously consented to the marriage. This consent is an essential. If the appellant was at this date a major, the guardian's consent would be unnecessary; she would have been legally entitled to please herself, to marry the man of her own choice, despite family or social opposition. This consent is an essential. If the appellant was at this date a major, the guardian's consent would be unnecessary; she would have been legally entitled to please herself, to marry the man of her own choice, despite family or social opposition. According to Mahomedan law a girl becomes a major on he happening of either of two events; first, the completion of her fifteenth year, and, second, on her attainment of a state of puberty at an earlier period. The burden of proving that a girl has in either of these ways reached her majority rests upon those who allege it and rely upon it. These propositions were not questioned in either of the Courts on which this case was litigated. The result is that the respondent was bound to establish by legal evidence either that his marriage was contracted with the consent of the girl's lawful guardian, or that having reached her majority in either of the ways already indicated it was contracted with her own consent. It is necessary to insist upon the words "legal evidence" because it appears to their Lordships that hearsay evidence — in some cases, indeed, mere gossip, wholly inadmissible in its nature — was admitted and treated as substantive proof of the fact related or discussed. Two instances may be referred to one so coarse as to be almost incredible, and the other such a travesty of legitimate methods of proof as to be comical. The first is where Bashir Ahmad, an alleged witness to the reading of the Nikah, having taken upon himself to state, in answer to a question, asked, no doubt, on cross-examination, that he knew the appellant was of age by certain signs of puberty recognised by the Mahomedan law. When asked how, he knew this he replied : "Through her father." It is difficult to believe that the girl's father can ever have bestowed this confidence upon the witness; but even if he had done so, the repetition of what the father said was no evidence whatever of the substantive fact of the girl's puberty. The other instance is furnished by the evidence, taken on commission at Mecca, of one of the witnesses of the plaintiff in the suit, named Mahomed Said Shatta. The other instance is furnished by the evidence, taken on commission at Mecca, of one of the witnesses of the plaintiff in the suit, named Mahomed Said Shatta. After being examined by the person appearing for the defendant, he was re-examined by the person appearing for the plaintiff, and was asked : "Did you hear from anybody that Atkia Begum was of age?" and he replied : "I heard from my wife, who heard from the mother of Atkia Begum." As a Commissioner before whom evidence is taken does not rule points as to the admissibility of evidence, it may be impossible to prevent questions and answers such as these appearing on the face of depositions. That, however, is not the point. The point, is that the deposition appears to have been read in evidence as it stood, without any objection having been made to this undoubted hearsay. The evil consequence of the admission of such evidence as this is not merely that it prolongs litigation, and increases its costs, but that it may unconsciously be regarded by judicial minds as corroboration of some piece of evidence legally admissible, and thereby obtain for the latter quite undue weight and significance. The litigation was prolonged. It developed into many branches. The case of the plaintiff, as it progressed, took dissimilar shapes. Conflicting and irreconcilable contentions were from time to time put forward on his behalf, and as each of these was fashioned, evidence was forthcoming to sustain it, often in conflict with that previously adduced to support the earlier contention. It is much to be regretted that the respondent has not appeared on the hearing of this appeal. He has chosen, however, not to do so, and their Lordships have therefore felt it incumbent upon them to examine the evidence from every point of view, and to consider possible suggestions and contentions which, had he appeared, might not have been made or relied upon on his behalf. To turn to the facts. (The judgment here dealt with facts and proceeded.) The Subordinate Judge found that the case as to the marriage at Mecca was utterly false; that the witnesses in support of it had grossly lied. To turn to the facts. (The judgment here dealt with facts and proceeded.) The Subordinate Judge found that the case as to the marriage at Mecca was utterly false; that the witnesses in support of it had grossly lied. He therefore decided the first issue in the negative, and that being so he said : "It was not necessary to go into the second." But, he observed, "it is obvious, under the Mahomedan law, that after the death of the parent of defendant No. 1 (i.e., Atkia) her paternal uncle could only give her in marriage. Najm-un-nisa could not, even if authorised by Jail Khan. It is urged now for the plaintiff that the defendant No. 1, assented to the marriage. This is not mentioned in the plaint, and the plaintiff's pleader stated, on the 15th May 1908, that it was Najm-un-nisa, who gave the defendant in marriage." The Subordinate Judge was right in this matter. The pleader for the present respondent had so stated because, apparently, it was believed that the alleged nuncupative will of the deceased would have entitled her so to do. The Subordinate Judge proceeded to deal with the point of the appellant's age. He pointed out that she said at first she was 12 or 13, and then said she was 13 or 14, that her grand mother said she was in her fifteenth year, but that in the latter's application of the 23rd December 1907, she had stated that the girl's age was 13 years, so that she was evidently a minor. He further stated that he would find the second issue in the negative, and that there was no evidence that she had attained puberty, according to Mahomedan law, on the date of the alleged marriage. He therefore dismissed the suit. The principle of law here laid down by the Subordinate Judge is well established and was not disputed in any of the Courts below, but it is quite possible that Arusa Begum was not correctly advised as to it, or did not know it, and fancied, a nuncupative will of a father would be sufficient to confer authority to give his minor daughter in marriage." (After tracing the several stages of the case and discussing the evidence the Judgment proceeded as follows) The appellant was absolutely in the power of her grand mother after the death of the surviving parent. Her sister and brother were too young to be of help to her. Her father's friends and acquaintances were kept at a distance from her. None were bidden to her marriage. The High Court were of opinion that her evidence was worthless on the ground that she was not a free agent, but was completely under the influence of her uncle. But she could not have been under his influence more than she was, at the date of her marriage, under the influence of her grand-mother. And it can hardly be supposed that an old woman, who did not scorn to be a party to hurrying this friendless orphan girl into a marriage with her own nephew with such indecent haste would scruple to exercise her influence over the girl if she needed to do so. The learned Chief Justice expressed the opinion that there was no doubt a marriage was performed as the marriage of a girl who had arrived at maturity. Their Lordships cannot concur in that view. They think this is very doubtful. And because the evidence adduced by the respondent has, they think, failed to establish clearly that which it must establish clearly to entitle him to succeed, namely, first, that the appellant had attained puberty before the date of the marriage; and, second, that she was not then merely given away in marriage by her grand-mother, but had herself consented to the marriage and the performance of the ceremony, their Lordships are of opinion that the appeal should be allowed, the decree appealed from should be reversed with costs, and the decree of the Subordinate Judge of the 13th June 1911 be restored, and they will advise His Majesty accordingly. The respondent will pay the costs of the appeal. Appeal allowed.