The plaintiff filed a suit praying for grant of decree to the effect that she had exercised her right of option of puberty against respondent No. 3 for dissolving the marriage at the time when she attained the age of puberty. In para. 3 of the plaint she alleged that the marriage was performed when she was hardly two years old but after she attained the age of puberty she never went to the house of her husband and as such the marriage was never consummated. She further alleged in her plaint that she repudiated the marriage in the presence of certain witnesses, after she came to know on attaining the age of puberty that she had been given in marriage at the age of two years.
2. The suit was filed . On 5th of April, 1979 and it is admitted that the petitioner was about 29 years at that time. The learned Judge, Family Court dismissed the suit after recording short statement of the petitioner on the ground that suit for dissolution of marriage on the basis of exercise of option of puberty could be filed within 18 years of age and since the suit was not within time, therefore, the same was liable to be dismissed. Her appeal before the learned Additional District Judge also failed on the same ground who observed that since she remained silent for such a long time without approaching the Court for confirmation of the alleged repudiation of marriage, therefore, it could be presumed that he actually gratified the same by her conduct. The relevant provision of law as contained in section 2(vii) of the Dissolution of Muslim Marriages Act, 1939 reads as follows:- "that she, having been given in marriage by her father or other guardian before she attained the age of sixteen years, repudiated the marriage before attaining the age of eighteen years: Provided that marriage has not been consummated."
Section 2 of the Act itself gives right to a married woman under the Muslim Law to obtain a decree for dissolution of her marriage on this ground or on the basis of the grounds mentioned in subsections (i) to (ix) of that section. The bare reading of the aforesaid provision would show that repudiation of the marriage performed during the minority of a woman can be made after she attains the age of sixteen years and before attaining the age of eighteen years. The mode of repudiation has not been prescribed in the provision itself as held in Muhammad Bakhsh v. Crown and others (PLD 1950 Lah. 203) and Mst. Sarwar Jan v. Abdul Majid (PLD 1965 Pesh. 5). The right of annulment continues until the minor girl having been given in marriage during her minority ratifies it by express words or by cohabiting with her husband, by asking for her dower or maintenance or otherwise by her conduct showing her willingness in accepting the marriage. This view gains support from Hedayat by Hamilton page 38, Abdul Karim v. Mst. Amina Bibi (157 1 C 674), Muhammad v. Emperor (140 1 C 617) and Mst. Hasan Bibi v. Fazal Elahi (121 1 C 381). It has been held in all these reports that a minor wife living with her husband unless assents to the factum of marriage explicitly or by implication, ratification of the marriage will not take place and mere consummation will be no effect. If consummation takes place during her minority period it cannot be deemed to be with her consent. The repudiation of marriage during minority can take place by a girl after attaining the age of puberty by her remarriage before she attains the age of eighteen years. It can also take place by serving a notice on the husband and even by instituting a suit fOr dissolution of marriage. Such repudiation can also take place by her established conduct by staying away from her husband after attaining the age of puberty and in having not gone to his house in spite of best efforts on his part..
3. Learned counsel for the contesting respondent while relying upon Article 217 of Muhammadan Law by Mulla has argued that since dissolution of marriage on account of exercise of right of option of puberty has not been ratified by the Court within the age of eighteen years, therefore, the suit being incompetent has been rightly dismissed and the petitioner under the law is no more entitled to get repudiation of her marriage affirmed from the Court after the age of eighteen years. I am afraid this contention has no force. The view taken by Mulla as well as Tayabji in his book, Muhammadan Law (Third Edition) and by some other Jurists has been rightly not approved by our eminent jurist late Justice S. A_. Rehman in PLD 1950 Lah. In his detailed judgment though given in a criminal revision he has held that it is difficult to appreciate the reasons for the distinction drawn by the author of Hedayat between the right of option after manumission and the right of option of puberty. He has held that option of puberty is the absolute right of an individual who is not bound to make an accusation against the guardian before asserting that -right. The person is entitled to relieve himself or herself from the evil. It has been held that Court's order affirming the exercise of right of option of puberty is not required for establishing the right which inheres in an individual. The learned Judge has relied upon the view of another eminent Jurist late Justice Syed Ameer A.I in this behalf according to whom there can be no question regarding the right of exercise of puberty and no decree is required to affirm the same. According to Syed Ameer A.I a Court cannot grant any declaration unless a party who claims the right has himself or herself exercised and asserted the same. According to him the order of the Court is only necessary to cause effective cancellation of marriage. Such judicial declaration is needed to provide judicial evidence in order to prevent disputes, and confirmation and authentication of the exercise of the right. It has been further observed by Justice Ameer A.I that when a girl who has been given in marriage by her mother during her infancy rescinds the contract of marriage after attaining puberty and marries another person, she cannot be convicted of bigamy although the Court has not made any decree in her favour by affirming the rescission of marriage. He has observed that conviction in such cases would be wrong. Justice S. A. Rehman has referred to Hamilton Hedayat, Chapter 11, page 182 and Fatawai Ala:ngiri, page 161 of Urdu translation in support of the view taken by Justice Ameer A.I and has concluded that a Court's order is essential for conferring the validity on the exercise of option of puberty. The Court's order would seem to be only necessary to impress on the act i.e. Exercise of right of option of puberty, the judicial imprimatur in order to avoid any possible dispute. The learned Judge has referred to number of authorities on the point that Court's order to validate the exercise of option of puberty is not necessary. He has held that the better view seems to be that the Court's order is not essential for imparting the validity of the exercise of option of puberty and that in any case a declaration can be given by the Court itself to that effect in any proceedings.
4. Similar view has been taken in Mst. Sardar Bano v. Saifullah Khan (PLD 1969 Lah. 448), Mst. Muni v. Habib Khan (PLD 1956 Lah 403), Mafizuddin Mandal v. Rahima Bibi (AIR 1934 Cal. 104) and Shafi Ullah v. Emperor (AIR 1934 All. 589). It has been held in the aforesaid reports that repudiation of marriage by exercise of option of puberty puts an end to the marriage without the aid of the Court and if the matter comes to the Court, it does not dissolve the marriage by its own decree to recognise termination of marriage. It has been held that no. Decree is required to confirm the repudiation of Marriage of a Muslim woman performed during her minority. Till such repudiation of marriage performed during minority before attaining the age of eighteen years, the marriage remains intact which can be dissolved by unilateral repudiation by the woman. The facts of the case reported as PLD 1969 Lah. Are that the appellant Mst. Sardar Bano before the High Court, was given in marriage with the respondent by her father in the year 1944 when she was hardly - two years of age. When she attained the age of puberty in the year 1958 she came to know that her marriage had already been performed with the respondent but she denounced the same in the presence of her mother, maternal uncle and paternal uncle. She instituted a suit for declaration on 23-7-1966 to the effect that she had repudiated the marriage by exercise of her right of option of puberty in the year 1958, and since the respondent was insisting by claiming her to be his wife, therefore, suit for declaration to the aforesaid effect was necessary. Necessary declaration was granted by the learned trial Court but the learned appellate Court accepted the appeal filed by the husband. Second appeal of the wife was accepted by the High Court mainly on the ground that since despite the respondent's efforts, appellant's rukhsati could not come of, therefore, by her conduct it could be inferred that she had rejected her marriage performed during her infancy, and she would not recall her repudiation. It was held that since she continued to live apart from her husband even after attaining the age of 20 years it furnished a strong circumstantial corroboration of her repudiation of marriage in 1958 as stated by her witnesses. It is significant to notice that the suit for dissolution of marriage was filed by her at the age of about 24 years to the effect that she had repudiated the marriage by exercise of option of puberty.
5. The above discussion would show that according to law a marriage can be dissolved by a woman after attaining the age of puberty but before she attains the age of 18 years without the aid of the Court. It is not necessary for her to approach the Court for exercise of such option, she can exercise such option otherwise and if the other party challenges her such position of having exercised her option then on account of accrual of cause of action in her favour she may approach the Court for declaration. Even otherwise her mere filing of the suit with regard to exercise of her right of option of puberty would be a notice to her husband for dissolution of marriage on that account; provided the marriage has not already been dissolved by the wife by exercising such right. In any case under the law such right has to be exercised before the attainment of the age of 18 years and after attaining the age of puberty.
6. It has been argued by the learned counsel for the contesting respondent while relying upon the observations made by Justice Syed Ameer A.I in his famous book at page 333 (7th Edition), Vol. 11, Edited by Raja Said Akbar Khan, Advocate with regard to implied of ratification that since the petitioner kept silent for a long time so much so that she filed the present suit at the age of 29 years, it clearly meant that she had acquiesced into the factum of marriage with the respondent after attaining the age of puberty. I am afraid this inference cannot be drawn in the given circumstances, rather on the contrary such inference may be drawn against the contesting respondent after due appraisal of the evidence to be produced on record by the parties.
7. In the present case though the suit was filed by the petitioner at the age of 29 years, nevertheless she asserted in paragraphs 2 and 3 of the plaint that she was given in marriage at the age of two years, the marriage remained unconsummated and when she attained the age of puberty she rejected the marriage by exercising her right of option of puberty with due notice to the contesting respondent. It has been alleged that thereafter the parties did not remain as husband and wife which position was accepted by the respondent, who later on illegally started describing the petitioner as his wife. It has been alleged that cause of action accrued to the petitioner two months before the filing of the suit when the respondent described the petitioner as his wife in spite of the fact that their marriage stood dissolved on account of the exercise of right of option of puberty. The contents of the plaint clearly indicate that it is a suit for declaration in spite of the fact that according to the heading of the suit it is for dissolution of marriage. The relief claimed for is grant of decree for dissolution of marriage on the basis of exercise of the right of option of puberty which according to the petitioner was exercised by her immediately after she attained the age of puberty. Such declaration as discussed above, can be granted by the Court under the law and the suit for that purpose is competent. It can, however be ascertained from the evidence to be produced by the parties whether the marriage was dissolved by the petitioner by exercising the right of option of puberty, validly, immediately after she attained the age of puberty. 1f it is so then the present suit will be competent. It cannot be thrown out for the simple reason the same was filed by the petitioner at the age of 29 years whereas according to the lower Courts she should have approached the Court for that purpose before she attained the age of 18 years. There is no doubt that right o option of puberty can be exercised up to the age of 18 years but a suit for declaration that such right was duly exercised within that period competent even after that age.
8. Both the Courts below have acted against law by rejecting the plaint on the ground that it should have been filed by the petitioner before attaining the age of 18 years. Since the petitioner wants declaration to the effect that she dissolved the marriage with the respondent by exercising her right of option of puberty after she attained the age of puberty and thereafter she did not remain his wife the suit in the present form is competent, it being a suit for declaration. The limitation point will also have to be determined by recording evidence. If the Court comes to the conclusion after due appraisal of the evidence the marriage was validly dissolved by the petitioner and the respondent in spite of that started describing her as his wife as alleged in the plaint, before the institution of the suit, the suit will be within time as cause of action in that case will accrue to the petitioner from that period.
9. Learned counsel for the petitioner submits in the alternative that in case the petitioner's plea with regard to dissolution of marriage on the basis of exercise of right of option of puberty does not find favour wit the Court then marriage may be dissolved on the basis of Khula`. I am afraid no order to that effect can be passed by the Court in exercise of extraordinary jurisdiction under Article 199 of the Constitution in the absence of any evidence or material having been brought on record. The petitioner can raise this plea before the learned Judge, Family Court if so warranted by law whom the case is being remanded, who will decide the same according to law, as laid down in Mst. Balqls Fatima v. Najm-Ikram Qureshi (PL D 1959 Lah. 566) and Mst. Khutshid Bibi v. Baboo Muhammad Amin (PL D 1967Lah. 97).
10. As a consequence of the above discussion the judgment and decree passed by the Courts below against the petitioner is hereby set aside. The case is remitted to the learned District Judge, Jhang, who in turn would entrust the same to a competent Court to decide the same afresh in accordance with law and in the light of the observations made above. The suit would be deemed to be still pending adjudication.