1985 PLP 1808 (CLC)

MUHAMMAD ASLAM MIAN, J.-- Intra-Court Appeal has been brought from an order dated 5-11-1983 of a learned Single Judge of this Court who dismissed the writ petition (W.P.No.4607/83) filed by the appellant against a judgment and decree dated 24-9-1983 passed by Syed Nasar All Shah Judge Family Court, Shahpur, dissolving the marriage between the appellant and respondent No.2.

2. Briefly the facts of the case are that respondent No.2 instituted a suit for jactitation against the appellant on 18-10-1983 in the Court of the Judge Family Court, Shahpur alleging that she was a minor and was suing through her mother. At the time of her Nikah, dated 30-1-1982 she was minor and at the time of the suit she was 13-14 years old. She had not accorded her consent to the Nikah as she could not. She was given by her father in Nikah collusively which Nikah was brought about under duress. Her age was stated in the Nikahnama wrongly. The marriage was not consumated, she was still virgin and in case the appellant attempted to establish the Nikah as free of any defect, then she in the exercise of her right of option of puberty repudiated the Nikah as no Rukhsati had been effected upto the time. The suit was resisted by the appellant who maintained that at the time of marriage respondent No.2 had already attained the age of majority; the suit as brought was collusive; respondent No.2 was estopped from bringing the suit by her act and conduct; respondent No.2 was the legally wedded wife of the appellant. The learned Judge Family Court, according to the pleadings of the parties framed the issues and proceeded to try the suit.

3. The learned Judge Family Court in his judgment observed that respondent No.2 had deposed that at the time of Nikah her age was 12 years and at the time of deposition her age was 14 years, since her statement received material support from her mother, so that was to be given enough credence and gave his findings that at the time of Nikah respondent No.2 was not above the age of 12 years as such had not attained the age of majority; the statement of respondent No.2 that she was coerced to thumb mark the Nikahnama and she did not accept the appellant as her husband, amounted to a declaration by respondent No.2 constituting a repudiation of marriage in the exercise of her right of option of puberty; there was nothing on the record to show that the suit was collusive or the plaintiff (respondent No.2) was estopped from filing the suit either by her act or conduct; respondent No.2 was not the legally wedded wife of the appellant.

4. The appellant being aggrieved filed a writ petition against the decree dissolving the marriage. Before the learned Single Judge it was argued that respondent No. 2 at the time of the institution of the suit was 14 years old as the suit was filed within one year of the Nikah. The suit was premature, as such, a suit for exercising the right of the option of puberty was to be filed after attaining the age of 16 years. The learned Single Judge on taking the perusal of section 2(vii) of the Dissolution of Muslim Marriage Act, 1939, was of the opinion that no minimum age limit had been prescribed for instituting a suit. The necessary conditions as prescribed were only two: (i) repudiation before age of 18 years; and (ii) non-consumation of marriage. The repudiation could be established even by conduct. A girl on reaching puberty if refused to recognize the Nikah and to leave her parental home that would be sufficient to furnish strong corroboration to repudiation. According to the learned Judge no jurisdictional error was committed by the learned Judge Family Court in dissolving the marriage, so he dismissed the writ petition in limine.

5. The learned counsel for the appellant has in this appeal contended that the suit was filed on 18-1-1982 viz. less than one year after the performance of Nikah. The age of respondent No. 2 at the time of filing the suit was less than 13 years since the learned trial Judge has given his finding that respondent No. 2 at the time of Nikah was not above the age of 12 years. The right of option of puberty could be exercised in law after attaining the age of 16 years and before the age of 18 years, unless that was established by evidence that the puberty had been attained earlier than 16 years. There was no averment in the plaint that respondent No. 2 had attained puberty at the time of filing the suit nor was there any evidence to that effect. The trial Judge and the learned Single Judge have taken an erroneous view that the right of option of puberty can be exercised even before attaining the age of 16 years or before attaining puberty. In support of his contention the learned counsel has referred to section 2(vii) of the Dissolution of Muslim Marriage Act, 1939 which provision is: Grounds for decree for dissolution of marriage

A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: (i) .............................................................................................................. (ii) .............................................................................................................. (iii) .............................................................................................................. (iv).............................................................................................................. (v)............................................................................................................... (vi).............................................................................................................. (vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consumated; He has also relied upon Mst. Daulan v, Dosa P L D 1956 (W.P.) Lah. 712, in this case while analysing section 2(vii) of the Dissolution of Muslim Marriage Act, 1939 in which at that time instead of the age of 16, 15 years was mentioned, it was observed:- "Clause (vii) is capable of an interpretation that repudiation takes place when the age of 15 has already been reached. The words before she attained the age of 15 years can quite properly be interpreted as implying that she has already attained the age of 15 when she repudiates the marriage. Under Muslim Law there is a presumption of attainment of puberty at the age of 15 but this presumption is rebuttable. Clause (vii) of section 2 adopts 15 as the fixed age of puberty without an opportunity of rebuttal. This clause does not speak of puberty at all but only of an age though in fact it deals with the option arising at puberty and the only way in which it can be reasonably interpreted is that a woman who has before the age of 15 years been given away in marriage by her guardian is allowed to repudiate her marriage for a period of three years after she attains the age of 15 and before she attains the age of

18. The clause eliminates the fight over proof of puberty." Mst. Sarwar Jan v. Abdul Majid P L D 1965 (W.P.) Pesh. 5, in this decision with reference to an issue that whether the plaintiff had exercised her- right of option of puberty within 15 to 18 years of age it was observed: "One of the most important principles is that a minor girl contracted in marriage retains the option upto 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 so by express words or by cohabiting with the husband or for asking the husband for her dower or maintenance." Muhammad Amin v. Mst. Surraya Begum and 2 others P L D 1970 Lah. 475, in the case under consideration the learned Judge observed: "I am, therefore, convinced that all the three requirements of the option of puberty namely the performance of marriage during minority with the consent of the guardian, its non-consumation, and its repudiation between the age of 16/18 years were fully satisfied." Mst. Janat v. Additional District Judge, Jhang and 2 others P L D 1981' Lah. 68, in this case it was observed: "According to law a marriage can be dissolved by a woman after attaining the age of puberty but before she attains the age of 18 years without the aid of the Court. It is not necessary for her to approach the Court for exercise of such option, she can exercise such option otherwise and if the other party challenges her such position of having exercised her option then on account of accrual of cause of action in her favour she may approach the Court for declaration. Even otherwise her mere filing of the suit with regard to exercise of her right of option of puberty would be a notice to her husband for dissolution of marriage on that account; provided the marriage has not already been dissolved by the wife by exercising such right. In any case under the law such right has to be exercised before the attainment of the age of 18 years and after attaining the age of puberty."

6. The learned counsel for respondent No. 2 has on the other hand, supported the decree of the learned Judge Family Court and the order of the learned Single Judge by maintaining that the minimum having not been fixed the suit could be brought for the exercise of the right of option of puberty or the option of puberty could be exercised even before she attained the age of 16 years or the age of puberty.

7. There is substance in the submission of the learned counsel for the appellant as to the applicability where the benefit of section 2(vii) of the Dissolution of Muslim Marriage Act, 1939 is sought and he in this behalf stands supported by the above quoted decision in Mst. Daulan v. Dosa. We are in respectful agreement thereto with the interpretation as accorded by the learned Judge to the provision in which before the amendment the age was fixed as fifteen years, so accordingly the minimum age for repudiation of marriage is on attaining the age of 16 years (as amended) as expressed in section 2(vii) of the Dissolution of Muslim Marriage Act, 1939 since the provision so obtaining as a matter of course is to be treated as exhaustive as to its applicability for every thing to be looked into the same which very neatly mentions two ages, therefore, there is no option but to construe the first one as the minimum and the second as maximum. A marriage contemplated to be repudiated is as having been entered before the age of 16 years, therefore, the step for repudiating the same comes up on the attainment of sixteenth year as the minimum without going for the proof of puberty.

8. But the matter does not end here as in Mst. Daulan v. Dosa PLD 1956 (W.P.) Lah. 712 it has also been observed: "The option of puberty of Muhammadan Law is only a right given to a minor party to a contract to avoid the contract entered into by her guardian on becoming sui juris. As the preamble shows, the Dissolution of Muslim Marriages Act, 1939 , does not purport to effect any change in Muhammadan Law but to clarify and consolidate it. We will not, therefore, adopt any interpretation which effects a fundamental change unless we are forced to do so . The legislature is presumed not to make any far-reaching changes in the existing law without making itself amply clear and in the present case the Act only purports to clarify the law and has provided a saving clause in section 2, keeping all existing grounds of dissolution intact. It may also be pointed out that clause (vii) deals only with respect to the option of puberty of a woman while the Muslim Law grants option of puberty not only to a girl but also to a boy whose marriage had been performed during his minority by his guardian. While, therefore, I agree with the learned District Judge that clause (vii) by itself does contemplate only repudiation after fifteen, I am satisfied that this clause does not exhaust the whole of the right which a Muslim woman has with respect to a marriage performed by a guardian before the attainment of puberty, and that all rights of dissolution by exercise of the option of puberty available under Muhammadan Law are intact." So it is clear and in our opinion the repudiation of marriage in the exercise of the option of puberty is still available at the age of puberty earlier than sixteen years under the Muhammadan Law provided the party concerned takes upon its own self to prove that it attained the age of puberty anywhere before the sixteenth year. There is no doubt as given in the Explanation to Para. 251 of Muhammadan Law by D.F.Mulla that puberty is presumed in the absence of evidence on completion of the age of fifteen years. The puberty can still be proved if it sets in earlier. But in no case it can be held that a marriage can be repudiated at any age after it is entered. The concept of repudiation is akin to maturity. As discussed above either the right as to the repudiation can be exercised at the age of sixteenth as according to aforesaid clause (vii) there is no necessity of proving the puberty or at the age when puberty is achieved where the onus to prove the puberty will lies upon the person who repudiates marriage. This is so since it involves the undoing of a contract of marriage entered into either by a father or a guardian on one's behalf, therefore, at the time of undoing the same a female is to be a sui juris in matrimonial sense. It is a juncture where she is capable of entering into a contract of marriage of her own i.e. where she has the capacity to accord consent without the aid of another. The achievement of .puberty develops a legal capacity either to marry or to undo a marriage where it has not been consumated.

9. In this case it was averred in the plaint by respondent No.2 that in case an attempt was made otherwise to negative the other facts alleged in the plaint "then in the exercise of her right of option of puberty she treats the marriage as repudiated." Such a statement tantamounts to saying as well that she is capable of exercising the right of option of puberty. The case of the appellant before the learned Judge Family Court was as is also set out in ground (a) to this appeal that as per entries in the Nikahnama the age of Maqsood Bibi on the date of Nikah viz. 30-1-1982 was 17 years and as such the marriage was contracted willingly and was a valid marriage. No concrete evidence was produced at the trial to prove that her age at the relevant time was 13/14 years and not 17 years. The entry in the Nikahnama regarding the factum of age would have prevailed and the marriage was not dissolvable on the ground of puberty. So it was never the case of the appellant before the trial Judge that she had not attained the age of puberty. Had he done so then an issue would have been necessarily raised placing the onus on respondent No.2 and she would have with all the probabilities come out with some extra-proof apart from her claim in the plaint. Therefore, the appellant cannot be allowed to raise his case on the ground which was not taken before the learned Judge Family Court. There is no dearth as to the instances in Muslim Fiqah that certain females have been achieving the puberty even before the age of fourteen years. In view of the absence of the plea before the learned Judge Family Court which is being raised now, at least a writ cannot be issued and specifically so when respondent No.2 has in the meantime re-married, therefore, this Intra-Court Appeal is dismissed but there is no order as to costs in the circumstances of the case. A.A. Appeal dismissed.