MUSAMMAT BISMILLAH BEGAM Vs. NUR MOHAMMAD

JUDGEMENT

(1.) This appeal arises oat of a suit biought by the plaintiff-appellant, Musammat Bismillah, for a declaration that she had lawfully repudiated her marriage with her husband the defendant-respondent, Nur Muhammad, and that the decree, dated the 31 March 1916, obtained by the latter against her for restitution of conjugal rights was of no force. She alleged that she repudiated the marriage soon after the attainment of her puberty. The admitted fasts are that the marriage between the parties took place when the plaintiff appellant was a minor and the marriage was brought about under the guardianship of her mother. Sometime after the marriage Nur Muhammad, who himself was a minor at the time of marriage, sued for restitution of conjugal rights and obtained a decree on the 31 of March 1915. On the 27 of August 1917 the suit out of which this appeal has arisen was filed by Musammat Bismillah for the declaration mentioned above. At the time of the suit the age of her husband was 17. Several pleas were urged on behalf of the defence. The Court of first instance dismissed the claim, holding that the plaintiff was still a minor, that there bad been a valid retirement between her and her husband and that the repudiation, if any, was invalid. On appeal the learned Judge affirmed the decree of the first Court on the Bole ground that the repudiation by Musammat Bismillah was not made immediately on attaining her puberty but within two or three months of it. The parties, being Sunnis. are bound by the Hanafi Law and according to the learned Judge under that law the repudiation ought to have been made immediately on attaining puberty.

(2.) Musammat Bismillah came up in second appeal to this Court and her appeal same up for hearing before a learned Judge of this Court It was represented to him that the dispute between the parties raised an important point of law and that the appeal should be referred to a Bench of two Judges. The learned Judge acceded to the request of the learned Counsel for the parties and has referred the case to a Bench of two Judges.

(3.) We do not at present express any opinion upon the merits of the case or the accuracy of the finding of the learned Judge of the lower Appellate Court. We think it advisable in the interests of justice to have a finding on the following point, namely: When did Musammat Bismillah first come to know that she had a right of repudiating her marriage?