Ghulam Sakina v. Falak Sher Allah Baksh, AIR 1950 Case Analysis

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MOHD. SHARIF, J. – This second appeal by the plaintiff arises out of her suit for dissolution of marriage. 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 and that she was a Sunni girl and the defendant was a Shia and the marriage between them was not good. The defendant maintained that the marriage was performed by her father when she was five years’ old, that his marriage was an exchange marriage in lieu of the marriage of his own sister with the uncle of the plaintiff and that the parties had lived for some time as husband and wife and the marriage had been consummated. It was denied that the defendant was a Shia; both the parties belonged to the Sunni sect. The trial Judge found that the plaintiff was married by herfather during her infancy in 1932 and that there was no credible proof of the consummationof marriage. The issue as to the parties belonging to different sects was not pressed. 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. The plaintiff has now come up in second appeal.

2. 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 father examined as P.W. 1 had to admit this. The plaintiff according to the birth entry produced by her, was born on 13th November 1931, i.e., she was about a year old when the marriage is said to have been celebrated. It is common ground that the plaintiff is the only daughter of her parents. This, coupled with the statement of Ghulam Rasul, D.W. 7, the Nikah Khawan, that the girl was, at the time of the marriage, stated to be 3 or 4 months old and Falak Sher defendant about 5 or 7 years old, would demonstrate that the birth entry of 13th November 1931 related to the plaintiff herself. This is not in any way weakened by the evidence of Dr. Utam Chand P.W. 10 who examined the plaintiff as to her age and according to his estimate, she was about 17 years old at the time of the examination.

3. The sole question for decision in this case is whether the plaintiff had repudiated her marriage in accordance with the requirements of S. 2, Dissolution of Muslim Marriages Act, The relevant portion is reproduced below:
   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.

4. 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.

5. The evidence as to the alleged consummation is of very unsatisfactory character. The approximate time at which this took place, was not at all specified in the statement filed by the defendant. In para 2, “about one year ago” was written but these words were scored through. Before the issues, the plaintiff made a request to the Court that the defendant be directed to disclose the exact time when the marriage was consummated. The defendant evaded this
   enquiry by stating that the matter could be ascertained during the course of his cross examination and the trial Court left it at that. It was desirable that the defendant should have been made to specify approximately, if not exactly, the time when the parties were said to have lived as husband and wife.

6. The learned District Judge held the consummation of the marriage proved as (N)o less than two persons who were examined as respectable witnesses by the plaintiff, admitted in the lower Court that the marriage had been consummated. It is immaterial that they were related to the defendant because in cases of the present type
   the relations of the parties are the most natural witnesses and their evidence is entitled to due weight. Nor is this all. The plaintiff was pointedly asked to submit herself to medical examination in order to ascertain whether she was still a virgo intacta as claimed by her. She had not however the courage to be examined by the doctor and a
   very strong presumption naturally arises that the marriage has been consummated.

7. The two persons referred to by the learned District Judge were apparently P.W. 2 Muhammad Niwaz and P.W. 7 Allah Bakhsh, the former is the brother of the defendant and the latter is the father. Both these persons had to be examined with reference to some of the letters exchanged between the father of the plaintiff and the defendant’s father. These letters indicated that the plaintiff’s father was not willing to send her to the house of the defendant and
   the marriage was said to be no longer in force. The correspondence clearly revealed that during the year 1944 there were dissensions between the couple and they did not live together. The production by the plaintiff of P.W. 2 and P.W. 7 could not attract the remarks made by their Lordships in Shatrugan Das v. Sham Das [AIR 1938 PC 59]. There the plaintiff himself refrained from giving evidence on his own behalf and adopted instead the tactics of calling
   Sham Das defendant 1 as a witness for the plaintiff with the usual result that important features of his case were denied by his own witness. Their Lordships condemned this practice and approved of the course taken by the High Court in treating the plaintiff as a person who put defendant 1 forward as a witness of truth.

8. The case for the defendant as disclosed during the course of the trial was that there was a rapprochement between the parties about December 1944 and after that the plaintiff went to live with the defendant as his wife. The evidence of this rapprochement has been discussed and examined in detail by the 1st Court and the lower appellate Court had nothing to say about it. On a reconsideration of this evidence, there does not appear to be any reason to differ from the conclusions of the trial Court. There was a good deal of discrepancy in the statements of
   the witnesses regarding the taking of a second marriage party to the house of the plaintiff after the alleged compromise and no good reason could be adduced to discredit the evidence led by the plaintiff that she all along lived in her father’s house and did not go to the house of the defendant.

9. Much capital was sought to be made out of the refusal of the plaintiff to submit to medical examination. It was urged that she had once been examined by a male doctor and if she was honest in her assertions, there should have been no objection on her part to an examination by a lady doctor. The medical examination was evidently made in support of her claim that she was below 18 years as required by S. 2, Dissolution of Muslim Marriages Act. A similar argument was advanced with success in Atkia Begum v. Muhammad Ibrahim [36 I.C. 20]. At p. 25, Col. 1, it was noted that the learned Judges of the High Court had thought that the lady’s refusal to submit to medical examination was very significant that it showed the respondent’s bona fides in the truth of his case; that he was suggesting a test which if his case was false, would have put him out of Court; that a lady doctor could have given most valuable evidence on these points even without a minute examination as to whether the appellant was a
   virgin or not and that a medical examination would have been of the utmost value… Their Lordships of the Privy Council did not agree with these remarks.

The refusal of the plaintiff to have her examined by a lady doctor could not, therefore, be taken to be a proof of the consummation of marriage which should have been proved as a fact on the consideration of the entire evidence in the case.

10. The real significance of “option of puberty” and the manner how is it to be exercised, seems to have been not properly grasped or appreciated. 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. Before the Dissolution of Muslim Marriages Act, 1939, a minor girl given in marriage by the father or the father’s father, had no option to repudiate it on the attainment of her puberty but this has now been changed. 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 unless there was evidence to the contrary that the puberty had been attained earlier and the burden of proving this shall lie upon the person so pleading. 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 [Baillie 1.59 and Abdul Karim v. Amina Bai, AIR 1935 Bom 308]. 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.

11. 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.
12. 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.