P L D (PLP)

KAIKAUS, J.‑Mst. Daulan appellant filed a suit against Dosa respondent for cancellation of her marriage on the ground that the marriage had been performed under coercion and undue influence and that in any case her marriage having been performed by a guardian, she, having attained puberty about twenty days before the suit, was entitled to a dissolution. The defendant‑respondent denied the allegations of coercion and undue influence and objected that the plaintiff not having attained the age of fifteen years the suit was pre mature. He pleaded too that the plaintiff had not attained puberty. Various other issues were raised with which we are not now concerned. The learned Subordinate Judge did not find any evidence on the issue of coercion and undue influence and decided the issue against the plaintiff. On the question, however, of the exercise of the option of puberty the learned judge came to the conclusion that the plaintiff, though only twelve or thirteen years of age, had attained puberty and that the suit was not premature. In view of these findings he decreed the suit. On appeal the learned District Judge came to the conclusion that on a proper interpretation of section (2) (vii) of the Dissolution of Muslim Marriages Act, 1939, the option granted by that subsection could only be exercised after the completion of fifteen years. Without going into the question as to whether the plaintiff had in fact attained puberty or not he accepted the appeal and dismissed the suit. The plaintiff has appealed. There is a preliminary objection to the hearing of this appeal. After arguments had been heard for sometime it was discovered that the' appeal had been filed through a next friend. In view of the recent decision of a Division Bench of this Court in P L D 1951 Lab. 408, the appellant having attained puberty was a major for the purpose of a suit for dissolution of marriage and the appeal ought to have been filed by the plaintiff herself. When this defect, was discovered, counsel for the appellant asked for time to get a power of attorney direct from the plaintiff appellant. Now that the power of attorney has been placed on the file the learned counsel for the respondent objects that there was no valid appeal before the Court till the power of attorney was filed and as that event took place after the expiry of limitation, the appeal is in any case time‑barred. The law as to effect of a suit by a major being filed through a next friend is not in doubt so far as this Court is concerned. In Amritsaria v. Gamun (A I R 1925 Lah. 82), a suit had been instituted in the name of a plaintiff who was shown as minor but in fact was major. The plaint was amended at a date when the suit had become barred by limitation. It was held that the suit was validly filed within the period of limitation. In Ghasi v. Manga arid another (A I R 1932 Lah. 322), it was held after a review of authorities that when a person in fact a major files a suit through a next friend the question whether the suit should be allowed to be continued by an amendment after the expiry of limitation is a question of bona fides. Amendment is in the discretion of Court and without committing myself to the proposition that want of good faith (in the sense in which the phrase is used in the Limitation Act) would necessarily entail the refusal of a prayer for amendment, I would hold that if a proceeding is filed in good faith through a next friend, though the party is in fact a major, an amendment ought to be allowed. Learned counsel for the respondent does not seriously contest this proposition but says that in this case 'good faith' is lacking. He says that the learned counsel for the appellant could easily have found out that in such a case the appeal ought to be filed by the appellant herself. I do not think that in this case lack of due care can be attributed to the counsel for the appellant. The question whether the appeal should have been preferred by the appellant herself or through a next friend was a matter not free from difficulty till it was decided by a Division Bench in the case above referred to. The plaint in this case had been filed through a next friend. No objection was taken on behalf of the defendant that as the plaintiff was claiming to have attained puberty it was she herself who ought to have filed the suit. The preliminary objection is over‑ruled. The title of the appeal‑should be amended by striking off the name of the next friend. On the merits the decision of the question whether option to repudiate the marriage can be exercised before completion of fifteen years depends upon the interpretation of section 2 (vii) of the Dissolution of Muslim Marriages Act, 1939. The provision runs as follows : "

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 fifteen years, repudiated the marriage before attaining the age of eighteen years;" Learned counsel for the appellant argues that the section nowhere lays down that in order that a woman may be entitled to repudiate the marriage performed by her guardian she must have attained the age of fifteen years. According to him all that is required is that she should have repudiated the marriage before she attains the age of eighteen years: There is no doubt that the section nowhere lays down in so many words that this repudiation cannot come before the attainment of the age of fifteen years. The result of this interpretation, however, would be that if the marriage of a girl of six was performed by her guardian, the very next day she could by her repudiation dissolve it. The Muslim Law on the subject before the enactment of the Dissolution of Muslim Marriages Act, 1939 (shorn of some details not at present relevant) was that a woman whose marriage had been performed by her guardian could on the attainment of puberty repudiate the marriage provided she had not, after the attain ment of puberty, consented to or acquiesced in it. To accept the interpretation of the learned counsel for the appellant would be to give to every girl who has not yet attained puberty an option of repudiating her marriage, which is neither in consonance with Muslim Law nor would be justified on any principle. The option of puberty of Muhammadan Law is only a right giver to a minor party to a contract to avoid the contract entered into by her guardian on becoming sui juris, As the preamble shows, the Dissolution of Muslim Marriage Act. 1939, does not purport to effect any change ire Muhammadan Law but to clarify and consolidate it. Wets will not, therefore, adopt any interpretation, which effects a fundamental change unless we are forced to do so Clause (vii) is capable of an interpretation that repudiation takes place when the age of fifteen has already been reached. The words 'before she attained the age of fifteen years' can quite properly be interpreted as implying that she has already attained the age of fifteen when she repudiates the marriage. Under Muslim Law there is a presumption of attainment of puberty at the age of fifteen, but this presumption is rebut- able. Clause (vii) of section 2 adopts fifteen as the fixed age of puberty without an opportunity of rebuttal. This clause does not speak of puberty at all, but only of an age though in fact it deals with the option arising at puberty, and the only way in which it can be reasonably interpreted is that a woman who has before the age of fifteen years been given away in marriage by her guardian is allowed to repudiate her marriage for a period of three years after she attains the age of fifteen and before she attains the age of eighteen. The clause eliminates the fight over proof of puberty. I may mention a possible argument. The word repudia tion it may be argued would imply puberty on the part of the person repudiating. The result of this interpretation would, however, be that although the repudiation comes after fifteen it will be open to the husband to prove that puberty had not been yet attained and to defeat the suit on that ground. The clause does not contemplate such a defence and gives a right after fifteen which is not subject to disproof of puberty. I would, therefore, agree with the learned District judge with respect to the interpretation he has placed on the clause. That, however, does not conclude the matter. Next question to be determined is: Does this clause contain the whole of the Muslim Law regarding option of puberty? Is this clause exhaustive and has a woman no right beyond the limits of this clause of repudiation of her marriage performed by her guardian before she attained puberty? As already, stated the Dissolution of Muslim Marriages Act, 1939, is designed to clarify and consolidate the provisions of the Muslim Law. As it is a consolidating Act it may be argued that there should be no relief beyond its provisions. However, the Act is careful and after enacting in section 2, eight clauses, which contain grounds for dissolution of marriages, provides a ninth clause which runs :‑ "(ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim Law :" It is obvious that the intention was to preserve every ground of dissolution available in Muhammadan Law. The consequences of regarding this clause as exhaustive would be the following :‑ (1) A woman, who is married before she has attained puberty, but on the completion of fifteen years, would be left entirely without a remedy. If a girl 'attained puberty when she was fifteen years and two days of age, and on the day when she attained the age of fifteen years or the next day she was given in marriage by her guardian, this clause would afford her no relief. (2) A girl, who attains puberty at the age of eleven or less but has already been given in marriage by her guardian, will be forced either to accept her husband or to wait for four years or more. If she repudiates her marriage before fifteen, according to this clause, marriage will still be valid, though according to Muhammadan Law it stood dissolved by her repudiation. (3) A woman who is not aware of the marriage till the age of eighteen, would be entirely without a remedy, though the marriage may never have been consummated. I do not think these are results which were at all contemplat ed by the legislature. The legislature is presumed not toy make any far‑reaching changes in the existing law without snaking itself amply clear and in the present case the Act only purports to clarify the law and has provided a saving clause in section 2, keeping all existing grounds of dissolution intact. D It may also be pointed out that clause (vii) deals only with respect to the option of puberty of a woman while the Muslim Law grants option of puberty not only to a girl but also to a boy whose marriage had been performed during his minority by his guardian. While, therefore; I agree with the learned District Judge that clause (vii) by itself does contemplate only repudiation after fifteen, I am satisfied that this clause does not exhaust the whole of the right which a Muslim woman has with respect to a marriage performed by a guardian before the attainment of puberty, and that all rights of dissolution by exercise of the option of puberty available under Muhammadan Law are intact. The learned District judge having decided on a preliminary ground the case will have to go back to him for a decision on merits. I may point out that now that the plaintiff can claim only under the general Muhammadan Law her right will be subject to all the limitations and conditions of Muhammadan Law except to the extent to which they may be held to have been removed by `clarification' in the Dissolution of Muslim Marriages Act, 1939. This marriage was performed by the father. Under Sunni Law the marriage performed by a father or grandfather was not subject to the option of puberty unless it was shown to be performed negligently or fraudu lently. The reason for this distinction is stated in the Hedaya to be that the father and grandfather are presumed not to act from sinister motives. Really it is a presumption of fact rebutted by proof that the benefit of minor had not been safeguarded. There are allegations in the plaint as to the circumstances under which the marriage was performed though they were not made with the object of showing that the marriage, though performed by the father, was subject to the option of puberty. It can be urged that by clause (vii) the legislature has clarified that a father is in this respect on the same footing as the guardian. The point not having been argued before me I express no opinion. All these are matters for the learned District judge to decide. There is one thing, however, which I want to make clear. Should the plaintiff's right to get this marriage dissolved be subject to proof that the marriage was negligently or fraudulently performed and these facts be not proved, she will not lose her remedy altogether but will only have to wait till she attains the age of fifteen years when she could file a suit on the ground that she has repudiated the marriage after she attained the age of fifteen years. This appeal is accepted and the case remanded to the learned District Judge, Sargodha, for a re-decision. Parties shall bear their own costs of this appeal. Appeal accepted. K. B. A Case remanded.