P (PLP)

"Where minors are contracted in marriage by a father or grandfather they have no option on arriving the puberty, but when contracted by any other than a father or grandfather they have an option on arriving at puberty, and may either abide by the marriage or cancel it. This is the doctrine of Aboo Huneefa and Mohummud on the subject but it is a condition' that there shall be the decree of a Judge in the matter, contrary to the case of an opition after emancipation. And if a boy or girl should choose to be separated, after arriving at puberty, but the judge has not yet made the separation when one of them dies, they have reciprocal rights of inheritance, and .up to the actual separation between them by the judge, the, husband may lawfully have intercourse with his wife". Bailie does not give the reason why confirmation by the Court is considered necessary in such cases. His opinion is probably based on Uedaya of Sh. Burhan‑ud‑Din Ali of Marghinan (died A. H. 591 =1213 A. C.). In Hamilton's Hedaya (Grady's Edition) I find the following at page 37 :‑ "It is also to be remarked that in dissolving the marriage, decree of the Qazi is a necessary condition in all cases of option exerted after maturity, contrary to the rule in the exertion of a similar right of option after manumission, that is to say, if a master marry his female slave to any person, and afterwards emancipate her, she will have a right of option upon her emancipation ; if she please, the marriage continues, but if not essential to such dissolution; but it is otherwise in the case she disapprove it is dissolved; and the decree of the Qazi is of option after maturity; because that option is reserved with a view to guard against injury to the other rights of the parties, which might occur in a variety of instances and which if admitted (as, if the marriage were absolute, they must be), would be calculated to introduce many evils into the married state since the guardian might, for instance, in executing the contract, agree to an inadequate dower of to an unequal match; and as the dissolution of the marriage thus tends to affect other rights, a decree of the Qazi is essential thereto: but, in the case of female slave, the right of option after emancipation is intended as a security against an evident injury to herself; as the husband's power over her is extended and his authority, as well as her obligations in many respects enlarged, by her mancipation from slavery whence it is that this right of option is restricted to female slaves only and does not extend to males to whom the above principle would not apply and such being the case, the dissolution of her marriage is to be regarded merely as the removal of a hardship from herself, in which the decree of the Qazi is no way necessary, since all persons are entitled to relieve themselves from evil". This seems to be a free rendering of the original text in the Persian version of the Hedaya. I have had an extract taken from ,the Arabic text of the Hedaya which is as follows (for this extract I am indebted to M4fti S. Abdul' Qayyum who besides being a lawyer is an Arabic Scholar) :‑ (Here follows the Arabic text from Hedaya p. 297 Vol. 2.) Which may be translated as below :‑ ("In this option of puberty) the Qazi's order is a condition, as against the option (of emancipation) by the female slave for the cancellation by it (option of puberty) is for removal of a latent injury and that is the possibility of a failing (on the part of the guardian) and for that reason it includes that cases of the male and the female. In this there is made an accusation against another, (i. e., the guardian) and therefore it is dependant on the Qazi's order; whereas the option of emancipation is for the removal of a patent injury and that is the extension of the right of ownership over her. For this reason it (the option of emancipation) is confined to the female the removal (of this injury) is the consideration and such removal does not depend on the Qazi's order". It is difficult to appreciate the reasons for this distinction drawn by the author of the Hedaya between the right of option after manumission and the right of option of puberty. As I have observed above, the option of puberty is the absolute right of an individual who is not bound to make an accusation against the guardian, before asserting that right. In essence there seems to be no distinction between the two kinds of cases as in either case, the person concerned is entitled to relieve himself or herself from evil. It may be noted however that in contrast with Hamilton's trans lation the words of the original text talk of a "condition" and not of a "necessary or essential condition". The real reason for the insistence on the Qazi's order is not brought out even in the Durrul Mukhtar which was written in 1070 Hijri by Sheikh Muhammad Ala‑ud‑Din bin Sheikh Ali, Haskal, Mufti of Damascus. This purports to be a commentary on the earlier Tanwirul‑Absar of Sheikh Abdullah Tumurtashi. At page 40 of the translation of this book Brij Mohan Dayal, (1913 Edition) the instance given is of a separation at the instance of the wife attaining puberty while the husband was yet a minor. It is stated that separation between them will be effected in the presence of the father or the executor of the husband, but the dissolution must be decreed by the Qazi, and they would inherit each other if either of them dies before the judge's decree. From the original Arabic text it appears that the Qazi's order being regarded as a "condition" and the parties being entitled to inherit if either of them dies before the judge's decree, are really the words of the original commentary called Tanwirul‑Absar which the author of the Durrul Mukhtar has incorporated in his own work. The relevant Arabic words are ("Bashart‑al‑Qaza") which may be translated as "with the condition of the Qazi's order". Here again it is not explained why the Qazi's order is required. The author merely fortifies himself by quoting a poem from the Nahrul Faik on the subject which mentions the necessity of a Qazi's decree in the case of a number of separations, to the exclusion of others. In the Fatawai Alamgiri, Volume II, Kitabun Nikah, Chapter IV on Auliya (guardians) at page 160 of the Urdu translation by the late Sayyed Ameer Ali, (1932 edition), the opinion expressed in Hedaya is followed and nothing new is said. The late Sayyed Ameer Ali in his Muhammadan Law, Volume II, (fifth edition) at page 372 has set out an extract from the Fatwai Alamgiri and has pointed out that the original text of the Hedaya on which the opinion expressed in the Fatwai Alamgiri is based, does not state that a decree of the Qazi is "essential" but merely speaks of the decree of the judge as a "condition" (Shart), I have already quoted from the Arabic Text of the Hedaya. As I have observed above, the same is the case with the Tanwirul Absar on which the Durrul Mukhtar is based. Mr. Ameer Ali goes on to quote from the Radd‑ul‑Mukhtar otherwise known as Fatawai Shami which is again a commentary on .the Durrul Mukhtar. Unfortunately the original book was not available to me. It would be profitable, therefore, to set out the extract quoted by Mr. Ameer Ali in his book in extenso which reads as follows :‑ "When two minors are contracted in marriage and the girl attains majority before the boy. if she desires to rescind the contract and to obtain the judge's decree confirming the cancellation, the proceeding must be in the presence of the boy's father or his executor. If neither of them be forthcoming, the judge shall appoint a wasi (to represent the minor). He will make the wasi attend and will demand from him the arguments (Proofs) on behalf of the minor against the wife's claim for separation, on the ground of her acquiescence in the marriage after attaining puberty or delay in demanding separation. If not (s. e , if these defenses are not available) the contesting party (the guardian ad )item) will put the wife on her oath, and if she take the oath, the Qazi shall separate them. (In other words shall make a decree confirming the cancellation) in the presence of the Khasam (the contesting party) without waiting for the boy to attain puberty ................................................................ As the option is, in its essence, a weak right, its effective ness depends on the decree of the judge like the revocation of a gift. And this indicates (implies) that if the husband be absent, separation shall not take place between them until he presents himself (or is represented) because the decree must necessarily go against the absent party (al‑ghaib). The condition relative to the decree of the judge is required for the purpose of confirming the cancellation not for establishing the power (ikhtiar) (to cancel the marriage.)" The last sentence gives real reason for the Qazi being brought in. It is made clear that the Qazi's order is not required for establing the right which inheres iv the individual but merely to " confirm " the cancellation. Mr. Ameer Ali has explained this by saying that there can be no question regarding the right itself and that no decree is required to affirm it. He further points out that the Qazi cannot make any declaration unless the party who claims the right has himself or herself exercised and asserted the right. The order of the judge, according to him is necessary in order to cause an effective cancellation or to impress on the act the judicial imprimatur. Until that has been obtained, the status remains in an inchoat condition ; the parties may lawfully co‑habit which would amount to a recantation of the option ", or if either of them were to die, a right of inheritance would be established in the survivor. Mr. Ameer Ali adds as follows :‑ " But it does not follow from this that if a woman who has exercised the option were to contract another marriage, believing that she was entitled to do so, she would make herself liable to punishment under the criminal law. The validity of the rescission does not depend on the imprimatur of the Qazi, as the judicial declaration is needed to provide judicial evidence in order to pre vent disputes, and judicial confirmation and authentication of the exercise of the right. Ex Hypothesi, when a girl who was given by her mother in marriage during infancy on attaining puberty rescinded the contract; and married another person, she could not be convicted of bigamy although the judge had not made his decree. Mr. Ameer Ali has further observed that conviction. in such cases would he wrong, for supposing even consummation bad taken place after the first marriage, the subsequent marriage being shubhat‑ul‑akd neither the women nor the men marrying them would under the Muhammadan Law, be liable to any punishment though the Qazi, might give back the woman to the first husband. But when there has been no consummation, and the girl on attaining puberty and during the absence or imprison ment of the man to whom she was contracted in infancy, marries another person, the second marriage would be valid. The opinion of Mr. Ameer Ali is supported by Chapter II of Hamilton's Hedaya (Grady's edition) at page

182. It is explained therein that an erroneous carnal conjunction would not fall within the definition of the terms " Zina " fornication which incurs Hadd or the prescribed punishment. A similar view is expressed at page 33 of the Kitab‑un‑Nikah by Maulvi Sayyed Munawar‑ud- Din. The view adopted by Mr. Ameer Ali is strengthened by an opinion expressed in the Fatwai Alamgiri at page 161 of the Urdu translation referred to above. The quotation is as follows :‑ "Ibn Sama ne Imam Muhammad se riwayat ki hat keh agar Saghirak ne baligh hone par, apne nafs ko ikhtiar kiya our us par gawah kar liye magar do mahinah tak Qazi ke Hazur men nab gal to woh apne Khyar pir rahe gi to waqte ke usne shauhar ko atone sath jamaa 'nab karne diya ho yeh zakhirah men hat." This may be translated as follows :‑ " If the minor on attaining puberty has exercised her option and has obtained witnesses to that effect but she did not approach the Qazi for two months, she would retain her option until she had allowed her husband to co‑habit with her. This is in the Zakhira. On principle, if the right is retained intact for a period of two months or more, without going to the Qazi, it is not understandable why the Qazi's order should be essential to lend validity to the exercise of that right. On a view of the original authorities, therefore, and having regard to the opinion of the well known savant, the late Sayyed Ameer Ali, I have reached the conclusion that a Court's order is not essential for conferring validity on the exercise of the option of puberty. The Qazi must be replaced in the modern context by the Civil Court. The'Court's order would seem to be only necessary to invest it with the judicial imprimatur in order to avoid any possi ble dispute, as Mr. Ameer Ali has explained. Coming now to the case law on the subject I find that in Badal Aurat v. Queen Empress (I. L. R. 19 Cal. 79) it was held by a Division Bench of the Calcutta High Court that a minor girl given in marriage by her mother, had the option on attaining puberty, either to ratify or cancel the unauthorized marriage, though under Suni Law generally, ratification is presumed if the girl remains silent after attaining puberty and allows the marriage to be consummated. It was found on the facts of that case that the girl did not ratify the marriage performed wring her minority and further the opinion was expressed that a judicial order was not necessary to effect cancellation of the marriage. In that case, before the girl attained puberty, her husband was sentenced to a term of imprisonment for theft. While he was in jail the girl attained puberty and contracted marriage with another man. The previous marriage had never been consummated. The first husband on release from jail, prosecuted the girl and he: second husband for bigamy and abetment of bigamy. The facts of the present case fall within the purview of the principle laid down in that ruling the judgment in which was delivered by the late Sayyed Amir Ali, J. It is very weighty pronouncement. Mr. Ameer Ai has observed that even in a claim for restitution' of conjugal right by the husband, the defendant may plead the exercise of the right of option " and if it is established, the Qazi may grant the declaration in that proceeding, according to the dicta of Muhammadan Lawyers. In his view this principle would be equally applicable to a criminal proceeding where a conviction can take place only if it is found conclusively that the former marriage was still binding and effective. This authority was followed in. Vulanda v. Crown (

33. P. W. R. of 1910), Ghulam Muhammad v. Emperor (A. I. R. 1933 Lah. 88) and 141st. Haji v. Palio (38 Cr. L. J. 88 D. B.). A Similar view was taken in Mufizuddin Mondal v. Rahima Bibi (149 I. C. 1028) and the authority relied upon is a quotation from Ameer Ali's Muhammadan Law, Volume

2. In Shaft Ullah v. Emperor (32 A. L. J. 387 1934) even the action of the minor girl in marrying another man on attaining puberty was held sufficient by Young, J. to indicate her exercise of the option of puberty and the conviction for bigamy was set aside. This authority however, contains no discussion on' the point whether the order of the Qazi is necessary or not, to impart validity to the exercise of the option. Learned counsel for the complainant drew my attention to Abdul Ghani v. Sardar Begum, (A. I. R. 1945 Lah. 183). In that case it was held by Sir Abdur Rahman, J., that it is the Court which has to perform the functions of a Qazi and it is the pronouncement of the Court . Which dissolves the marriage and that fuction cannot be delegated by,the Court to anyone else either by arbitration or by accepting the statement of a witness even with the consent of parties, at least on an immaterial point in the case. The point at issue in the present case did not arise there at all and the ruling has no bearing on the case under consideration. Learned counsel for the complainant also relied on certain observations made by the late Mr. Wilson in his Anglo Muhammadan Law (1912 edition) in which he had criticised the view taken by Mr. Sayyed Ameer Ali. But I find that this opinion has not been adhered to in the later editions of that' Look as edited by Mr. Yusaf Ali. The better view, therefore, seems to be that the Court's order is not essential for imparting validity to the exercise of the option of puberty and that in any case, a declaration can be given by the Court itself even in the course of Criminal proceedings initiated under section 494, Indian Penal Court to the effect that, the first marriage stands dissolved by the option of puberty have been exercised. In the present case on the facts I find that the first marriage of the minor girl had never been consummated and that she repudiated that marriage on attaining puberty within the period allowed by law, to the knowledge of her husband. I would hold, therefore, that the option of puberty was validly exercised and the first marriage could not be deemed to subsist at the time of her second marriage for the purpose of section 494 Indian Penal Code. Section 494 runs as follows :‑ "Whoever having a husband or wife living marries in any case in which such marriage is void reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and stall also be liable to Fine". One of the exceptions to the section provides that it does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction. I find that the, case would fall within' this exception because the first marriage had been duly cancelled and I would so declare in favour of the wife. Moreover, in terms, the section does not appear to cover the facts of the case. Under Muslim Law, which governs the question of validity of the marriages of the parties in this case the second marriage could not be said to be "void" by reason of its taking place during the life of the previous husband. As has been pointed out above, the second marriage would not be wholly void but would be of the nature of shubhat‑ul-akd under Muslim Law. Even learned counsel for the complainant conceded that Mst. Amiran could at this juncture, approach a civil Court for obtaining a decree for dissolution of marriage with her former husband and pending the decision of that Court, the criminal case against her should be held over. Surely, if that is the case it cannot be said that she had incurred any criminal liability under section 324 Indian Penal Code It is true that according to the dicta of Muslim juris consults till the Qazi has given his imprimatur to the exercise of the option of puberty the husband can even co-habit with his wife. But it does trot ‑mean that he can compel her to sexual intercourse against her will. It only implies that if she permits such intercourse that would amount to a recantation of the option of puberty. After giving my best consideration to the facts of the case and the law bearing on the subject, I am unable to agree with the recommendation of the of the learned Sessions judge in this case, I, therefore, decline to interfere in revision. The decision will be communicated to the parties or their counsel. K. M. A. Revision dismissed.