P L D 1952 Lahore 548 (PLP)

RAHMAN, J.‑This order will dispose of two Regular Second Appeals Nos. 232 and 233 of 1950. They have arisen out of two suits, one brought by Behram Khan for restitution of conjugal rights against his wife, Mst. Akhtar Begum, and the other brought by the wife for a declaration that she was not the legally wedded wife of Behram Khan, or, in the alternative, for dissolution of her marriage with him. The trial Court decreed the husband's suit and dismissed that of the wife. On appeal, the learned District Judge, Attock at Campbellpur, reversed the decision and granted a decree to Mst. Akhtar Begum for dissolution of her marriage with Behram Khan, defendant. The parties were left to bear their own costs in both the Courts. The husband has, therefore, filed two appeals to contest the order which covered both the suits. The material facts are that Mst. Akhtar Begum was born on the 6th of October 1932, vide copy of her birth certificate Exh. P.

2. Her nikah with Behram Khan was read on the 30th of September 1946, when she was below

14. A gift of some land was made to her by the father of Behram Khan in lieu of dower and the mutation Exh. D. 14 was sanctioned in this connection on the 20th of October 1946. The learned District judge has found that the marriage, in fact, did take place and that the wife lived with the husband at village Jand and later at Quetta, till 7th of February 1947, when she finally left him. The husband had pleaded in the trial Court that the girl herself had contracted the marriage, she having attained puberty at that time, but this plea has been negatived by the learned District Judge. Indeed the finding of the learned District judge is that the girl had not yet attained puberty even when she finally left her husband's house, on the 7th of February 1947. Considering that she was still under 15 years of age on that date and there being no satisfac tory evidence to prove that she had reached pubescence, the conclusion appears to be correct. No reason has been shown for thinking that the finding of the learned District judge in this connection was vitiated by any error of law. In the absence of evidence to the contrary, a Muslim girl is presumed to have attained puberty at the age of

15. Of course, it is a question of fact in each case, and a girl may reach the puberty stage even earlier. I agree with the learned District Judge that no satisfactory evidence was produced in this case to shoe that Mst. Akhtar Begum attained puberty before the age of

15. The wife's case in the Courts below was that she had not given herself in marriage to Behram Khan but that her step‑brother, Shams Ali Khan, purported to act as her guardian, without authority and, therefore, the alleged marriage was of no legal effect. She, in the alternative, pleaded that she had, in any case, repudiated the marriage on attaining puberty. She asserted that her relations with her step‑brother, Shams Ali Khan, had been strained since her father's death which took place some nine years ago. The learned District judge definitely held that as the girl did not give consent to tier nikah and that further, as she did not yet attained puberty, even if she knew that her nikah was being read with Behram Khan, she was not legally competent to give any consent, and the nikah was void from the very beginning. This finding has been attacked as erroneous by Mr. Muhammad Shafi on behalf of the husband. Learned counsel has drawn a distinction between the age of discretion (rushed) and the age of majority (balughat). He points out that if a minor girl has attained the age of dis cretion though she may not have become major, a marriage by her would not be ab initio void but would be valid subject to approval by her gurdian. In support of this proposition learned counsel referred to Ameer Ali's Muhammadan Law, Volume II, pages 274 and 275, and the judgments in Joygun Nessa Bibi v. Muhammad Ali 1938 A I R (Cal.) 71 ; and Munshi v. Mst. Alam Bibi (1931) 133 I C 126 ; the latter being a Division Bench judgment of this Court. These authorities undoubtedly lend support to the contention raised by the learned counsel. The argument, however, is not strictly pertinent in the present case in the face of the finding arrived at by the learned District Judge that Mst. Akhtar Begum did not give herself in marriage. I see no reason to disturb that finding in second appeal. The position them would be that the nikah was performed by her stepbrother acting as her guardian, and this was her own case. Apparent ly no other nearer guardian was in existence. In these circumstances it is obvious that the marriage contracted by a guardian during her minority could be repudiated by her on attaining puberty. It was urged on behalf of the husband, however, that the right of repudiation of the marriage had been lost because the marriage had been consummated. The learned District Judge has recorded a finding to the effect that consummation had taken place. The parties had lived as husband and wife at land and at Quetta. But clearly this consummation took place before the girl had attained puberty. The question then is whether such cohabitation is sufficient to destroy the option of puberty. In this connection the lower appellate Court has relied on the judgment of a Single judge of this Court in Mst. Ghulam Sakina v. Falak Sher P L D 1949 Lah.

75. In that case a girl aged about one, was married to a boy aged about 5, the marriage having been arranged by their guardians. In the course of his judgment, Sharif, J. observed as follows, in that case :‑ "'Puberty' under Muhammadan Law is presumed, in the absence of evidence on completion of the age of 15 years. It would, therefore, necessarily follow that the minor should exercise the option after the age of 15 years unless there was evidence to the contrary that the puberty had been attained earlier and the burden of proving this shall lie upon the person so pleading. Anything done by the minor during the minority would not destroy the right which could accrue only after puberty. The cohabitation of a minor girl would not thus put an end to the 'option' to repudiate the marriage after puberty. The assent should come after puberty and not before for the simple reason that the minor is incom petent to contract ; nor should the consummation have taken place without her consent." The learned judge has referred in that connection to Baillie's Digest 1'59 and to the judgment in Abdul Rahman v. Aminabai I L R (1935) 59 Bom.

426. This authority lays down that the right of repudiating a marriage effected during the girl's minority is not lost by the mere fact of consummation without her consent. There is, however, nothing in these authorities expressly to the effect that consummation before the attain ment of the age of puberty will not destroy the right of option though that inference appears to be implied. Learned counsel for the husband, Mr. Muhammad Shafi, has strenuously con tended before me that the view taken in this authority was not sound. He has, however, been unable to cite any clear authority covering this point. On the contrary, I find in Hamilton's Translation of the Hedaya as revised by Gray, at pages 37 and 38 the following dictum :‑ "The right of option in a virgin, after maturity, is done away by her silence ; but the right of option of a man is not done away by the same circumstance nor until he expresses his approbation by word or by deed, such as pre senting her dower, cohabiting with her, and so forth ; and in like manner the right of option of the female after maturity (in a case where the husband has enjoyed her before she attained to that state), is not annulled until she .expresses her consent or disapprobation in terms (as if she were to say 'I approve' or, 'I disapprove'), or until her consent be virtually shown by her conduct in admitting the husband to carnal connection, and so forth." This quotation, in my opinion, is in accord with the view taken by Sharif, J. in the above authority. I hold, therefore, that the consummation that took place in the present case, having occurred before the girl attained puberty, did not destroy her right of option of puberty. She did nothing on, attaining the age of majority to express approval, of the marriage. Consequently, the exercise by her of her right of option must be upheld. The result is that the appeals fail and are hereby dismissed with costs. K. M. A. Appeal dismissed.