P L D 1952 Dacca 272 (PLP)

K. M. Hassan for Appellant. A. K. M. Baquer with A. S. M. Mof akher for Respondent. SHAHABUDDIN, C. J.‑

This appeal arises out of a suit filed by the respondent for dissolution of her marriage with the appellant on the grounds that the latter had neglected or failed to provide for her maintenance for a period of over two years, that he had also failed to perform without reasonable cause his marital obligations for over a period of three years, that she was given in marriage by her father at the age of three, that she repudiated the marriage after attaining puberty but before she attained the age of 18 years, and that in the meanwhile the marriage was not consummated. The appellant's defence was that the r fourteen or fifteen years old when she was married, he himself was over twenty years old, that the contract was entered into by the respondent herself, that the marriage was consummated and a child was born to her by him, which, how ever, died, that the respondent again conceived but there was an abortion and that in 1944, she went to her father's house and did not return. The allegation that he did not support her or discharge his marital obligation was denied. The trial Court accepted the case of the respondent and decreed the suit. This decision was confirmed in appeal by the learned Additional District Judge, Faridpur. Hence this second appeal. The Courts below recorded a finding that the plaintiff was three years old at the time of the marriage, that soon after attaining puberty she repudiated the marriage and at that time she was fifteen to eighteen years of age and that there was no consummation of the marriage. They also found that for a period longer than two years the appellant did not maintain the respondent. Curiously enough they recorded a further finding that the appellant failed to discharge his marital obligations for a period of three years although they had come to the conclusion that soon after attaining puberty the respondent had repudiated the marriage. However it is clear from the judgment of the learned Additional District Judge that his conclusion was based on the first finding, that is, the finding that the respon dent was below fifteen years when she was married and that she repudiated the marriage before she attained her 18th year and that the marriage was not consummated. The learned Advocate for the appellant concedes that this finding is binding on us ; but he contends that the repudiation, even in the circumstances as found by the Courts below, does not dissolve the marriage according to the Muhammadan Law as it stood prior to Act VIII of 1939 and that this enactment under which such a repudiation would dissolve the marriage cannot apply, there being nothing in it to show that it has a retrospective effect. His argument is this : According to the principles of the Muhammadan Law, the option of a woman to repudiate the marriage, can be exercised only in respect of marriages which were contracted by her guardians other than her father or grand‑father. But in this case admittedly it was the respondent's father who consented to this marriage and there is nothing to show that he did so fraudulently or negligently or that the marriage was to the disadvantage of the respondent. This is not seriously disputed by the learned Advocate for the respondent, and from the books on Muhammadan Law, through which we have been taken, it is clear that this was the position before the Act referred to above was passed. But it is contended on behalf of the res pondent that there is nothing in this Act which justifies the contention of the appellant that it does not apply to marriages celebrated prior to its coming into force. Section 2, clause (vii) of the Act which has been applied to this case by the Courts below begins with the words : 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 Reading the section as it is, we find justification for interpreting the words "married under Muslim Law" as referring only to marriages subsequent to the coming into force of the Act. This section is clearly a declaratory one] and Maxwell in his Book on Interpretation of Statutes states on page 229 (9th Edition) that "If a Statute is III ids nature l declaratory Act, the argument that it must not be construed so as to take away previous rights is not applicable". It is then argued on behalf of the respondent that the law prior to the Act being what has been stated above clause (vii) of section 2 confers on Muslim women greater rights than what the law did ; while the preamble of the Act is not to enlarge those rights but only "to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriages by women married under Muslim Law . . . . . ." There is no force in this contention either. The question of interpretation arises only when there is ambiguity with regard to the words of the section. Where the section is very clear on the point, and we think it is, it is not necessary for us to consider the preamble. In any case, the preamble cannot restrict or extend the enacting portion. See Interpretation of Statutes by Maxwell, 9th Edition, page

48. We, therefore, see no reason to interfere. This appeal is dismissed with costs. ELLIS, J.--‑I agree. A. H. Appeal dismissed.