P L D 1957 (W (PLP)

A. R. CHANGEZ, J.‑

This second appeal has arisen out of a suit brought by Mst. Kammon Mai on the 30th of August 1954, for a declaration that she was not the lawfully wedded wife of the defendant or in the alternative for the dissolution of her marriage. In her plaint she alleged that in December 1953, she was abducted by the defendant and was confined here and there for a few months and during this period was subjected to sexual intercourse. She also alleged that her thumb‑impressions were obtained on certain documents. She denied that any marriage took place at all, and in the alternative alleged that even if any marriage did take place she had not attained puberty at the time of such a marriage and, after attaining puberty, she, in the exercise of her right of option of puberty, had repudiated the marriage. The defendant pleaded amongst other things that she had attained puberty at the time of the marriage which was performed with her free will and consent and that she had been living with him as his wife after the said marriage. He further alleged that the marriage had been consummated and that she was more than 18 years of age at the time of the institution of the suit and as such had lost the right to repudiate the marriage. In his statement made before the framing of the issues he claimed that the plaintiff was 18 years of age at the time of the marriage. On the pleadings of the parties, certain issues were framed out of which issues Nos. 3 and 4 are the crucial issues in the case. They are as follows (3) Whether the plaintiff is the lawfully wedded wife of the defendant ? (4) If issue No. 3 is proved in favour of the defendant, whether the plaintiff is entitled to repudiate the said marriage by exercise of her option of puberty ? The trial judge gave a finding on issue No. 3 in favour of the defendant, but decided issue No. 4 against him and granted a decree for the dissolution of marriage. On appeal, the learned District judge reversed the finding of the trial judge on issue No. 3 and held that the plaintiff was a minor at the time of her marriage and, although she had consented to the marriage, the contract of marriage was void on account of having been entered into during the minority of the plaintiff. In view of this finding, he thought that issue No. 4 did not arise at all. In the result he modified the decree by granting her a declaration that she was 'never legally married to the defendant. It is against this decision that the present second appeal has been preferred by the defendant. Hafiz Khurshid Hassan, Advocate, who has appeared for the appellant, has assailed the propriety of the lower Courts' decisions on both the issues. He has contended that the marriage, in the circum. stances of the case, was at the most a voidable marriage and not void. fie has further maintained that the uncle of the girl was also present at the time of the marriage and had acted as a vakil and as such the marriage had been performed with his consent, and he being the lawful guardian of the girl for the purposes of marriage, the marriage was valid. He has also argued that the marriage having been consummated even though during the minority of the girl, she had lost her right to repudiate the marriage in view of the proviso the clause (vii) of section 2 of the Dissolution of Muslim Marriages Act VIII of 1939. The questions of law raised in this appeal are of con siderable importance from the point of view of Muslim women in particular, and relate to the exact scope of Muslim Law on the subject. The first question which requires to be determined is whether the contract of marriage entered into by Mst. Kammon Mai before she had attained puberty was void as held by the learned District Judge. According to Muslim Law, the marriage is essentially a civil contract which has for its objects the procreation and the legalisation of children, and its validity depends on proposal on one side and accept ance on the other. The question arises as to who are competent to enter into this contract. In para. No. 251 of Mulla's Principles of Muhammadan Law, 13th Edition, it is laid down as follows :‑ "Capacity, for marriage.‑(1) Every Muhammadan of sound mind, who has attained puberty, may enter into a contract of marriage. (2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians. (3) A marriage of a Muhammadan who is of sound mind and has attained puberty, is void, if it is brought about without his consent." In para. No. 270, it is laid down :‑ "Marriage of minors.‑‑A boy or a girl who has not attained puberty is not competent to enter into a contract of marriage, but he or she may be contracted in marriage by his or her guardian". Mr. Mulla, however, has nowhere dealt with the question whether a minor before attaining puberty can himself enter into a contract of marriage. Syed Amir Ali in the 5th Edition of the Second Volume of his book on Muhammadan Law, while dealing with the question of the capacity to contract a valid marriage. says at page 273 :‑ "As a general rule, it may be remarked, that under the Islamic Law the capacity to contract a valid marriage rests on the same basis and depends on the same conditions as the capacity to enter into any other contract." He then enumerates the following conditions :‑ (1) In the first place, the parties must be able to under stand the nature of their act. For, if either of them is non compos mentis or is incapable of understanding the nature of the contract, it is void, (2) In the second place, they must be adult (in cases where the marriage is not contracted for them by their guardians), and (3) In the third place, they must be acting of their free will and not under compulsion." Then he has quoted the following passage from Fatawai Alamgiri, Volume 1, page 377 :‑ "Among the conditions which are requisite for the validity of a contract of marriage, are understanding, puberty and freedom in the contracting parties, with this difference that whilst the first requisite is essentially necessary for the validity of the marriage, as a marriage cannot be contracted by a majnun (non compos mentis), or a boy without understanding; the other two conditions are required only to give operation to the contract, as the marriage contracted by a (minor) boy (possessed) of under standing is dependent for its operation on the consent of his guardian." He then goes on to say :‑ "Puberty and discretion constitute, accordingly, the essential conditions of the capacity to enter into a valid contract of marriage. A person who is an infant in the eye of the law is disqualified from entering into any other legal transaction, and is consequently incompetent to contract a marriage. Like the English Common Law, however, the Muhammadan Law makes a distinction between a contract made by a minor possessed of discretion or understanding (a sarir) and one made by a child who does not possess understanding (a saghtr), A marriage contracted by a minor who has not arrived at the age of discretion, or who does not possess understanding or who cannot comprehend the consequences of the act, is a mere nullity. The same conditions are necessary in the case of a girl as in the case of a boy ; she, also. in order to contract a valid marriage, must be major and sane." As regards the age of discretion, after referring to the English Law and the Penal Code, he says that‑ "It may be assumed, perhaps not without reason, that the same principle would govern cases under the Muhammadan Law ; that is, when a contract o4 marriage is entered into by a child under the age of seven, it will be regarded as a nullity. It is otherwise, however, in the case of a marriage contracted by a sarir. 'It is valid, says the Fatawai Alamgiri, 'though dependent for its operation on the consent of the guardian." A sarir is a youth who has not attained majority but is possessed of understanding. The Fatawai Alamgiri at page 377 of Volume I, calls such a minor sabi‑ul‑aakil. He then con cludes by saying that "besides puberty and discretion, the capacity to marry requires, that there should be no legal disability or bar to the union of the parties." While dealing with rules relating to guardianship for the purposes of marriage he says at page 297 that‑ "In the absence of all these, the wilayat is to the Sultan and then to the Kazi who is vested with the jurisdiction by his sanad or commission." and then relying on Radd‑ul‑Muhtar, Volume 11, page 515, he says :‑ "When a minor girl, who has no relation that can stand in the situation of a wali contracts herself in marriage, and there is no Kazi from whom sanction may be obtained, the marriage is not void, but will take effect on her attaining majority and ratifying the contract." At page 235 of the same book he says that‑ "Persons not sui juri labour under the same legal disabilities as in other systems of law. They cannot enter into any contract or legal transactions without the consent of their natural guardians. The want of capacity, which results from minority, is founded on the principles of right reasoning and the desire to protect people not competent to exercise sound discretion in the affairs of everyday life from the consequences of their own acts. An infant, accordingly, is incompetent to enter into a contract of marriage without the consent of his or her guardian. A marriage contracted by a minor, who is possessed of understanding (rushd), Is not, however, absolutely invalid, but its validity, like that of airy other act committed, or contract entered into by an infant, is dependent on its ratification by the guardian, or by the person who stands in loco parentis. The principle which can be deduced from the above‑quoted passages, most of which have been copied out by the author from Fatawai Alamgiri and Hedaya, is, that a girl even if she has not attained puberty but is possessed of discretion and understanding can enter into a contract of marriage, but it will be dependent for its operation on the consent of the guardian, if there is one, but in the absence of any guardian it will take effect on her attaining majority and ratifying the contract. In support of his contention that the contract of marriage entered into by a minor before attaining puberty is not void, the learned counsel for the appellant, besides relying on the passages quoted above, has placed reliance on Munshi v Mst. Adam Bibi (A I R 1932 Lah. 280) and Joygun Nessa Bibi v. Muhammad Ali (A I R 1938 Cal. 71). In the first case, a Division Bench of the Lahore High Court composing of Bhide and Currie, JJ., while dealing with a similar question, relied on the passages mentioned iii Amir Ali's Muhammadan Law, Volume II. page 297, which has been quoted above, and held that even if it be found that the plaintiff was in fact not competent to enter i11to a marriage contract owing to her not having attained puberty, the marriage would be at the most invalid and not void, The judgment had been delivered by Bhide, J. with whom Currie, J has concurred. That case was remanded to find out if the plaintiff had ratified the marriage after attaining puberty. In the second case, Mukherjea J. of the Calcutta High Court, dealing with a similar question, referred to the above‑quoted passages from Amir Ali's book and Baillie's Digest and held as follows :‑ "From these passages it seems to be clear that it is not that the minor child under such circumstances, provided she has attained the age of discretion, lacks the legal personality which alone would entitle her to enter into a valid contract; that the contract is really a contract on her part, but she being below the age of puberty, the consent of the guardian or the father is necessary for the purpose of supplying the deficiency in the intellect of the child and for ensuring that the act was one which was conducive to her interest. If this is the legal position, then the act of entering into that contract of marriage must be deemed to be the act on the part of the child, provided she has attained the years of understanding, but the consent of the father would be a condition precedent to make the act valid and binding on her, as otherwise it would be presumed to be one which is not beneficial to her interest. In this particular case the position obviously is this and this is inferable from the facts found by both the Courts below that the whole thing was done with the consent of the father, though the father being afraid of the penalties under the Child Marriage Restraint Act did not appear as the guardian of the daughter at the time of the marriage. I think therefore that it cannot be said under these circumstances that the marriage was a nullity out and out. The legal position would be that the‑marriage was contracted not by the father on behalf of the plaintiff and the father also did not act as guardian of the marriage. She herself entered into that contract but with her father's assent, and in a case like this obviously she car exercise what is called the option of puberty provided no circum stance is present which would disentitle her to the exercise of this right." That case was also remanded to find if the girl had not repudiated the marriage after attaining puberty. With the greatest respect to the learned judges who decided these cases, I venture to say that I have grave doubts that the passages relied upon by them lay down the correct principle of Muslim law on the subject. The passage mainly relied in both the cases deals with the peculiar situation that if a minor girl has no relation who can act as her guardian and there is no Kazi from whom sanction may be obtained, then she may enter into a contract of marriage and such a marriage will not be void but will take effect on be attaining majority and ratifying the contract. The other passages relied on in the Calcutta case, however, lay down that a marriage contracted by a sarir is dependent for its operation on the consent of the guardian. I have examined the relevant contexts of Fatawai Alamgiri and Hedaya with the aid of the available transac tions and I find that no authority has been cited therein in support of the passages quoted above. I have, therefore, not been able to find out how and under what circumstances these passages came to be written in these books, and what is the authority for laying down the principle that a minor, possessed of understanding although he or she may not have attained puberty, can enter into a contract of marriage. No particular age appears to have been fixed under the Muslim Law when discretion or understanding should be presumed, and I do not see how the age fixed under the Penal Code can be assumed as the age of understanding under the Muslim Law. The words "rusted", "understanding", and "discretion", used in the above‑quoted passages, signify something more than merely the capacity to comprehend. In my opinion, these words convey and means the capacity of understanding the implications and the legal effects of the contract of marriage. It does not stand to reason at all how a minor before attaining puberty can really comprehend the legal effects of a contract of marriage. Does the Muslim Law lay down that a minor above the age of seven years is really capable of understanding the implications of such a contract ? The understanding in the contracting parties is of course the essentially sine qua non of the capacity to enter into a valid contract of marriage, but the understanding referred to above appears to me to be the understanding of a mature person capable of fully understanding the legal implications of his acts and not the understanding of a child who knows how, to count one, two and three. In the absence of any injunction in the Holy Quran on the subject or any direction in the sayings of the Holy Prophet, it is difficult to accept the proposition that a minor without having attained puberty can be said to comprehend the legal effects of a contract of marriage and is competent to enter into such a contract. Syed Amir Ali has very clearly laid down at page 235 of his book that under the Muhammadan Law persons not sui juri labour under the same legal disabilities as in other systems of law. They cannot enter into any contract or legal transaction without the consent of their natural guardians. The want of capacity which results from minority is founded on the principles of right reasoning and the desire to protect people not competent to exercise sound discretion in the affairs of everyday life from the consequences of their own acts. A similar question came up for decision before Rahman, J. (now the Chief Justice of the High Court of West Pakistan) in Behram Khan v. Mst. Akhtar Begum (P L D 1952.Lah.548) where the two authorities cited above were also referred to, but unfortunately no decision was given on the point involved as the finding of the learned District judge was accepted that Akhtar Begum had not given her consent to her marriage with Behram Khan and as such it was not considered necessary to decide the question. I have given my anxious consideration to this aspect of the case, and in .view of my interpretation of the word "understanding" used in the above-quoted passages, I am inclined to hold that the marriage having been entered into by Mst. Kammon Mai while she had not attained puberty' was no marriage at all in the eye of the law and was, there fore, void. It has been held by the Courts below that at the time of the alleged marriage she was about fourteen years of age and there was no evidence to the contrary to show that she had attained puberty earlier. Puberty is of course presumed on the completion of the 15th year unless there is evidence to the contrary. The contention that her uncle was also present and had acted as a vakil does not, in my opinion, advance the case of the defendant, inasmuch as it is not known if he could have acted as a lawful guardian for the purposes of this marriage. The right to contract a minor in marriage as given in para. 271 of Mulla's Principles of Muhammadan Law belongs successively to the (1) father, (2) paternal grandfather how high so ever, and (3) brother and other male relations on the father's side in the order of inheritance enumerated in the Table of Residuaries. It will thus be seen that after the father and grandfather, the right to act as a lawful guardian for the purposes of marriage of a minor first belongs to the descendants of the father and only after that category is exhausted that such a right belongs to the descendants of the true grandfather. I have gone through the evidence very carefully and I do not find any evidence to show that there was no other person who was entitled under the law to act as a lawful guardian in preference to the uncle. In the absence of such evidence, it cannot be held that the uncle had the right to give Mst. Kammon Mai in marriage to the defendant. Besides, the uncle had acted only as a vakil in respect of the consent of Mst. Kammon Mai to her marriage with the defendant. He had not acted as a lawful guardian and it appears that he was not even conscious of such a right. It cannot be contended on the evidence on the record that the uncle bad expressed consent at the time of the marriage on behalf of the bride as her legal guardian. In fact, the marriage was not really contracted by the uncle on behalf of Mst. Kammon Mai. This argument of the learned counsel is, therefore, without any substance in it. In the view which I have taken about the marriage between Mst. Kammon Mai and the defendant, it is not necessary to enter into any discussion as regards issue No. 4, but in view of the importance of the points involved I would like to briefly deal with them. Assuming that the passages quoted above lay down the correct principle of Muslim Law on the subject and that the marriage was, in the circumstances of the case, not void but voidable, then the question which requires to be determined is, whether Mst. Kammon Mai was entitled to repudiate the marriage by exercising her option of puberty. In case it is further assumed that the uncle was the lawful guardian and he had given her in marriage to the defendant, Mst. Kammon Mai could obtain a decree for the dissolution of her marriage by virtue of section 2 of the Dissolution of Muslim Marriages Act VIII of 1939, provided she was able to satisfy the Court that tier case was covered by clause (vii) of section 2 of the Act. It being a concurrent finding of fact that she was about fourteen years of age at the time of her marriage, the learned counsel for the appellant has very rightly not challenged that finding, but he has contended that as the marriage had been consummated, therefore, in view of the proviso to clause (7), the plaintiff was not entitled to get a decree for the dissolution of her marriage. Clause (vii) of section 2 runs as follows :- "That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years : , Provided that the marriage has not been consummated;" In the present case, all what has been proved is that after the alleged marriage she had been subjected to sexual intercourse by the defendant before she had attained puberty. The nikah was solemnised on the 12th of December, 1953, vide Exh. D. 1, and she had lived with the defendant for a few months. The present suit was instituted on the 30th of August. 1954. Thus, she was below fifteen years of age even at the time of the institution of the suit. Except for the solitary statement of the defendant that she had attained puberty at the time of her marriage there is no other evidence in support of his contention. The trial Court, after dealing with the evidence of the parties at length, came to the conclusion that the marriage had been consummated during the period when she had not attained puberty. After going through the evidence on the record, I see no reason to differ from the finding of the trial Court on this point. The evidence of the girl coupled with the evidence of her mother is con clusive on the point. Learned counsel for the appellant has, however, argued that assuming that the marriage had been consummated while Mst. Kammon Mai had not attained puberty, yet the proviso to clause (vii) of section 2 of the Dissolution of Marriages Act came into full operation and destroyed the right of Mst. Kammon Mai to repudiate the marriage. He has stressed the point that the proviso does not lay down any such condition that the marriage should be consummated after the girl has attained puberty. It simply says that the right to repudiate the marriage can be exercised before attaining the age of eighteen years provided the marriage has not been consummated. At first sight: the argument appears to be attractive, but a closer scrutiny of the relevant pro vision reveals that the ‑ object of the proviso is to place a restriction only in cases where the marriage has been con summated after the attainment of age of fifteen years. By enacting clause (vii) the right of repudiation of the marriage has been guaranteed to a girl up to the age of eighteen years, if she is given in marriage by her father or other guardian before she has attained the age of fifteen years provided that the marriage is not consummated. This proviso obviously relates to the period between the fifteenth and eighteenth year. In my opinion, the expression "con summation of the marriage" means consummation with the free will and consent of the parties, but if the girl has ‑not attained the age of fifteen years her consent to the consummation of marriage will not amount to consent in the eye of the law. This matter, however, is put beyond doubt by two decisions of the Lahore High Court. In Mst. Ghulam Sakina v. Falak Sher (P L D 1949 Lah, 75), Sharif J. dealing with the precise question and after referring to the proviso to clause (vii) of section 2 of the Dissolution of Muslim Marriages Act, observed as follows:‑-- "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 co‑habitation 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 incompetent to contract; nor should the consummation have taken place without her consent (Baillie 1, 59 and 59 Bom. 426). This assent might either be express or implied. It might be by words or by conduct like co‑habitation with the husband. It is also essential that a girl should be aware of the marriage before she could be expected to exercise her option (vide para. 78) Muhammadan Law by Faiz B. Tyabji (Third Edition). In the present case, the plaintiff at the time of the alleged consummation, was still below 15 years and, assuming con summation to be a fact, it could not destroy her right to repudiate the marriage after she had attained the age of

15. She had three years within which to proclaim the exercise of that right and the institution of a suit was one mode of proclaiming it. The plaintiff had not, therefore, lost her right to repudiate the marriage given to her by law". In Behram Khan v. Mst. Akhtar Begum, Rahman J. approved the principle laid down by Sharif, J. in Mst. Ghulam Sakina v. Falak Sher and quoted the following dictum from Hamilton's Translation of the Hedaya in support of the view taken by Sharif, J. in the above authority:‑ "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 presenting 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." It was held in that case 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." I am in respectful agreement with the principle laid down in the aforesaid rulings and hold that the consummation that took place before Mst. Kammon Mai had attained puberty did not destroy her right of the option of puberty. In the alternative, if the contract of marriage had been entered into by Mst. Kammon Mai herself, then, strictly speaking, the case is not covered by clause (vii) of section 2 of the Dissolution of Muslim Marriages Act, but is governed by the general provisions of Muslim Law which lay down that such a marriage takes effect on her attaining majority and ratifying the contract as mentioned at page 297 in Amir Ali's Muhammadan Law, Volume Il, referred to above. There is nothing on the record to show that Mst. Kammon Mai on attaining the age of majority had done anything to prove or ratify the contract In fact, she had repudiated the marriage. In case clause (vii) of section 2 of the Dissolu tion of Muslim Marriages Act is applicable to the facts of the case, then also it is clear that she had the right to repudiate the marriage in the exercise of her option of puberty and I have already held above that the consummation having taken place before she had attained puberty it had not destroyed her right to repudiate the marriage. In either case, the marriage came to an end as soon as it was repudiated by Mst. Kammon Mai. In fact, it was repudiated some time before the institution of the suit and from that date the marriage ceased to exist as if it had never taken place. For the foregoing reasons, I see no force in this appeal and dismiss it with costs. Z.A.S./A. H. Appeal dismissed.