1984 PLP 809 (SCMR)

M. S. H. Quraishi, J.‑The facts giving rise to this petition are that Mst. Kaniz Akhtar who had been married to Muhammad Anwar respondent on 28‑4‑1965 die; on 11‑2‑1967 without consummation of the marriage. Mutation of inheritance of her property was attested at No. 2762 dated 5‑7‑1968, giving Muhammad Anwar his share as husband. This was chal lenged by a suit brought by Ali Umar, her brother (petitioner No. 1) and Mst. Zulekha, her mother, (since dead and represented by petitioner No. 1) for a declaration tot the said mutation was ineffective against their rights and that Muhammad Anwar could not get any share in the inheritance from Mst. Kaniz Akhtar on the ground that she being a minor at the time of the marriage, the nikah was invalid, that on attaining puberty she had repudiated the marriage and that she had also been divorced by her husband. The trial Court food in favour of the plaintiffs and came to the conclu sion that there vas no relationship of husband and wife between the respon dent and Mst. Kaniz Akhtar and accordingly decreed the suit. On appeal, however, the decree was set aside. The plaintiffs then filed revision before the Peshawar High Court, in which they pressed the only point that the nikah of Mst. Kaniz Akhtar with the respondent was illegal being violative of the provisions of they Child Marriage Restraint Act inasmuch as she was below the age of 16 at the time of the marriage. The contention did not find favour with the High Court as it held relying on Mst. Bakhshi v. Bashir Ahmad (P L D 1970 SC 323), that even if she was below 16, her marriage did not become invalid on that score and that in any case she would not be less than 16 years of age in 1965 when she was married to the respondent". The High Court also noticed that the deceased and Ali Umar petitioner had jointly sold some property on 15‑1‑1966 and found force in the submission that as no sale could be validly effected by a person below 18, she was already above that age in January 1966. The High Court, therefore, dis missed the revision.

2. It seems that serious attention was not given to certain circumstances about the age of the deceased. Firstly, the register Exh. P. W. 2/3 shows that on 11‑2‑1967, i.e. at the time of her death, she was 15 years of age which means that she had been born in 1952. Thus at the time of nikah in 1965, she could be less than 14 years of age. Secondly, Dure Aman (D. W. 1) Mukhtar of the defendant, admitted that her age at the time of nikah was 14 years, thirdly, the evidence of both the parties showed that when the father of the deceased returned to the country in 1949, she was not yet born. She could thus be only 14/15 (if born in 1950/1951) at the time of nikah in 1965. Fourthly, her age mentioned in the nikahnama was

17. Fifthly, at the time of the sale mutation, the mother, according to Ali Umar had acted as guardian for both.

3. In the circumstances, the, following questions would arise for circum stances : (1) Is the inference as to the age of the deceased drawn by the High Court correct ? If not, what was the age of the deceased at the time of the nikah and with what effect on the validity thereof‑if she was less than 15 years, less than 16 years or less than 18 years‑and whether it could be validly performed without a wali for nikah? The Federal Shariat Court's judgment in Muhammad Imtiaz and another v. The State P L. D 1981 F S C 308 would require examination. (2) The effect of the observations in Mst. Bhakshi v. Bashir Ahmad, P L‑ D 1970 S C 323 in the light of the further observations in that regard in Muhammad Azam v. Muhammad Iqbal and others P L D 1984 S C 95 at p. 132 also requires examination.

4. Leave to appeal is, therefore, granted Security Rs. 2,

500. S. Q. Leave granted.