P L D 1965 (W (PLP)

2. The appellant resisted the plaintiff's suit on the ground inter alia that the plaintiff was between 19 and 20 years of age at the time of the institution of the suit and her age should be determined by X‑ray ; that his marriage with the plaintiff was duly solemnized on 8‑1‑54 in the presence of a large number of Birathri, but her father on account of greed was securing the release of the plaintiff with a view to marrying her somewhere else; that she had no right of puberty and that the right of puberty had been lost. The following issues were settled in the case:‑ (1) Whether the plaintiff is the legally wedded wife of the defendant ? O. P. D. (2) If issue No. 1 is proved, whether the plaintiff is entitled to a decree for dissolution of marriage on the ground of exercise of option of puberty ? O. P. P. (3) Relief.

3. The learned trial Court on the evidence led by the parties recorded the finding (1) that the plaintiff was legally wedded wife of the defendant, (2) that she was married to the defendant during her minority, (3) that at the time of institution of the suit she was below 18 years of age, and (4) that as the marriage so far had not been consummated, the plaintiff was entitled to exercise the right of puberty. In the result, the plaintiff was granted a decree for dissolution of marriage but made no order as to costs. Abdul Sattar feeling aggrieved went up in appeal to the District Judge but with no success, in that learned District Judge by his order dated 25‑4‑63 affirmed : judgment and decree of the trial Court, but left the parties to bear their own costs. Abdul Sattar has come up on further appeal.

4. The appeal was admitted on the following three grounds (1) That the learned trial Court committed a material irregularity in not considering the evidence of the petitioner in regard to the age of the plaintiff-respondent. (2) That the petitioner had moved the trial Court to order the X‑Ray examination of the plaintiff-respondent, but the latter refused to be X‑Rayed, which showed that she was more than 18 years of age. (3) That the evidence of doctor in regard to the age was a mere opinion and no weight could be attached to it. At the final hearing however, Mr. Muhammad Ismail, learned counsel for the appellant raised an ingenious argument that the plaintiff respondent could not have been granted a decree for dissolution of marriage for her failure on the witness stand to have at all adverted to the fact of having exercised the right of puberty.

5. Dr. Abdul Rahim, learned counsel for the plaintiff: respondent in reply argued that the grounds on which the judgment of admitting of the appeal were not available to him, in that the appellant tried to canvass the concurrent finding of the two Courts on the question of fact, namely, whether the plaintiff respondent was over 18 years of age at the time of the institution of the suit. With regard to the argument that decree for dis solution of marriage could not be pronounced in favour of the plaintiff for her failure on the witness stand to reiterate the allegation contained iii the plaint that on attaining puberty she had repudiated the marriage, it was argued that a girl given in marriage during minority on attaining the puberty had the right to ratify or annul the marriage and the fact that in her statement in the Court she refused to go with the defendant and even denied that she was his wedded wife were by themselves sufficient to constitute annulment of the marriage and, at any rate, the fact that the plaintiff had not permitted the marriage to be consum mated so far would tantamount to withholding of the assent.

6. I have been taken through the evidence as elaborately as in first appeal and after giving the arguments addressed at the Bar my careful consideration, I have formed the opinion that there is no merit in the appeal.

7. There is concurrent finding of fact by the two Courts below that at the time of institution of the suit, namely, 15‑7‑61, she (plaintiff) was below 18 years of age, and this finding of fact, according to law, is conclusive and cannot be canvassed in the second appeal in particular when there is evidence to sustain the finding. The learned counsel for the appellant tried to suggest that the refusal of the plaintiff‑respondent to submit to medical examination by a Lady Doctor or X‑Ray test would entitle the ‑ Court to draw adverse inference against the plaintiff and hold that she was over 18 years of age at the time of the institution of the suit. The argument in my view cannot prevail for the sensible reason that presumptions arising under section 114 of the Evidence Act are not presumptions of law but of fact ; they are, therefore, like other presumptions of fact discretionary and not obligatory, i.e., there is no compulsion on the Court to draw such presumption and it is free to draw such presumption or refuse to draw the inference depending on the facts of each case. The presumptions of fact, are rebuttable and may be rebutted either by the party's own evidence or by evidence of the opposite‑party. In the instant case there was ample evidence in the case comprising of the statement of the doctor, plaintiff's own evidence, and the evidence 4 her father to sustain the finding that she was below 18 years of age at the time of institution of the suit. This finding of fact having been affirmed by the District Judge renders the finding unassailable in the second appeal, in particular when the Courts below had not ignored any material evidence on the mere ground that they refused to draw any adverse inference against the respondent. Reference may be made to the high authority of the Privy Council reported in Basiram Saha Roy and others v. Ram Ratan Roy (A I R 1927 P C 117). In that case their Lordships recorded the following observation when the District Judge revers ing the finding of the trial Court held that the estate was held in common tenancy :‑ "He has distinctly found that the estate was held in common tenancy. This is a finding of fact which according to law is conclusive, and which the High Court and their Lordships are bound to accept without further enquiry."

8. With regard to the argument that the plaintiff‑respon dent had not in her statement at all adverted to her having exercised the right of option of puberty, the argument though c specious does not bear scrutiny in view of the well accepted principles governing the option of puberty. One of the most important principles is that a minor girl contracted in marriage retains the option up to the age of 18 years until she expresses her consent or disapprobation in express terms. In other words, the right of annulment continues until she expressly ratifies it say by express words or by cohabiting with the husband, or by asking for her dower or maintenance. I am fortified in this view by the following passage which occurs in the Ham : Hedaya (Grady's), page 38:‑ "The right of option in a virgin after maturity is done away with by the same circumstance, nor until she expresses his approbation by word or by deed, 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 express 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." The same view was approved in Abdul Karim v. Mst. Amina Bibi (157 I C 694) wherein it was held that "if she (the wife), is living with her husband when she arrives at puberty, her option is not deter mined unless she assents explicitly or by implication to the marriage. Nor is mere consummation sufficient. There must be consummation with the wife's consent. Moreover, all the necessary facts must be proved by the husband to the satisfac tion of the Court. The Court leans in such cases in favour of the wife." I may also borrow the words of the Privy Council in Malka Jahan Sahiba v. Muhammad Askaree Khan ((1837 L R I A Sup. Vol. 192)), wherein their Lordships of the Privy Council laid down that "where a minor girl has been contracted in marriage, the matter ought to be propounded her on her attaining majority so that she may advisedly give or withhold her assent". The concluding words "she may advisedly give or without her assent" are very signi ficant. In other words, there must be some clear evidence that the minor has assented to the marriage and in absence of any such evidence it will be reasonable for the Court by parity of reasons to assume that the assent has been withheld, in particular in case where the marriage has remained unconsummated. The withholding of assent can be expressed in variety of ways. It may be indicated by the fact that without having recourse to institution of suit for the dissolution of marriage the girl may, where there has been no consummation and provided also that she is not more than 18 years, get remarried, as held in Muhammad v. Emperor (140 I C 617). It may be indicated by serving a notice on the husband through an attorney or publishing a notice in News Paper that the option of puberty has been exercised. It may be manifested by the mere institution of a suit for dissolution of marriage which may eventually be dismissed in default under Order IX, rule 3, C. P. C. In the instant case there is the categorical averment in the plaint that the option of puberty has been exercised. That in my view is an unequivocal expression of renunciation of the marriage. I may borrow the words of Mr. Justice Johnstone in Mst. Hasan Bibi v. Fazal Elahi (121 I C 381 ). "The bringing of the suit is in itself an exercise of that option and it cannot be held that there has been any unreasonable delay."

9. In the result the appeal fails and is dismissed, but in the circumstances of the case, I make no order as to costs. K. B. A. Appeal dismissed.