P L D 1956 Sind 201 (PLP)

INAMULLAH, J.‑This is a reference by the Registrar (O. S.) that the plaintiff being admittedly of 17 years of age, should have complied with the provisions of O. XXXII, rule 1, Civil P. C. and the suit should have been filed through a next friend. Mr. Nasim, the learned Advocate for the plaintiff, contends that the provision of the Majority Act, 1875, will not apply to the case of a Muslim lady filing a suit for dissolution of her marriage under the Dissolution of Muslim Marriages Act (VIII of 1939). Mr. Nasim relies in support of his contention on section 2 clause (a) of the Majority Act 1875, which reads as under :‑ "Nothing herein contained shall affect the capacity of any person to act in the following matters, namely :‑ Marriage, dower, divorce and adoption." His contention is that section 3 of the Majority Act, 1875, which specifies the age of majority to be 18 years, and under certain other circumstances, 21 years, will not apply to the case of a Muslim suing for divorce. The case of Nakestan Bibi v. Habibar Rehman Mondal (A I R 1948 Cal. 66=50 C W N 689), is directly applicable to the present case. In that case also a Muslim girl, who had attained majority having attained puberty under the Muslim Law, was held competent to sue for dissolution of her marriage without a next friend as required by O. XXXII, rule 1, Civil P. C. It was observed in that case by Akram, J.:‑ " the words 'to act' are wide enough to include in it the institution of a suit by a minor, who under her personal law may have attained majority." Another case which is directly to the point is the case of Ahmad Suleman hohra v. Mst. Bai Fatima, (A I R 1931 Bom. 76.). It was held in that case that a Muslim woman of 16 years of age and over was entitled to sue for divorce without a next friend by virtue of section 2 (a) of Majority Act, 1875. Of the cases against is the case of Puyikuth Ithayi Umah v. Kairhirapokil Mamod and another (I L R 3 Mad. 248). In that case section 2 (a) of the Majority Act, 1875, has been interpreted so as not to apply to the capacity to sue. That is a very short judgment, and no reason whatsoever has been given why the capacity to sue could not be included in the words "to act" in the matters of divorce. The other case is that of Usman Ali Khan v. Mst. Khatoon Banu (I L R 17 Luck.). In that case it was held that the words "to act" in section 2 (a) of the Majority Act, 1875, should be given restricted meaning so as not to include the capacity to sue. I have very carefully gone through that judgment, but I do not find any reason why the words "to act" should not be interpreted so as to include the words "to sue". If the legislature had intended that section 2 (a) of the Majority Act, 1875, should be interpreted so as to mean ‑only the capacity of a person to contract in border to be an exception to section 11 of the Contract Act, the legislature would have so mentioned. The law as regards the capacity to sue of a Muslim who has attained the age of majority under the Muslim law is summarised as under : Cf. Principles of Muhammadan Law by Mulla, p. 230. "Note : that the provisions of Majority Act, 1875, do not apply to matters relating to marriage, dower and divorce. A Muhammadan wife who has attained puberty and is under 18 years of age may file a suit for divorce without the appointment of a next friend." I would, for the reasons given above, hold that the plaintiff is sui juris, and is competent to file the suit without a next friend. A. H. Reference answered