AHMAD HUSAIN Vs. MTAMIR BANO

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit brought by the plaintiff- respondent for a declaration that the marriage of the plaintiff with the defendant stood dissolved in consequence of the exercise of the "option of puberty" by the plaintiff. It is common ground that the parties to the present litigation are Sunni Mahomedans and that they were married in July 1926. The plaintiff's case was that she was nine years of age at the time of her marriage with the defendant and that her brother Zahiruddin acted as her guardian for the marriage. She further alleged that, some time before the institution of the suit, she became aware of the fact of the marriage and at once exercised the "option of repudiation" and intimated the fact of the repudiation of the marriage to the defendant by means of a written notice. The defendant contested the suit on the allegation that the plaintiff had attained puberty at the time of the marriage. He denied that the plaintiff had the option to repudiate the marriage or that she ever exercised that option. The trial Court held that the plaintiff had attained majority at the time of the marriage, and that, even if she exercised the "option of repudiation," she did so long after she had attained puberty. In view of these findings the trial Court dismissed the plaintiff's suit. On appeal by the plaintiff the lower Appellate Court held that the plaintiff was about nine years of age on the date of the marriage and that "she had not attained puberty at the time of the Nikah." This finding of the lower Appellate Court being based on the evidence in the case, is binding on me in second appeal. Having arrived at this finding the lower Appellate Court proceeded to consider the question whether the option of puberty had in fact been exercised "without unreasonable delay" and it held that "it is proved that the option of puberty has been exercised and without unreasonable delay." The only reason given by the lower Appellate Court in support of this finding is in the following words: As to this it is in evidence that the plaintiff consulted a pleader in Aligarh and had a notice issued to the defendant-respondent.

(2.) I am unable to appreciate the reason assigned by the lower Appellate Court in support of its finding on the question as to whether the "option of puberty" was exercised by the plaintiff and that without unreasonable delay. It may be that the finding recorded by the lower Appellate Court on the question is correct or it may be that Court, without applying its mind to the evidence bearing on the question, recorded the above finding. Be that as it may, the finding does not appear to be satisfactory and accordingly I cannot decide this appeal without having findings on certain issues that I propose to remit to the lower Appellate Court. The law on the question as to when a female, who was married during her minority, should, if she so desires, exercise the right of option to repudiate the marriage, has been settled by this Court in Bismillah Begum V/s. Nur Muhammad (1922) 9 AIR All 155 and Sughra V/s. Muzaffari (1929) ALJ 101. It was held in these cases that the rule laid down by Imam Mohammad is the more reasonable and equitable to be applied to India, namely that a woman a right of repudiating the marriage performed during her minority is prolonged amongst Sunni Mahomedans until she is acquainted with the fact that she has such a right. In other words the woman has the right of repudiating the marriage within reasonable time of her knowledge of the fact that she has the power to repudiate the marriage. Having regard to these decisions, it is necessary to have findings from the lower Appellate Court on the following issues: (1) When did the plaintiff for the first time repudiate the marriage? (2) When did the plaintiff first come to know that she had the right to exercise the option of repudiating the marriage? Parties will be allowed to adduce further evidence on the point and the findings will be returned to this Court within four months from today's date. On receipt of the findings the usual ten days will be allowed for filing objections. The learned Counsel for the respondent placed reliance on the decision of the Lahore High Court in Khanoo V/s. Mt. Bhag Bhari (1925) 12 AIR Lah 66. The learned Judge, who decided that case, observed: That the principle underlying the crude provision of Mahomedan law that the option of puberty must be exercised by a female immediately on the appearance of the physical signs of puberty, which was promulgated to people living under very different conditions from those which obtain today, is that there must be no acquiescence in the marriage by the female, so that the question in all such cases is, whether the plaintiff has acquiesced in the marriage.

(3.) With all respect I am unable to agree with this decision. In the first place I am unable to appreciate what the learned Judge meant by the phrase "crude provision of Mahomedan law." So far as I can see, the provision entitling a minor girl to exercise the option of repudiating the marriage far from being crude is in consonance with the rules of conduct governing a progressive state of society, which allows a person on whose behalf a contract has been entered into during her minority to elect on attaining majority whether she would affirm or repudiate the contract. Apart from this, to hold that a woman has the right to exercise the option of repudiating the marriage so long as she has not acquiesced in the marriage would be to legislate for the Muslims and not to follow the dictates of Mahomedan law, and this the Court is not competent to do. It is to be remembered that there are two parties to a contract of marriage, viz. the husband and the wife and while the law gives the wife in certain cases the option to repudiate the marriage that option has to be exercised within reasonable time as it is not in the interest of society that the finality of the marriage tie should be kept in suspense for an unreasonable length of time.