NAKSETAN BIBI Vs. HABIBAR RAHAMAN MANDAL

JUDGEMENT

(1.) This appeal by the plaintiff arises out of an order of remand passed in a suit for dissolution of marriage under Act 8 [VIII] of 1939.

(2.) Shortly stated, the material facts of the case are as follows: Plaintiff was born in 1929 and married to the defendant in 1937; there was disagreement between the parties and the plaintiff instituted the present suit in 1943 on diverse grounds for the dissolution of her marriage. One of the pleas, amongst others, taken by the defendant husband in his defence was that the plaintiff being a minor could not bring the suit without a next friend and the suit as framed was therefore not maintainable; the issue raised in this connection was issue 1, namely, "is the suit maintainable in the present form?" Regarding this issue, which was tried along with the other issues in the case, the learned Munsif observed as follows: there is no defect in the framing of the suit. The issues framed by mo are answered by me thus (1) the suit is maintainable in the present form.... and upon his finding in favour of the plaintiff in respect of the other issues also, he decreed the suit. The defendant thereupon appealed and the learned Judge in the Court of appeal below by his order dated 16 March 1944, set aside the judgment and the decree of the trial Court and remanded the case for a fresh trial observing in the course of his judgment as follows: the defendant in para. 3 of his written statement has taken the objection that the suit cannot be maintained by the plaintiff as she is still a minor. An issue was accordingly raised whether the suit is maintainable in the present form. Unfortunately, however this point has been completely overlooked by the learned Munsif. The defendant in his ground of appeal has taken the selfsame objection. He, also by his order dated 13 March 1944 allowed the amendment of the memorandum of appeal and the plaint by putting therein the father of the plaintiff as her next friend and guardian. Against the order of remand, the plaintiff has preferred the present appeal and has objected therein in her grounds of appeal to the order of amendment of the plaint and the memorandum of appeal, which was passed by the learned Judge. The defendant also has filed a cross-objection against the decision of the Court of appeal below.

(3.) It is urged by the learned Advocate for the appellant that the Court of appeal below had failed to notice that the trial Court had recorded its finding as to the maintainability of the suit by holding that the suit as framed was maintainable while deciding Issue 1. It is further urged that in view of Section 2, Majority Act, 9 [IX] of 1875 the Court of appeal below is in error in holding that the plaintiff was not entitled to sue without a next friend despite Order 82, Rule 1, Civil P.C. It is pointed out that the plaintiff who was a Muslim girl, having attained her puberty as found by the trial Court, ceased to be a minor under her personal law, and was competent to sue in her own name. Reference in this connection was made to the cases in Ahmed Sulaiman V/s. Mt. Bai Fatma 18 A.I.R. 1931 Bom. 76, Mt. Fatma Khatun V/s. Fazlul Karim , Shrinbai V/s. Khurshedji ( 98) 22 Bom. 430 and Mt. Atia Begum V/s. Mahomed Ibrahim ( 16) 3 A.I.R. 1916 P.C. 250. On the other hand, it is urged by the learned Advocate for the respondent that Section 2, Majority Act, 9 [ix] of 1875, does not obviate the necessity of appointing a next friend or a guardian of a person below the age prescribed as his age of majority under Section 3, Majority Act; and all that it does is to confer competency on the minor to enter into certain transactions which would be forbidden to him under Section 11, Contract Act. It is said that capacity to contrast is something different from capacity to sue and Section 2, Majority Act, does not affect Order 32, Civil P.C. which must be complied with. Furthermore, it is argued that in any event a suit for dissolution of marriage does not cover "the capacity of any person to act in the matter of marriage" as contemplated under Section 2, Majority Act, 9 [IX] of 1875; and reference is made to the cases in Puyikuthithayi Umah v. Kairhirap-okil Mamud ( 81) 3 Mad. 248 and Usman Ali Khan V/s. Mt. Khatun Banu 29 A.I.R. 1942 Oudh 243.