2000 PLP 1886 (MLD)

(3) Relief.

3. The Judge Family Court after recording and appreciating the evidence of the parties, pro and contra, dismissed the suit of the plaintiff/respondent No. 1.

4. Feeling aggrieved the plaintiff/respondent No. l preferred an appeal and the Appellate Court vide the impugned judgment and decree accepted the appeal and decreed the suit of the plaintiff and set aside the judgment and decree of the Judge Family Court.

5. Learned counsel for the petitioner contended that the judgment and decree, passed by the Appellate Court is based on misreading and non -reading of the evidence. He further contended that at the time of filing of suit the respondent No. l was of the age of 17/18 years and she has rejected her Nikah about 3/4 years prior to the filing of the suit when she had not attained the age of puberty and this aspect of the case was not appreciated by the Appellate Court. He further contended that according to section 2 of the Dissolution of Muslim Marriages Act the age of dissolution of marriage on the basis of right of option of puberty is 16 to 18 years and when she had dissolved the marriage she was not major.

6. On the other hand learned counsel for respondent No. l vehemently opposed the arguments of learned counsel for the petitioner and supported the judgment passed by respondent No.2.

7. I have considered the arguments of learned counsel for the parties and perused the record.

8. The question boils down for determination in this case is whether the plaintiff/respondent No. l was married with the petitioner in her childhood and she had repudiated her marriage before attaining the age, of eighteen years.

9. The plaintiff/respondent No. l was married with the petitioner according to her statement in the age of 10/11 years and till the institution of the suit the marriage had not been consummated because the Rukhsati of the plaintiff had not taken place and she never resided in the house of the petitioner as his wedded wife.

10. The respondent on attaining the age of puberty had repudiated the marriage in exercise of her right of Khair‑ul‑Baloogh, however, the petitioner insisted on claiming her to be his wife which obliged her to file the instant suit for a declaration as to her unmarried status.

11. The marriage is a contract between two opposite sexes for the procreation of children. Nevertheless marriage under Muslim Law has a religious significance because it is known as Sunnat‑ur‑Rasul meaning thereby an example set out by the Holy Prophet (peace be upon him) and p only Muslim should follow the same.

12. Under Muslim Law also marriage is a civil contract like other civil contracts which require free consent of the parties for its performance given either by them personally or by their authorised agents in that behalf. In certain classes of contracts entered into by guardians or agents do not take effect unless ratified by the principal or other someone authority.

13. In Muslim Law when a minor girl is entered into contract of marriage by her father or guardian during her minority she has the option to repudiate this marriage called Khiar‑ul‑Baloogh on attaining puberty before the age of eighteen years. Provided that the marriage has not been consummated.

14. A wife is entitled to the dissolution of her marriage on the option of puberty if she proves the following facts:‑‑ (i) The marriage took place before she attains the age of sixteen years. (ii) The marriage has not been consummated. (iii) She has repudiated the marriage before attaining the age of 18 years. The decree of the Court is not necessary to invalidate the marriage which has been dissolved by the wife.

15. Section 2(vii) of the Dissolution of Muslim Marriages Act, 1939 enshrines that she having been given in marriage by her father, other guardian before she attains the age of fifteen years, repudiated the marriage before attaining the age of 18 years.

16. A plain reading of the above provision makes it manifestly clear that the repudiation of the marriage by a woman who was married during her infancy is subject only to two conditions. First she repudiates the marriage before attaining the age of 18 years. Secondly the marriage has not been consummated. The decree of the Court is not necessary to invalidate the marriage which has been dissolved by the wife. Reference can be made to cases of Mst. Farangeza v. The State (1995 MLD 1439), Mst. Janat v. Additional District Judge (PLD 1981 Lahore 68), Mst. Aslam Khatoon v. Muhammad Azim Khan and others (1991 CLC Note 226 at p.177 Mulazim Hussain v. Mst. Amina Bibi and another (1994 CLC 1046) and Muhammad Sharif v. Judge Family Court (1998 MLD 1873).

17. It is not disputed that the marriage of parties has not been consummated. The plaintiff/respondent No. l had instituted the suit in the age of 18 years. The condition to repudiate the marriage is before attaining the age of 18 years. At the time of institution of the suit the plaintiff had not attained the age of 18 years. From the scanning of evidence it is established that at the time of filing of suit the plaintiff was of 17/18 years age. This fact has not been rebutted by the petitioner in the trial forum. The lower Appellate Court after taking into consideration the evidence of the parties came to the conclusion that the plaintiff has validly repudiated her marriage. The learned counsel for the petitioner has not been able to point out any illegality misreading or non‑reading of evidence which could call for interference in the impugned judgment and decree. For the foregoing reasons, therefore, the Appellate Court has rightly declared respondent No.1's marriage with the petitioner as having been dissolved in exercise of right of option of puberty. Resultantly, this writ petition, is dismissed with no order as to costs. H.B.T./M‑230/L Petition dismissed.