P (PLP)

2. Whether the defendant is married to the plaintiff ?

3. Whether the plaintiff has a right to exercise option of puberty ?

4. Whether the marriage has been consummated ?

5. Is the plaintiff entitled to a decree for dissolution of marriage ?

6. Relief. The trial Court decided issues Nos. 1 and 5 against the plaintiff', issue No. 3 for .her and issues Nos. 2 and 4 for the defendant and dismissed the suit. Mst. Sat Bbarai instituted an appeal against the decree of the trial Court and before the District judge, who heard the appeal, abjection was taken on behalf of Nor Elahi that as Mst. Sat Bharai was not a major, she could neither bring a suit nor institute an appeal without a next friend and, therefore, the appeal was incompetent. The learned District judge agreed with the trial Court in holding that the suit of the plaintiff not having been instituted by a next friend as required by Order 32, rule I of the Code of Civil Procedure was not properly instituted and holding that the appeal before him which was instituted without a next friend was incompetent, dismissed the appeal without deciding the other matters in controversy between the parties. Against the decision of the learned District Judge Mst. Sat Bharai presented a second appeal to this Court which came up for hearing before me sitting singly, but, the question of law involved in the appeal being of some complexity and importance, I referred the case to a larger Bench and the case has come up before us for decision. The question that falls for decision is whether or not a Muslim woman who had attained puberty but bad not attained the age of 18 can bring a suit for dissolution of marriage on the ground of exercise of her option of puberty. The institution of suits by minors is governed by Order 32 rule 1 which reads as follows :‑ " Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor," The word " minor " has not been defined in the Code of Civil Procedure nor in General Clauses Act and it is clear that the intention of the Legislature was that the word " minor " was to have the meaning which had been assigned to it by the Majority Act (Act IX of 1875). Section 3 of Act IX of 1875 which has been made subject to the section preceding it states that no person is to be deemed .to have attained majority before the completion of 18 years and in some cases mentioned therein not before the completion of 21 years. Section 2 of the Act, however, contains some exceptions to the general rule contained in section 3 and that part of the section which is relevant for the purpose of this case reads as follows :‑ (2) " Nothing herein contained shall affect‑-- (a) the capacity of any person to act in the following matters (namely),‑ marriage, dower, divorce and adoption ; The trial Court held that section 2 of the Majority Act had no application if the question that arose was whether or riot the suit by a person who was under 18 years of age was competent if brought without a next friend as this was a matter of procedure governed by the Code of Civil Procedure. The learned District Judge relying on a decision of the Madras High Court in Pnyikutb Ithavi Umah v. Kairhiapokil Mamod (I, L. R. 3 Mad. 248) in which it was held by a Division Bench that section 2 of the Majority Act referred only to capacity to contract and not to the rapacity to sue, agreed with the trial Court in the view that the suit could not be brought without a next friend. The respondent is neither present nor represented but all possible attempts have been made to consider the question from all aspects. There is a decision of the Oudh Chief Court is Usman Ali Khan v. Mst. Khatoon Banu (I. L. R. 17 Luck. 572) which has taken the same view as was taken in I. L. R. 3 Mad. 248, but after carefully considering them I cannot bring myself to agree with the interpretation placed do section 2 of the Majority Act in those two cases. It appears improbable that while the Legislature considered a person competent to enter into a contract about a matter even before attaining the age of 18 years it considered that that person was incompetent to lodge a suit about that matter if necessity for such a suit arose. Under the law a Muhammadan girl who has attained puberty (which is to be presumed, in the absence of evidence to the contrary‑, to have been attained on her completing the age of 15) can exercise her option of puberty in certain circumstances and to hold that though she can exercise her option of puberty on attaining the age of 15 she should wait for at least three years before she can herself bring a suit, or find a person willing to act as her next friend if she intends to bring suit before she attains the age which could make her a major under section 3 of the Majority Act, is an interpretation of section 2 of Act IX of 1875 which would work hardship in many cases and could not have been intended by the Legislature. It is significant that in section 2 of the Majority Act the Legislature has used the expres sion " to act in the following matters " and not " to enter into a contract in the following matters " and it appears to me that when the Legislature used this expression they intended the section to apply to all matters including the institution of a suit. The view I take of the effect of section 2 of the Majority Act on Order 32 rule 1 of the Civil Procedure Code is not without support. It was held by a Division Bench of the Bombay High Court so long ago as 1931 in Ahmad Soleman v. Bai Fatma (I. L. R. 55 Bom. 160) that a Muhammadan wife 16 years of age is entitled to sue for divorce without a next friend by virtue of section 2 of the Majority Act. In the body of the judgment it was remarked as follows :‑‑ " On the third point, the Muhammadan Law entitles a woman of 16 and over to sue for a divorce. Under section 2 (a) of the Indian Majority Act nothing in that Act shall affect the capacity of any person to act in marriage, dower, divorce and adoption. The wife suing for a divorce acts in the matter of divorce. Therefore, she is entitled to sue without a guardian *"* * * * *" The same view was taken in Naksetan Bibi v. Habib‑ur -Rahman Mindal (A. I. R. 1948 Cal. 66) which was a case of a minor Muhammadan girl suing after attaining puberty but before the age of 18 for the dissolution of her marriage on the ground of exercise of her option of puberty. The decisions in I. L. R. 55 Bom. 160 and A. I. R. 1948 Cal. 66 dealt directly with the question involved in the present case but there are some other decisions from which the same inference is deducible. In I. L. R. 22 Born 430, a case under the Paxsis Marriages and Divorce .Act (Act XV of 1865), it was remarked that the expression " capacity to ace' occurring in section 2 of Act IX of 1875 includes a right to sue and in A.I. R. 1928 Cal. 303, the view in I. L. R, 22 Both. 430 with regard to the meaning of clause (a) of section 2 of the Majority Act was referred to with approval. After a careful consideration of the relevant provisions .of law and the decision of High Courts with regard to them, I have arrived at the conclusion that section 2 (a) of the Majority Act (Act IX of 1875) confers not only the power to enter into contracts) with regard to the matters mentioned thereof, but also the right to bring suits with respect to those matters. It might perhaps appear anomalous that a person who is not a major according to section 3 of the Majority Act (Act IX of 1875) may bring a suit without a next friend with regard to a matter dealt with by section 2 of the Act, though he would be incompetent to institute, without a next friend, a suit for recovery of even a trivial sum of money, but the anomaly is by no means greater than the anomaly that a person incapable of entering into a contract about even a trivial sum of money could enter into a binding contract with respect to matters as important and of ‑far‑reaching consequences as those mentioned in clause (a) of section 2 of Act 1X of 1875. At first sight it would appear that clause (a) of‑ section 2 of Act IX of 1.875 which applies to divorce was not applicable to the present case which remarks .to dissolution of marriage on the ground of exercise of option of puberty by a Muslim female, but that, in my view, it is not possible to hold. I am of the opinion that the word " divorce " in the clause under consideration means the termination of marital ties between two living persons brought about by any means recognised by law. No doubt the word " talaq " of the Muslim Law, which almost invariably connotes the termination of marital ties by the unilateral act of the husband has almost universally been translated as " divorce " but that restricted meaning cannot be given to the word " divorce " occur ring in section 2 of Act IX of 1875. The Majority Act was intend ed to apply to all persons residing in the territories to which the Act was applicable and no expression used in the Act could there fore have been intended to have a meaning attached to that expression by only one community. In view of what I have said I have arrived at the conclusion that the plaintiff appellant was competent to lodge the suit and appeals against the decree therein without a next friend and the decision of the Courts be to the contrary was incorrect. I would, therefore, accept the appeal and as the learned District judge did not give a decision on the other matters arising in the appeal before him, would remand the case to him for decision of the question left undecided by him. As the respondent was not represented I would leave the parties to bear their own costs of this appeal. M. KHURSHID ZAMAN J.‑‑‑I agree. K. M. A. Appeal accepted.