Case – Ghulam Sakina v. Falak Sher Allah Baksh, AIR 1950
Fact – It was alleged that she was never given in marriage to the defendant as he proclaimed it to be, that if any such marriage be held to have taken place during her infancy she never approved of it and had repudiated it.
The defendant maintained that the marriage was performed by her father when she was five years old, and that the parties had lived for some time as husband and wife and the marriage had been consummated.
The plaintiff made a request to the Court that the defendant be directed to disclose the exact time when the marriage was consummated.
The marriage between the parties is recorded in the marriage register marked Ex. D-2. It was performed by the father as guardian on 23rd November 1932.
The trial Judge found that the plaintiff was married by her father during her infancy in 1932 and that there was no credible proof of the consummation of marriage. On these finding the plaintiff was awarded a decree.
On appeal by the defendant, the learned District Judge, Mianwali, came to a contrary conclusion as to the consummation of marriage and for that reason accepted the appeal.
Issue – Whether the plaintiff had repudiated her marriage in accordance with the requirements of S. 2, Dissolution of Muslim Marriages Act, 1939?
Contentions and Judgement
- Section 2. A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely- (vii) that she having been given in marriage by her father or other guardian before she attained the age of 15 years repudiated the marriage before attaining the age of 18 years provided that the marriage has not been consummated.
- It would not be disputed that the plaintiff was married by her father long long before she was 15 years old and the suit for dissolution of marriage was instituted on 29th August 1945 when she was about 14 years old according to her birth entry and about 17 years old according to medical testimony; in any case before she attained the age of 18 years.
- The correspondence clearly revealed that during the year 1944 there were dissensions between the couple and they did not live together.
- The marriage under Muhammadan law is in the nature of a contract and as such, requires the free and unfettered consent of the parties to it. Normally speaking, a man and a woman should conclude the contract between themselves but in the case of minors, i.e., who have not attained the age of puberty as recognised by Muhammadan law, the contract might be entered into by their respective guardians.
- The contract of the father or the father’s father stands on no higher footing than that of any other guardian and the minor could repudiate or ratify the contract made on his or her behalf during the minority, after the attainment of puberty.
- “Puberty” under Muhammadan law is presumed, in the absence of evidence, on completion of the age of 15 years. It would, therefore, necessarily follow that the minor should exercise the option after the age of 15 years.
- Anything done by the minor during the minority would not destroy the right which could accrue only after puberty. The co-habitation of a minor girl would not thus put an end to the “option” to repudiate the marriage after puberty. The assent should come after puberty and not before, for the simple reason that the minor is incompetent to contract; nor should the consummation have taken place without her consent.
- This assent might either be express or implied. It might be by words or by conduct like cohabitation with the husband. It is also essential that agirl should be aware of the marriage before she could be expected to exercise her option.
- In the present case, the plaintiff at the time of the alleged consummation, was still below 15 years and assuming consummation to be a fact, it could not destroy her right to repudiate the marriage after she had attained the age of 15. She had three years within which to proclaim the exercise of that right and the institution of a suit was one mode of proclaiming it. The plaintiff had not therefore lost her right to repudiate the marriage given to her by law.
- For the reasons given above I would accept this appeal, set aside the judgment and decree of the learned District Judge and restore that of the trial Judge and decree the plaintiff’s suit with costs throughout.
