ATA MUHAMMAD CHAUDHRY Vs. MUSAMMAT SAIQUL BIBI

JUDGEMENT

(1.) This was a suit by two daughters of Musammat Rakima by Hashmat Ullah for their share in the property left by Hash matullah. The defence was that they were illegitimate. The first Court decreed the claim and that decree was upheld by the lower appellate Court. The defendants prefer a second appeal. It is argued on their behalf that the plaintiffs are illegitimate. It appears that Musammat Rakima, while a minor, was first given in marriage to a minor, Shafi. After a week, she was given in marriage to another minor, Zakaria. After a time, a divorce was pronounced either by the minor husbands, Shafi and Zakaria or by their fathers. Musammat Rakima after being divorced was married to Hashmatullah and gave birth to the plaintiffs by him during the life-time of Shaf and Zakaria. The above facts are admitted on both sides, and it has been found by the lower appellate Court, in answer to the issues remitted, that Hashmatullah when he married Musammat Rakima was familiar with the marriages and divorces of his cousin, Musammat Rakima.

(2.) On the above facts, two points arise for decision: (a) Can a minor or his guardian validly divorce his (minor s) wife? (b) Is the issue of a minor's wife, divorced either by him or by his guardian, by a second husband, who marries her with the knowledge that she is the wife of the minor and divorced by him or by his guardian, legitimate?

(3.) The Hanafi lawyers are agreed that a guardian has no power to divorce the wife of his ward. They are also agreed that a minor during his minority has no power to do so. The first portion of the rule has been expressly stated by the author of the Radd-ul-muhtar In commenting on a text of the Durr-ul-mukhtar (1), he has said so (2). The source of the above rule is a tradition (3).