Through this appeal, the appellant has called in question the validity of the Judgment and decree of the Family Court Muzafferabad dated 31-12-1995, whereby the suit of the appellant for dissolution of marriage on this basis of option of puberty was dismissed and the suit of the respondent for restitution of conjugal rights was decreed.
2. The succinct facts forming the background of the instant appeal are that the appellant brought a suit for dissolution of marriage on the basis of the option of puberty before the Family Court Muzafferabad. It was claimed by the appellant that her Nikah was performed with the respondent during her age or minority in 1986. On 17-10-1986, after attaining the age of the puberty, the appellant camp to know that on the occasion of the marriage of her brother, Muhammad Fiaz, with the sister of defendant No. 1, when the Barat went to the house of defendant No. 1, then his father imposed conditions. He stated that Rukhsati will only take place, if the father of the appellant will pay them Rs.15000 and the Nikah of the appellant will be performed with the defendant No. 1. The father of the appellant-plaintiff was compelled to do so. The father of the appellant accepted the conditions. He accepted the Nikah on behalf of the appellant with the defendant No. 1. When the appellant-plaintiff came to know about this Nikah, then she repudiated the Nikah. During the pendency of the suit, another suit for restitution of conjugal rights was filed by the respondent. Both the suits were consolidated by the learned Family Judge. The learned Family Court dismissed the suit of the appellant and decreed the suit of the respondent. The instant appeal has been filed against this Judgment of the Family Court.
3. Mr. M. Tabasam Aftab Alvi, the learned Counsel for the appellant contended that in the content No.3 of the plaint, it was pleaded by the appellant "that when the appellant-plaintiff came to know about her Nikah; then she repudiated the Nikah", but there is no specific denial of this content, therefore, it is an admitted fact that the appellant after gaining the knowledge about her Nikah repudiated the Nikah. It was next maintained by the learned Counsel for the appellant that when the marriage has been repudiated by the appellant, then the lower Court has wrongly dismissed the suit of the appellant. It was further maintained by the learned Counsel for the appellant that alternatively, the marriage may be dissolved on the basis of the Khullah, because there is no chance of reconciliation among the spouses.
4. While controverting the arguments of the learned Counsel for the appellant, the learned counsel for the respondent, Raja Gul-Majid Khan, vehemently, argued and admitted that the Nikah between the appellant and the respondent was performed during the age of her minority. He submitted that she was entitled to repudiate the marriage before attaining the age of eighteen years. He submitted that in content No. l of the plaint, it was pleaded by the' appellant that her Nikah took place with the respondent on 17-10-1986 and at that time she was about 13/14 years old, but she filed the suit in 1994, when she was about twenty four years old, therefore, she did not repudiate the marriage till attaining the. Age of twenty four years. Now she cannot repudiate the marriage. There is no proof that she repudiated the marriage on attaining the age of eighteen years. It was also pointed out by the learned Counsel for the respondent that Mst. Sadha Begum appeared as a witness and stated that her Nikah took place on 17-10-1986. At that time her age was 13/14 years and she filed the suit in 1994, when she was about twenty four years old, therefore, she has failed to exercise her right, when she attained the age of eighteen years. The learned Counsel for the respondent also conceded on the point that the marriage was not consummated and no Rukhsati has taken place yet.
5. I have heard the learned Counsel for the parties and perused the relevant record and given my utmost muse to the respective arguments advanced by the learned Counsel for the parties.
6. Section 2 (vii) Dissolution of Muslim Marriages Act, 1939, contains as under:-- "A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:- (i)---------------------------------
(ii) ---------------------------------
(iii) ---------------------------------
(iv) ---------------------------------
(v) ---------------------------------
(vi) ---------------------------------
(vii) That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years."
The aforesaid provision is very much clear. A woman having been given in marriage by her father or guardian during the age of minority, can repudiate the marriage before attaining the age of eighteen years, if the marriage is not consummated. Marriage between Muslims has a religious significance, under Muslims Law. When a minor girl is given in marriage by her father or other guardian, during her age of minority, then she has right to exercise the 'Khiar--ul-Balugh' for repudiating the marriage on attaining the age of eighteen years.
7. It is also pertinent to note that the statute does not prescribe any `particular form or procedure for repudiation of marriage, it may be by oral .Voids or even by conduct signifying rejection of marriage. This view finds support from PLD 1969 Lahore 448 and PLI 1981-Lahore-112.
8. In the instant case, in the content No.3 of the plaint, it was pleaded by the appellant-plaintiff that after gaining the knowledge about the Nikah, she publicly did not accept it and cancelled the Nikah. This content was not specifically denied by the respondent and this fact also finds corroboration from the circumstances of the 'case. According to the parties, their Nikah was performed in 1986, when the appellant was 13/14 years old and rukhsati has not taken place yet.
This circumstance lends support to the version of the appellant plaintiff, that she has repudiated the marriage. The same like proposition arose before the Lahore High Court, in case titled "Sardar Bano v. Saifullah Khan". In that case, the marriage of the appellant was performed with the respondent in the year 1944, when she was a baby of two years. The appellant and the respondent never lived as man and wife, the suit was instituted in 1966, when the appellant was about twenty two years old. It was held by the High Court that despite having attained the 'age of twenty years, she remained separate from the respondent and it furnishes a strong circumstantial corroboration to her repudiation of marriage. I would like to reproduce the relevant portion of the Judgment reported in PLD 1969. Lahore 448-relevant page 452, which reads as under:- The fact that despite the respondent's efforts the appellant's rukhsati could not come off cannot be explained on any hypothesis other than this that she had rejected her marriage performed during her infancy, and she would not recant her repudiation. I consider that the fact that despite having attained the age of more than twenty years, she continued to live apart from the respondent, furnishes a strong circumstantial corroboration of her repudiation of the -marriage in 1958, as stated by her mother and paternal and maternal uncles. Indeed having regard to the nature of the case and the right exercised by the appellant there could have been better evidence than that."
The same view also finds support from PLD 1981 Lah. 68, which reads as under:-- "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."
9. In the instant case, as stated above .That it is admitted by the learned Counsel for the respondent that the marriage has not been consummated, Rukhsati has not taken place, despite the best efforts made by the respondent. He has also filed a suit for restitution of conjugal rights, in which it was pleaded by him, that after the Nikah, she did not live with the respondent as his wife uptill now. According to the version of the respondent, she has attained the age of twenty four years, but uptill now, she did not live with the respondent as his wife and no rukhsati has taken place yet. This circumstance lends support to the fact, I pleaded in content No.3 of the plaint, that she has repudiated the marriage.
10. The not-shell of the above discussion is that this appeal is accepted and the Judgment and decree of the lower Court dated 31-12-1995, are hereby set aside and it is declared that the appellant has repudiated the marriage performed during her age of minority. The suit of the appellant stands decreed and the suit filed by the respondent No. l for restitution of conjugal rights is hereby dismissed. This appeal stands disposed of in the terms indicated above.