ABDULLAH DAR Vs. NOORI

JUDGEMENT

(1.) THIS is a revision application against an order dated 14 -10 -63 passed by the Munsiff Pulwama in a suit brought by the non -applicant against the petitioner. The suit related to a declaration that the respondent was not the wife of the petitioner and he should not give out that she was his wife. The respondent further stated in her plaint that if any marriage had been performed by her with the petitioner, she was not bound by it.

(2.) IT seems that when the case was almost ripe for argument, an application was presented by the petitioner in the court below that the respondent being a minor could not institute the suit without a next friend and that the suit be struck off. Objections were filed by the plaintiff to this application of the defendant -petitioner, and after hearing arguments the trial court held by its order under revision that the suit could proceed and the plaintiff -respondent could institute the suit without a next friend.

(3.) IN this revision petition it has been conceded by the learned counsel for the petitioner that the respondent had attained the age of majority according to her personal law, i. e. she had attained puberty, at the time of institution of the suit. But his grievance was that under the provisions of O. 32 of the Civil P. C. the respondent continued to be a minor as admittedly she was below 18 even now. Her suit could be instituted only through a next fried and she could not institute the suit personally. In other words, the point that arises for decision in this case is whether a person who has attained majority according to the personal law to which he or she is subject but is not a major according to the provisions of the Majority Act, can institute or defend a suit without a next friend or a guardian -ad -litem as the case may be. On this point there is a conflict of views of the Indian High Courts. The High Courts of Madras, Oudh and Patna have been of the view that in such a suit the appointment of a next fried or a guardian ad litem is necessary, whereas the High Courts of Allahabad, Calcutta and Bombay have held a contrary view. The latest authority of the Madras High Court on the point is A. I. R. 1952 Madras 754. In that case Basheer Ahmed Sayeed J. before whom this point had come up for consideration, having found himself faced with conflicting authorities on the point, referred the matter to a Division Bench. The Division Bench who heard this case consisted of Rajamannar C. J. and Vekataram Ayyar J. Rajamannar C. J. while delivering the judgment of the Division Bench held that the provisions of O. 32 r. 1 of the Civil P. C. were not in any way affected by S. 2 (a) of the Majority Act. His lordship in his judgment pointed out that a minor can file a suit for the recovery of a sum not exceeding Rs. 500 which is due to him for wages or for piece of work or for work done as/ a servant in the Presidency Small Cause Court, without being represented by a next friend.