1. MUHAMMAD SHARIF, C. J.-Mst. Maqsooda Begum plaintiff --appellant brought a suit in the Court of th-. Sub-Judge, Pallandri, on 12-5-1966 for dissolution of her marriage with Muhammad Aslam Khan on the ground of exercise of her option of puberty. The defendant on 9-5-1966 had already instituted a suit in the same Court against Mst. Maqsooda Begum and others for resti--tution of conjugal rights. The Sub-Judge, Pallandri, by his judgment dated 30-10-1967 decreed Mst.
2. Maqsooda Begum's suit on the ground of the exercise of her option of puberty while he dismissed the husband's suit for restitution of conjugal rights. The learned District Judge by his judgment and decree dated 12-7-1968 cancelled the decree passed in favour of Mst. Maqsooda Begum and dismissed her suit while at the same time he decreed the husband's suit for restitution of conjugal rights. Mst. Maqsooda Begum has come up in second appeal against the judgment and decree of the learned District Judge.
3. The marriage of the parties was entered in a register of Marriages and the age of Mst. Msqsooda Begum given in this register is 14 years at the time of the Nikah. Doctor Abdul Jalil, Mst. Maqsooda Begum's witness stated on the score of ossification of bones that at the time of the marriage Mst.
4. Maqsooda Begum was about 13 or 131 years. The learned District Judge has held in his judgment under appal that Mst. Maqsooda Begum was of the age of 14 years at the time of the marriage but he held her disentitled to exercise the option of puberty on the ground that marriage had beers consummated.
5. Mr. Said Muhammad Khan learned counsel for the appel--lant has argued that taking it as a fact, as found by the learned District Judge, that Mst. Maqsooda Begum was of the age of 14 years at the time of the marriage, she was still entitled to exercise the option of puberty because consummation had taken place before she had attained the age of puberty and that the learned District Judge was wrong in law in holding that con--summation before attaining the age of puberty was a bar to the wife exercising her option of puberty. He cited PLD 1949 Lah. 75, PLD 1957 Lah. 651 and PLD 1962 Azad J & K 7 in support of his contention.
6. It was held by Muhammad Sharif, J. In PLD 1949 Lah. 75 that: "The real significance of `option of puberty' and the manner how it is to be exercised, seems to have been not properly grasped or appreciated. The marriage under Muhammadan Law is in the nature of a contract and as such, requires the free and unfettered consent of the parties to it. Normally speaking, a man and woman should conclude the contract between themselves, but in the case of minors i.e. Who have not attained the age of puberty as recognised by Muhammadan Law, the contract might be entered into by their respective guardians. Before the Act VIII of 1939 (The Dissolution of Muslim Marriages Act, 1939) a minor girl given in marriage by the father or the father's father, had no option to repudiate it on the attainment of her puberty but this has now been changed. The contract of the father or the father's father stands on no higher footing than that of any other guardian and the minor could repudiate or ratify the contract made on his or her behalf during the minority, after the attainment of puberty. `Puberty' under Muhammadan Law is presumed, in the absence of evidence, on completion of the age of 15 years. It would, therefore, necessarily follow that the minor should exercise the option after the age of 15 years unless there was evidence to the contrary that the puberty had been attained earlier and the burden of proving this shall lie upon the person so pleading. Anything done by the minor during the minority, would not destroy the right which could accrue only after puberty. The cohabitation of a minor girl would not thus put an end to the option to repudiate the marriage after puberty. The assent should come after puberty and not before, for the simple reason that the minor is incompetent to contract; nor should the consummation have taken place without her consent (Baillie 1. 59 and 59 Bom. 426).
7. This assent might either be expressed or implied. It might be by words or by conduct like cohabitation with the husband. It is also essential that a girl should be aware of the marriage before she could be expected to exercise of her option (vide para. 78) Muhammadan Law by Faiz B.
8. Tyabji (Third Edition)."
9. A. R. Changez, J. Also held in PLD 1957 Lah. 651 that :- "The proviso to section 2 of the Dissolution of Muslim Marriages Act (XIII of 1936), relates to the period between fifteenth and eighteenth year. The expression consummation of marriage means consummation with the free-will and consent of the parties but if the girl has not attained the age of 15 years her consent to the consummation of marriage will not amount to consent in the eye of law. Consummation that took place before the girl had attained puberty does not destroy her right of option of puberty."
10. Learned counsel for the appellant took us through the statement of Muhammad Aslam Khan Mst.
11. Maqsooda Begum's husband to show that consummation, if it had at all taken place, had taken place before Mst. Maqsooda Begum had attained the age of 15 years. Muhammad Aslam stated that the marriage had taken place on 12-1-1964 when he had come home on two months' leave and that on the date of marriage he had still one month's leave left unexpired. Then he went on to say that he again came home on leave during the year 1964 and after that he came home on leave during the year 1966. Marriage had taken place on 12-1-1964 when Mst. Maqsooda Begum was of the age of 14 years and she would complete her 15 years on 12-1-1965. Puberty under Muhammadan Law is said to have been attained on the completion of 15 years, unless there is evidence to the contrary to prove that the girl had attained puberty earlier. When there is no evidence of the attainment of puberty by a girl, the law presumes that she attained the age of puberty on completion of 15 years which she would complete in the present case on 12-1-1965.
12. Pehlwan Khan Mukhtar of Muhammad Aslam Khan respondent alleged that Muhammad Aslam Khan had come home on leave even during 1965 but he could not point out towards any evidence to this effect. The husband's own statement falsifies the Mukhtar's stand. Mst. Maqsooda Begum had attained the age of puberty on 12-1-1965. If there had been any consummation after this date, the wife would have not been entitled to repudiate the marriage but it is clear from the statement of the husband himself that there had been no consummation during the year 1965 at all because he was away from home and did not come home on leave during the year 1965 at all.
13. Marriage under Muhammadan Law is in the nature of a contract which has to be entered into between the parties who are majors I e. Of the age of puberty. The contract of Muslim marriage differs from an ordinary contract inasmuch as an ordinary contract has to be entered into between the parties who are majors under the Majority Act while in the case of a Muslim marriage they can be contracted into marriage by their guardians even when they are minors i.e. They have not attained the age of puberty. The Dissolution of Muslim Marriages Act, 1939 gives the wife the right to repudiate a marriage contract, entered into on her behalf by her guardian, after she had attained the age of puberty which means 15 years in the absence of any evidence of puberty, but before she had attained the age of 18 years. There is a proviso under this provision of the Dissolution of Muslim Marriages Act that the marriage had not been con--summated. Consummation is in the nature of a ratification of the contract and ratification of a contract must be made by free consent of the parties. A wife who bad not attained the age of puberty cannot be said to be competent to give her consent A to the marriage. Consequently consummation if it had taken. Place before the attainment of the age of puberty would be no consummation in the eye of law which would disentitle the wife to exercise her option of puberty. Of course if marriage had been consummated with the free consent of the wife after the age of 15 years, she is debarred from exercising the option of her puberty but where consummation has taken place by force, such consummation does not disentitle the wife to exercise the option of her puberty as I have laid down in PLD 1962 Azad J & K 7.
14. The learned District Judge has erred in law while holding that the marriage having been consummated Mst. Maqsooda Begum was not entitled to exercise the option of pu5erty. We have no hesitation in holding that there had been no consumma--petition of the marriage in the pre3ent case after the attainment of the age of 15 years by Mst. Maqsooda Begum and that con-- summation of the marriage before this age is no bar to the wife exercising her option of puberty on the attainment of the puberty age which is 15 years. We, therefore, accept the appeal with costs and decree Mst. Maqsooda Begum's suit for dissolution of her marriage with Muhammad Aslam Khan. Muhammad Aslam Khan's suit for restitution of conjugal rights stands dismissed.
15. S. A. H.