Abdullah Dar vs Mst. Noori

J.N. Bhat, J.—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 staged, in her plaint that if any marriage had been performed by her with the Petitioner, she was not

bound by it.

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 of 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 ravision that the suit could proceed and

the Plaintiff-Respondent could institute the suit without a next friend.

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 instituting the suit. But his grievance was that under the provisions of

Order 32 of the CPC the Respondent continued to be a minor as admittedly she was below 18 even now. Her suit could be instituted only through

a next friend' 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 friend 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 Abdul Azeez Vs. Pathumma Bi, . 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. TV Division Bench who

heard this case consisted of Rajamannar, C.J. and Venkatarama Ayyar J. Rajamannar, C.J. while delivering the judgment of the Division Bench

held that the provisions of 0rder 32, Rule 1 of the CPC were not in any way affected by Section 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 swyant in the Presidency Small Cause Court, without being represented by a next friend.

In AIR 1942 243 (Oudh) a Division Bench of that Court also held the same view.

I In Najmunnissa Begum Vs. Sirajuddin Ahmad Khan and Another, it was Laid' down:

Once a marriage has been performed and the dower is settled, a wife who (although a major according to the personal law of the lady) is still a

minor under the Majority Act, 1875, is not competent ,to relinquish a whole or part of her dower to change its character.

On the other hand, there are a number of authorities which hold a contrary view. Some of the more important of them are as follows:

Qasim Husain Reg Vs. Bibi Kaniz Sakina , Bai Shirinbai v. Kharshedji ILR 22 Bom 430, Ahmed Sulaiman v. Mt. Bai Fatma AIR 1931 Bom 76,

Naksetan Bibi v. Habibar Rahaman AIR 1948 Cal 66 , Dharani Mohun Roy Vs. Prafulla Kumar Mitra, and Kinaram Das and Others Vs. The

State, . Of these authorities, Qasim Husain Reg Vs. Bibi Kaniz Sakina is a Division Bench authority, the Bench consisting of Sulaiman C. J. and

Iqbal Ahmad, J. ILR 22 Bom 430 is also a Division Bench authority the Bench consisting of Farran C. J. and Hosking, J.

Similarly AIR 1931 Bom 76 is also a Division Bench authority, the Bench in that case comprising Madgavkar and Barlee, JJ.

In my opinion the correct position of law is given in the latter set of authorities enumerated above. The reasoning of Rajamannar C. J. in AIR

1952 Mad 754 (Supra) does not appeal to me as correct. His observations that a minor can bring a suit for his services in the Presidency Small

Cause Court, without being represented by a next friend, supports rather then negatives the contention that Section 2(a) of the Majority Act is an

exception and overrides the provisions of 0rder 32 of the CPC Whenever the legislature has thought fit to override the provisions of Order 32, it

has done so by specific legislation such as the Indian Majority Act. Section 2(a) of this Act reads as follows:

Nothing herein contained shall affect the capacity of any person to act in the following matters (namely) marriage, dower, divorce and adoption.

It has been held by all the authorities referred to above that the word 'act' is a much wider term then the word 'contract' and it has been rightly

held to include the power to institute suits. If this interpretation were not given to this enactment and the interpretation of the Madras Bench

adopted, it would lead to ridiculous results. It would mean that a person can enter into a marriage, cancel a marriage or do any other act with

respect to his marriage except to institute or defend a suit. Further this view is more or less a contradiction in terms. For the definition of a major

the provisions of this Act, are held applicable as has been accepted by Rajamannar C. J. when he says ""There is no definition of% a minor in the

Code nor in the General Clauses Act. The Indian Majority Act, IX of 1875 provides that every person domiciled in British India shall be deemed

to have attained his majority when he shall have completed his age of eighteen years and not before."" But it ignores the other provision Section 2(a)

of the same Act which provides an exception. I do not understand wherefrom the protoganists of this view have found that the definition of a major

as given in the Majority Act does apply to Order 32, CPC and not the exception as given in Section 2(a) of the same Act. ln my opinion this

provision of the Majority Act was enacted to allow parties, among other things, to fight out cases in their own name when they had attained

majority according to their personal law, notwithstanding the fact that they had not attained majority under the Majority Act.

The result is that the order passed by the Munsiff Pulwama is proper and there is no force in this revision petition which is rejected. The parties

and their counsel being in Srinagar, a copy of this order along with the file will go to the trial Court. The trial Court will inform the parties and their

counsel of this order.