Mt. Ayesha vs Muhammad Yunus

Chatterji, J.—This appeal arises out of a suit brought by a minor Mahomedan wife against her minor husband for the dissolution of her marriage with him.

The plaintiff''s case is briefly as follows: The plaintiff is a minor aged about 12 years. Her father died when she was one year old and her mother remarried. The defendant''s father managed to get her married with the defendant without the knowledge or consent of her uncle and legal guardian Haji Hashim. Muhammad Ismail who is a cousin of her mother acted as her guardian at the marriage, but he had no authority to do so. Accordingly the marriage is invalid. Further the marriage was repudiated by the plaintiff after she attained puberty in April 1935. The defendant while denying all the allegations of the plaintiff alleges that at her marriage her uncle Haji Hashim acted as her guardian, that she is over 14 years of age and attained puberty two years ago, that since then she was living with the defendant till August 1935, when she went over to her mother''s place, and also that there has been no repudiation of the marriage by the plaintiff.

Two issues were framed in the suit as follows:

(1) Was the plaintiff legally married to the defendant?

(2) Did the plaintiff exercise the option of puberty?

The learned District Judge who tried the suit has decided both the issues against the plaintiff. On Issue 1, he has held that it was the uncle Haji Hashim who acted as her guardian at the marriage. On Issue 2 he has held that the plaintiff has signally failed to prove that the option of puberty was duly exercised. On these findings he has held that the marriage is binding on the plaintiff. Under the Mahomedan law, the right to contract a minor in marriage belongs successively to the

(1) father, (2) paternal grandfather how highsoever, and (3) brother and other male relations on the father''s side in the order of inheritance enumerated in the table of residuaries. In default of paternal relations, the right devolves upon the mother, maternal uncle or aunt and other maternal relations within the prohibited degrees (Mulla''s Mahomedan Law, Section 208).

So the plaintiff wanted to make out a case that her paternal uncle Haji Hashim did not act as her guardian at the marriage and therefore the marriage was invalid. The defendant''s case is that Haji Hashim did act as her guardian. The plaintiff examined three witnesses, P. W. 2, P. W. 3 and P. W. 4 on the point, but the learned Judge refused to believe their evidence. Nothing has been shown to us which would justify our taking a different view. I therefore agree with the learned Judge in his finding on Issue 1. As regards Issue 2, the plaintiff''s claim is based on the rule of Mahomedan law that when a marriage is contracted for a minor by any guardian other than the father or father''s father, ''the minor has the option to repudiate the marriage on attaining puberty.

In the present case the guardian was other than a father or father''s father; therefore the plaintiff had the option to repudiate the marriage on attaining puberty. The said rule how ever is subject to the condition that the right of repudiating the marriage is lost, in the case of a female, if after attaining puberty and after being informed of the marriage and of her right to repudiate it, she does not repudiate without unreason, able delay (Mulla''s Mahomedan Law, Section 210). The plaintiff''s case is that after attaining puberty in April 1935, she repudiated the marriage; the suit was brought on 7th December 1935. The defendant''s case, on the other hand, is that the plaintiff attained puberty about two years back.

The learned Judge has accepted the defendant''s case on the point and, being of opinion that the plaintiff did not exercise the option of puberty within proper time, has held that the repudiation by her is ineffective. In doing so the learned Judge, I think, has failed to consider the broad aspect of the case. The right to repudiate a marriage is a right which may be unknown to many girls. Repudiation of marriage is not of frequent occurrence. The plaintiff says: "I do not know that a woman can abandon her husband on attainment of majority." Her mother P. W. 2 also says: "I have not seen any marriage being repudiated by any girl." These statements of the girl and her mother are quite plausible and there is no reason why they should not be accepted. The plaintiff further says in her evidence that there has been no consummation of the marriage. There is no denial of this fact by the defendant who did not even examine himself, although according to him the plaintiff after attaining puberty went to his house and was living with him as his wife. The plaintiff and her mother deny that the plaintiff ever lived in her husband''s house.

It appears from the evidence that there was some hitch between the plaintiff''s mother and the defendant''s father regarding some land in respect of which the latter obtained from the former a sale-deed for Rs. 500 after the marriage between the plaintiff and the defendant. Whatever might be the reason, it seems pretty clear that the plaintiff even after attaining puberty has never gone to her husband''s house; nor does she like to be his wife. She brought the present suit expressly repudiating the marriage. There is nothing to indicate that she really became aware of her right of repudiation about two years before the suit as suggested by the defendant.

On the other hand, the circumstances go to show that she wanted her marriage with the defendant to be somehow nullified and when she became aware of her right under the Mahomedan law to repudiate the marriage, she did repudiate it and brought the suit without any unreasonable delay.

In my opinion, she has duly exercised her right of repudiation. The marriage has therefore been dissolved.

I would accordingly allow the appeal and decree the suit declaring that the marriage between the plaintiff and the defendant has been dissolved by repudiation. In the circumstances of the case, I would make no order as to costs either of this Court or of the Court below.

Fazl Ali, J.

I agree.