1988 PLP 113 (CLC)

‑‑‑ Marriage‑‑Puberty of female‑‑Minor though not competent to enter into a contract of marriage, yet could be contracted in marriage by the guardian‑‑Specification of persons who could act as guardian‑ Marriage entered into by a female who had not yet attained puberty, was no marriage at all in the eyes of law and was therefore, void. Zafar Khan v. Muhammad Ashraf Bhatti and others P L D 1975 Lah. 234 ref. (d) West Pakistan Family Courts Act (XXXV of 1964)‑‑ ‑‑‑5. 23‑‑Provisions of S. 23 does not either prohibit or preclude a party to prove his correct age and on its basis to claim relief from the Court‑‑Marriage entered into by a female who had not yet attained puberty, was no marriage at all in the eyes of law and was, therefore, void‑‑On the finding that female was minor and had not attained puberty at the time of her marriage, she could legitimately repudiate the contract of marriage after attaining puberty‑‑Such remedy is not barred by S. 23. (e) West Pakistan Family Courts Act (XXXV of 1964)‑‑ ‑‑‑5. 23‑‑Muslim Family Laws Ordinance (VIII of 1961), S. 13‑ Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(vii)‑ Marriage‑‑Minor female‑‑Rukhsti did not take place and marriage was not consummated‑‑Contract of marriage when female was minor was a void contract‑‑Minor female even if given in marriage by her mother who was competent to do so, minor was still entitled to repudiate her marriage in exercise of her right of option of puberty. (f) Child Marriages Restraint Act (XIX of 1929)‑‑ ‑‑‑Ss. 3 & 6‑‑Violation of the provisions of the Act‑‑Effect‑‑Provisions of Act XIX of 1929 do not render the marriage invalid though it makes punishable a marriage made in violation of its provisions. [ Mirza Abdul Aziz for Appellant. Date of hearing: 27th September, 1987. This Intra‑Court Appeal is directed against an order dated 24‑8‑1987 of learned Single Judge dismissing the appellant's writ petition. It arises out of a matrimonial dispute. Necessary facts for decision of the points in the appeal are:‑ Mst. Parveen Akhtar, respondent was married to Ghulam Qadir, appellant, on 11‑3‑1978. Their marriage was formally registered with Nikah Registrar under section 5 of Muslim Family Laws Ordinance, 1961. Mst. Parveen Akhtar, claimed that at the time of her Nikah with appellant, she was minor and her age was 14 years. She further claimed that the marriage was not ratified and that she in exercise of her right of option of puberty had repudiated it on 15‑12‑1981. On these allegations, she approached the Family Court at Murree for dissolution /annulment of her marriage with the appellant. Appellant resisted the suit. It was pleaded that at the time of marriage, respondent had attained puberty and was of 18 years of age. On these facts, claim for exercise of option of puberty was denied. Appellant also filed a suit for restitution of conjugal rights against respondent before the Family Court at Rawalpindi. However, this suit was transferred to the Family Court at Murree for its analogous trial with suit for divorce. In defence to the suit for restitution of the conjugal rights, respondent averred that contract of marriage, in successful exercise of her right of option of puberty, had come to an end. Apart from the option of puberty, respondent had also claimed 'khula' divorce. Attempts at reconciliation having failed at pre‑trial hearing, learned Judge Family Court, framed issues, recorded evidence thereon, and, again, made another attempt for bringing about a compromise between the parties which also failed. Thereafter, on consideration of evidence and hearing of the parties, learned Judge found for the respondent and gave her a decree for annulment of marriage. Respondent was adjudged minor at the time of her Nikah and was further found entitled to exercise the right of repudiating the marriage made during her minority. As no appeal lay, appellant filed an application under Article 199 of the Constitution before this Court and challenged the decision. This petition did not succeed and was dismissed in limine on 24‑8‑1987. Before the learned Single Judge, two pleas were taken, one, that section 23 of Family Courts Act 1964 precluded the Court to question the validity of the marriage registered in accordance with the provisions of Muslim Family Laws Ordinance 1961 and, secondly; that the respondent was a public at the time of her marriage. The order, under appeal, would indicate that both these pleas were not accepted by learned Single Judge. Aggrieved of the decision, appellant has come up in further appeal to this Court. On his behalf, those very pleas which had not found favour with the learned Single Judge, have been reiterated at the hearing. It was contended by Mirza Abdul Aziz, Advocate that section 23 of the Family Courts Act had not received proper consideration from the learned Single Judge. It was also submitted that except for fraud, forgery or when the marriage was otherwise void, Family Court, on plain terms of section 23, was precluded from questioning the validity of marriage and it was also prohibited from receiving any evidence in regard thereto. Learned counsel further submitted that Nikahnama indicated that respondent was 18 years of age. Having signed this document, it was neither open to the respondent to question its entries nor entry in the School Leaving Certificate in regard to respondents' age, was sufficient to establish her minority. Learned counsel pointed out that the best evidence namely entry in the birth Register, an extract from the Chawkidar's register or an entry from the records maintained at the police station to show the exact date of birth of respondent was withheld from the Court and, therefore, an adverse presumption should be raised against her. Except for the pleas noted above, learned counsel did not address the Court on any other point. After having heard the learned counsel at length and looking through the records, we express our inability to agree with the learned counsel because the pleas raised have no substance. Points arising for our decision in the appeal are as to the age of the respondent at the time of her marriage with appellant and the effect of section 23 of Family Courts Act on the claim set up by the respondent. For proper decision of these points, reference to principles of Mohammadan Law on the subject of marriage is necessary. In regard to capacity of marriage, pare‑251 of Mohammadan Law by Mulla states that every Mohammadan of sound mind who has attained puberty may enter into a contract of marriage. In the absence of l evidence, puberty is presumed to have been attained on completion of the age of fifteen years. By section 13 of Muslim Family Laws Ordinance 1961, in clause (VII) of section 2 of Act No.VIII of 1939 (Dissolution of Muslim Marriages Act 1939), the word '15' was substituted by the word '16'. This amendment, however, does not lay down that the female attains puberty at that stage only. It simply enables a girl to exercise the option of puberty when she attains the age of 16 years, whereas, in accordance with the unamended clause (VII), if given in marriage before a female attained 15 years, she could exercise her right of option of puberty after attaining the age of 15 years and before reaching the age of 18 years provided the marriage was not consummated. See Zafar Khan v. Muhammad Ashraf Bhatti and others; PLD 1975 Lahore

234. It may also be observed that the provisions of Child Marriages Restraint Act (XIX of 1929) do not render the marriage invalid though it makes punishable a marriage F made in violation of its provisions. As to the age of respondent No.2, apart from the oral testimony including the statement on oath made by respondent Mst. Parveen Akhtar, reliance was placed on an entry in School Leaving Certificate EXt.P.l which indicated her date of birth as 20‑4‑1964. Headmistress of the Girls Middle School appearing as PW.4, deposed that respondent No.2 was admitted to the school on 20‑4‑1970, and was discharged from the school on 11‑3‑1973. Her testimony was not subjected to cross‑examination. In the circumstances, appellant shall be deemed to have accepted that part of her testimony which relates to the entries in School Leaving Certificate. No doubt, entry from birth Register has not been produced. Had it been brought on record, it certainly would have carried more weight as against the entries in the records of Educational Institution. However, there is no indication on record that entry from Birth Register was available. If it were, appellant would certainly have put it in evidence to discredit the School Leaving Certificate. In accordance with the statement of PW.4, respondent No.2 was admitted to the school on 20‑4‑1970 and her date of birth was recorded as 20‑4‑1964. Ordinarily, minor girl of 5/6 years of age would not herself go to school to seek admission. There is a presumption that somebody closely related to her and acquainted with her age must have accompanied her and provided the particulars to the school authorities. The entry regarding the, age of the respondent in the school register, therefore, is clearly admissible. It is also to be noticed that there was no occasion for anybody to give her false age at the time of her admission to the school. In the absence of other reliable evidence, oral evidence adduced by respondent in regard to her age and the entry in the school records cannot be lightly ignored. On consideration of the entire evidence, original Court who had the additional advantage of watching the demeanour of the witnesses, concluded that age of respondent No.2 at the time of her Nikah was fourteen years and that she had not by then attained puberty. There is no indication on record that respondent No.2 had received signs of puberty prior to date of her marriage. This finding in regard to minority is clearly a finding of fact and was binding. On the material available, therefore, there is no doubt that at the time of marriage, respondent No.2 was minor and had not attained puberty. It was not denied that respondent's father and brothers were alive, though the father was stated to be blind and physically debilitated. As said above, every Mohammedan of sound mind who has attained puberty can enter into a valid contract of marriage. In case of minors, though they are not competent to enter into a contract of marriage, but they may be contracted in marriage by their guardians. Para 271 of principles of Mohammadan Law by Mulls, specifies the persons who can act as guardian for the minors in regard to their marriage. Though it was sought to be established in evidence that respondent No.2 was given in marriage by her mother, yet from Nikahnama Ext.P.2, it clearly appears that she contracted marriage herself showing that she was major. Argument of the learned counsel that entry in regard to age in Ext. P.2 cannot be questioned, does not appear to be correct and sound. Section 23 of the Family Courts Act does not either prohibit or preclude a party to prove his correct age and on its basis to claim relief from the Court. It was not denied nor it could be that a marriage entered into by a female who had not yet attained puberty, was no marriage at all in the eyes of law, and, was, therefore, void. If this be so, section 23 did not bar the right of respondent, to claim that her marriage with appellant was not legal and that it be' declared as such. On the finding that respondent No.2 was minor and not attained puberty at the time of her marriage, she could legitimately repudiate the contract of marriage after attaining puberty. Section 23 does not bar such a remedy. It is open to doubt whether in presence of father and brothers, mother could give respondent No.2 in marriage. However, in the absence of adequate material we do not express our considered opinion on this point and would like to observe that the contract of marriage (when respondent No.2 was minor, was a void contract. Even if it be assumed that respondent No.2 was given in marriage by her mother and that the latter was competent to do so, respondent No.2 was clearly entitled to repudiate her marriage in exercise of her right of option of puberty. It is common ground that Rukhsatti did not take place and the marriage was not consummated. Respondent No.2 apart from repudiating the marriage in exercise of option of puberty, had also claimed 'khula' divorce. However, in view of his finding on option of puberty, learned Family Judge did not record any decision on issue of 'khula'. Divorce suit was instituted on 10‑6‑1984 and since then parties are in litigation here does not appear to be a fair prospect of their coming closer to each other. In view of these and other relevant circumstances, we agree with the conclusions of learned Single Judge and decline to interfere. In result, this appeal fails. It is dismissed in limine. M.B.A./G‑98/L Appeal dismissed.