P L D 1962 Azad J & K 7 (PLP)

MUHAMMAD SHARIF, J.--‑Mst. Muhammad Bibi brought a suit in the Court of the Sub‑Judge, Mirpur against Raja defendant‑respondent on 3‑8‑59 for cancellation of her marriage with the defendant alleging that she had been given in marriage, by her uncle Fateh Muhammad, to defendant who was of the age of 50 years at a time when the plaintiff was a minor of the age of 10 ; and that now having attained the age of puberty at the age of 15 to 16 years she repudiates the said marriage. This plaint was drawn up on 30‑7‑59 Raja (Raj Muhammad) brought a suit for restitution of conjugal rights against Muhammad BIN and for an injunction against Mst. Shah Begum widow of Haider Bux and Imam Din son of Qadir Bux. This plaint was drafted on 31‑7‑59 but was instituted in the Court of the Sub‑Judge Mirpur on 1‑8‑

59. Both the suits were consolidated and decided by joint trial. Sardar Muhammad Ashraf Sub‑Judge, Mirpur by judgment dated 20‑12‑60 dismissed Muhammad Bibi's suit but decreed Raja's suit for rd restitution of conjugal rights. The plea of Raj Muhammad in his written statement was that Mst. Muhammad Bibi was not a minor and she had herself entered into the marriage contract. The following issues were framed :‑ (1) Did Fateh Muhammad, the uncle of the plaintiff, give her in marriage to the defendant while she was a minor out of self‑interest and greed and that she repudiated the marriage as soon as she came to know of it and, therefore, the plaintiffs s entitled to exercise her option of puberty ? (O. P. P.) (2) To what relief is the plaintiff entitled ? In Raj Muhammad's suit the following issues are framed :‑ (1) Did Fateh Muhammad, the uncle of the plaintiff, give her in marriage to the defendant while she was a minor out of self‑interest and greed and that she repudiated the marriage as soon as she came to know of it and, therefore, the plaintiff is entitled to exercise her option of puberty ? (O. P. D.) (2) Are the other defendants restraining Mst. Muhammad Bibi from living with the plaintiff ? (O. P. P.) On appeal, the learned District Judge of Mirpur, upheld the judgments and decrees of the trial Court and dismissed Muhammad Bibi's appeals in both the suits. Muhammad Bibi has now come up in second appeals from both the decrees though the learned District Judge bad disposed of the appeals by the same judgment. We also proceed to dispose of both the appeals by the same judgment. The trial Court as well as the lower appellate Court have both held that Muhammad Bibi was given in marriage while she was a minor. It was strenuously argued by Mr. Saraf, counsel for' the appellant, that the learned District Judge in spite of having found that the appellant bad been given in marriage while a minor had applied the wrong law to the facts of the present case. Mr. Saraf's contention was that the learned District Judge had applied the J & K State Dissolution of Muslim Marriages Act which was a bit different from the Dissolution of N5us‑n Marriages Act as it applied to Punjab and which was adopted by the Azad Government of the State of J & K vide the Azad Government Adaptation of Laws Act, 1959 and which came into force on 13‑1‑

59. Mr. Saraf's contention was that the present suit had been instituted during the month of July 1959, and that the old Act of the J & K State could not be applied to these suits since the Dissolution of Muslim Marriages Act as it applies to Punjab had come into force in the Azad J & K, territory much before the institution of the present suits i.e., on 13‑1‑

59. Under the old Act of the J & K State a Muslim minor girl could not avoid the marriage if she had been given in marriage by her father or father's father unless she proved that the marriage was to her manifest disadvantage. On going through the record we find that Mr. Saraf is correct. The Azad J & K Government vide Council Order No. 21/59 dated 12‑1‑59 promulgated the Azad Kashmir Adaptation of Laws Act, 1959 (Act I of 1959) which came into force immediately. By this Adaptation of Laws Act, the Dissolution of Muslim Marriages Act (VIII of 1939) as it applied to West Punjab was adopted by our Government. The old Act could apply to pending cases only but the present suits could not be said to be "pending cases" since the same were instituted during the month of August 1959 whereas the Dissolution of Muslim Marriages Act VIII of 1939 had come into force on 13‑1‑

59. By the Dissolution of Muslim Marriages Act, 1939, all restriction on the option of puberty in the case of a minor girl whose marriage has been arranged by a father or grandfather has been abolished, and under section 2 {vii) of the Act a wife is entitled to the dissolution of her marriage if she proves the following facts, namely, (1) the marriage has not been consummated, (2) the marriage took place before she attained the age of 13 years, and (3) she has repudiated the marriage before attaining the age of 18 years. The learned District Judge relying on the statement of Fateh Muhammad P. W. has held that Muhammad Bibi appellant was given in marriage by her grandfather. We do not agree with him there. Fateh Muhammad P. W. has stated that he had given the minor girl in marriage and then in answer to a Court question he stated that the mother had given the girl away in marriage and, further on, in answer to a question put by the defence counsel he stated that his (witness's father) had given the consent as also the brother and mother had also given the consent to the marriage of the minor girl. The grandfather might have consented to the marriage but the facts remained that the minor was given in marriage not by the grand‑father but by the uncle. However, in view of clause (vii) of section 2 of the Dissolution of Muslim Marriages Act, 1939 which is the law applicable in the present case, it becomes immaterial whether she was given in marriage by the uncle or by the grandfather. Since according to the prevalent law where a minor has been given in marriage by her father or other guardian before she attained the age of 15 years, she is entitled to repudiate the marriage before attaining the age of 18 years provided the marriage has not been consummated. The learned District Judge had, however, found that after she had attained the age of 15 years, the appellant had consummated the marriage, therefore, she was not held to be entitled to the benefit of the option of puberty. The appellant examined her uncle Fateh Muhammad who stated that he had given the appellant in marriage to the defendant‑respondent when the appellant's age was 12 or 13 years and that she had lived with the defendant very little. He stated that the defendant had been taking the plaintiff to her house but the defendant would run away from his house and return to her parents' house and that the plaintiff had repudiated her marriage with the defendant from the very beginning. He further stated that at the time of his making the statement on 14‑12‑1959, the plaintiff's age was 15 to 16 years. In cross‑examination, he stated that two to two‑and‑a‑half years back she had run away from the defendant's house for the last time, and this time she had remained at his house for two or three days. To a Court question the witness stated that he had not given the plaintiff in marriage but that she had been given in marriage by her mother. In answer to a question put by the defendant's counsel he stated that even his father had given permission for the Nil

58. The next defence witness is Walayat Hussain. It may be remarked here that Walayat Hussain was present in Court today when the case was being argued but the respondent was absent. This Walayat Hussain appears to be at the root of this litigation. He has betrayed his interest by being present though the respondent himself was absent. Walayat Hussain stated that at the time of Nikah, the age of the plaintiff was 18 or 19 years and that at present she is about 25 or

26. He, further, stated that the plaintiff had given consent to her marriage. Walayat Hussain is a first cousin of defendant‑respondent. To the same effect is the statement of Ch. Ghulab D. W. He also stated that at the time of the Nikah, the plaintiff was 18 or 19 years of age. We need not discuss the statements of the D. W. since they have been disbelieved by both the Courts below, who have held that the plaintiff was given in marriage while she was a minor. The learned District Judge has found that Khilwat Sahia had taken place, therefore, he has found that the marriage had been consummated but where is the evidence of consummation ? The plaintiff's evidence shows that she had not consented to the marriage and that she was constantly running away from the house of the defendant. The defendant was the proper person to depose about consummation. No husband consummates the marriage in the presence of anybody else. We have not come across any evidence on the record with regard to Khilwat Sahia even. Even if consummation had taken place it could not be said that the wife had given her free consent to such consummation. Consummation by force is not such consummation as would disentile the wife to exercise her option of puberty. Keeping in view the circumstances at a appellant had not accepted her marriage with the defendant and she was running away from her husband's house it would be hard to believe that she had given her free consent to consummation of her marriage with the defendant even if consummation had taken place. We are not prepared to believe that it has been proved on the record that the appellant's marriage with the defendant‑respondent had been consummated. Neither the defendant stepped into the witness box nor any question was put to the plaintiff‑appellant while she appeared as her own witness to show that the marriage had been consummated. The Lady Doctor has stated that at the time of examination i.e., 10th August, 1959 the plaintiff‑appellant was 17 to 18 years of age. Accordingly going back two years she was 15 to 16 years at the time of the institution of the suits, therefore, she had exercised her option of puberty before attaining the age of. 18 years and we hold that she was entitled to exercise the option of puberty. We, therefore, accept the appeals with costs and decreeing the appellant's suit for cancellation of marriage, dismiss Raj Muhammad's suit for restitution of conjugal rights and injunction. K. B. A. Appeals accepted.