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Regular Second Appeal No. 691 of 1967, decided on 8th October 1968.

‑ Marriage ‑ "Khiar‑ul‑Baloogh" (Option of puberty)‑Necessary conditions only two: (i) repudiation before age of 18 and (ii) non‑consummation of marriage‑Repudia tion, though required to be established as fact, can be proved even by conduct of woman‑Woman on reaching puberty refusing, despite efforts of husband, to leave parental home‑Circumstance furnishes strong corroboration of repudiation‑Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(vii).

Marriage between Muslims has a religious significance it is described as Sunnat‑ur‑Rasul an example set by the Holy Prophet which every devout Muslim must follow. Nevertheless, marriage under Muslim Law is essentially a secular contract which like any other civil contract requires for its formation free consent of the parties thereto, given either by them personally or by their authorised agents in that behalf. In certain class of cases contracts entered into by guardians or agents do not take effect unless ratified by the principal or other named authority. Under Muslim Law when a minor girl is contracted in marriage by her father or other guardian during her minority, she has the option called Khiar‑ul‑Balugh to repudiate the marriage on attaining puberty, but before attaining the age of eighteen years provided that the marriage has not been consummated. Prior to the enactment of the Dissolution of Muslim Marriages Act, 1939, among the Hanfis, the right of girl, when contracted in marriage by her father or grandfather was hedged with the further condition that she was given away in marriage either "carelessly or wickedly". But this further condition has been done away with by section 2(vii) of the Act with the result that all distinction between the marriage of a minor girl by her father or grandfather or another guardian of the marriage has for the relevant purpose been abolished. A plain reading of the above provision of section 2(vii) of the Dissolution of Muslim Marriages Act, 1939 makes it clear that the repudia tion of the marriage by the woman who was married during her infancy is subject only to two conditions : firstly that she repudiates the marriage before attaining the age of eighteen years and secondly the marriage has not been consummated. The statute does not prescribe any particular form or procedure for repudiation of marriage :. it may be by oral word or even by conduct signifying rejection of marriage. The essence of the matter is the actual repudiation of marriage before attaining the age of 18 years by the woman. Till then the marriage remains inchoate, as it were, liable to dissolution by unilateral repudiation of the woman. In other words the fate of the marriage hangs by the slender thread of unilateral option to be exercised by her before attaining the age of eighteen years. Once it is exercised the marriage stands dissolved. It is true that repudiation of marriage must be established like any other fact. Where repeated efforts for the rukhsati of the woman were made but the same could not come off because of her refusing to go and live with her husband, it was held that this conduct on the part of the woman furnished a strong circumstantial corroboration of the repudiation of marriage.

Shaft Ullah v. Emperor A I R 1934 All. 589 ; Mst. Munni v. Habib Khan P L D 1956 Lah. 403 and Mufeezuddin Mandal v. Mst. Rahimi Bibi (1958) 33 C L J 37 ref.

No marriage between two Muslims constitutes a consideration for another marriage‑Watta Satta (marriage in exchange)‑Each marriage a covenant absolutely independent of the other and must stand or fall on its own merits.

Sardar Zafrullah for Appellant.

]Nab Nuwaz Khan Niazi for Respondent.

Date of hearing : 1st October 1968.

This regular second appeal by Mst. Sardar Bano is directed against the judgment of the learned Additional District Judge, Mianwali, dated 8‑6‑1967, whereby he reversed the judgment of the learned Civil Judge dated 8‑12‑1966, and dismissed the appellant's suit for a declaration that by virtue of her repudiation of her marriage in exercise of her option of puberty, she was no more the wife of Saifullah Khan, respondent herein, or in the alternative for dissolution of her marriage.

2. The essential facts bearing on the case lie within a narrow compass, and are not in dispute. Mst. Sardar Bano was contracted in marriage with the respondent by her father in the year 1944 when she was a baby of barely two years. This was what is described as a "watta satta" marriage in exchange for the marriage of the paternal aunt of the respondent to the maternal uncle of the appellant. The appellant and the respondent, however, has never lived as man and wife and the marriage between them remains unconsummated till today.

3. The appellant instituted the suit leading to this appeal on 23‑7‑1966, on the allegation that in the year 1958, on coming to know of the marriage between her and the respondent, she repudiated the same in exercise of her right of option of puberty. However, the respondent insisted on claiming her to be his wife which obliged her to file the suit for a declaration as to her un married status. She prayed in the alternative that her marriage with the respondent be dissolved, owing to the latter's neglect to provide for her maintenance for more than two years prior to the suit and failure to perform his marital obligations for more than three years.

The respondent contested the suit and on the pleadings of the parties, the following issues were settled by the trial Court:‑

(1) Whether the plaintiff has validity repudiated her marriage in the exercise of her option of puberty

(2) Whether the defendant is guilty of non‑maintenance for a period of more than two years without any reasonable excuse

(3) Whether the defendant has failed to perform his marital obligations without legal justification

4. The learned trial Judge found the second and the third issues against the appellant, but declared her marriage to have been validly dissolved in exercise of her option of puberty on his finding on the first issue. In reaching hat finding, the learned trial Judge relied upon the statements of the appellant, her, mother Mst. Sanjila Khatun (P. W. 1), maternal uncle Khan Zaman (P. W. 2) and paternal uncle Shahbaz Khan (P. W. 3), to the effect that sometime in the year 1958 as there was a talk in the house regarding the rukhsati of the appellant, she denounced her marriage with the respondent and refused to go over to live with him as his wife. The learned trial Judge was impressed by this evidence because in his opinion they were the natural witnesses who could have possibly known her wishes as to whether she was going to abide by the marriage performed during her infancy, therefore true witnesses to the exercise of option of puberty by her.

5. On appeal by the respondent, the, learned Additional District Judge reversed the finding of the trial Court apparently on the short ground that the evidence produced by the appellant was interested and, therefore, inadequate, particularly when the onus lay heavily upon her. His approach to the question can best be summed up in his own words as under:‑

"The repudiation of marriage by a lawfully married woman during her minority is a question of vital importance and the. Judge decreeing the suit in her favour takes upon himself the responsibility of dissolving a lawful marriage on the basis of some definite facts making for the rightful repudiation of marriage alleged by the woman end proved in the Court to its entire satisfaction. The evidence led in this behalf must ring true on the face of it and should inspire confidence to come to a conclusion without any hesitation that the right possessed by the woman was rightly exercised beyond reason able doubt. In the present case, the very reading of the statements of the plaintiff's witnesses who already being most closely related to the plaintiff does not convince as to their truthfulness."

6. The above excerpt from the judgment of the learned Additional District Judge leaves no manner of doubt that his approach to the question before him was entirely mistaken and he, thus, misconceived the true legal position. As I look at the matter, it is not merely a question of believing or disbelieving the appellant or her three witnesses on the point of the repudiation of marriage by the appellant, all of whom impressed the learned trial Judge as trustworthy and who needless to say was definitely in a more advantageous position to evaluate their veracity. I consider that the approach of the lower appellate Court was wholly mistaken resulting in an error in the decision of the case within the meaning of section 100(c), C. P. C.

7. It is true that marriage between Muslims has a religious significance: it is described as Sunnat‑ur‑Rasul an example set by the Holy Prophet which every devout Muslim must follow. Nevertheless, marriage under Muslim Law is essentially a secular contract which like any other civil contract requires for its formation free consent of the parties thereto, given either by them personally or by their authorised agents in that behalf. In certain class of cases contracts entered into by guardians or agents do not take effect unless ratified by the principal or other named authority. Under Muslim Law when a minor girl is contracted in marriage by her father or other guardian during her minority, she has the option called Khiar‑ul‑Balugh to repudiate the marriage on attaining puberty, but before attaining the age of A eighteen years provided that the marriage has not been consum mated. Prior to the enactment of the Dissolution of Muslim Marriages Act, 1939, among the Hanafis, the right of girl, when contracted in marriage by her father or grandfather was hedged with the further condition that she was given away in marriage either "carelessly or wickedly". But this further condition has been done away with by section 2(vii) of the Act with the result that all distinction between the marriage of a minor girl by her father or grandfather or another guardian of the marriage has for the relevant purpose been abolished. Section 2(vii) of the Act reads:‑

"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:‑

(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:

Provided that the marriage has not‑been consummated;

A plain reading of the above provision makes it clear that the repudiation of the marriage by the woman who was married during her infancy is subject only to two conditions : firstly that she repudiates the marriage before attaining the age of eighteen years and secondly the marriage has not been consummated. The statute does not prescribe any particular form or procedure for repudiation of marriage, it may be by oral word or even by conduct signifying rejection of marriage. It was held in Shafi Ullah v. Emperor (A I R 1934 All. 589) that repudiation of a marriage .in the relevant circumstances takes place by something akin to oral repudiation before witnesses. In that case it was held that marriage by the woman with another man on attaining puberty was sufficient to constitute repudiation. In Mst. Munn v. Habib Khan (P L D 1956 Lah. 403) it was held that repudiation of marriage by exercise of option of puberty puts an end to the marriage without the aid of Court and if the matter comes to Court the Court does not dissolve the marriage by its own decree but recognises the termi nation of marriage. Similarly in Mufeezuddin sandal v. Mst Rahima Bibi ((1958) 33 C L J 37) it was held that no decree is required to confirm the repudiation of marriage of a Muslim woman performed during her minority but that the order of the Judge is necessary to impress on the act a judicial imprimatur.

9. Thus, it becomes clear that the essence of the matter is the actual repudiation of marriage before attaining the age of 18 years by the woman. Till then the marriage remains inchoate, as it were, liable to dissolution by unilateral repudiation of the woman. In other words the fate of the marriage hangs by the slender thread of unilateral option to be exercised by her before attaining the age of eighteen years. Once it is exercised the marriage stands dissolved. It is true that repudiation of marriage must be established like any other fact.

10. Bearing the above principle in mind, it can be said at once that the appellant denounced her marriage not only by her oral word before her mother Mst. Sanjila Khatoon, maternal uncle Khan Zaman and uncle Shahbaz Khan, but also by her unequivocal conduct. We have it from respondent's own evidence that he made repeated endeavour for the rukhsati of the appellant when she became of age, but in vain. It is true that he attributed failure of his efforts to the financial difficulties of the appellants parents. But the respondent's own witnesses admit in no unmistakable terms that the appellant's father is a Zamindar and is otherwise very well off. Her brothers are also employed in the army. 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 D 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.

11. The only point urged by the respondent's learned counsel was that the appellant's marriage with the res pondent was in exchange for the marriage of the paternal aunt of the latter with the maternal uncle of the appellant, which still subsists and therefore, the appellant is not entitled to any relief. The argument, if I may say so, is amateurish, having no validity in law. No marriage between two Muslims car constitute a consideration for another marriage even though between close relatives of the parties to the first mentioned marriage. Each marriage is a covenant absolutely independent of the other, and must stand or fall on its own merits, without affecting the other marriage, though purporting to be by way of "exchange" or "Watta Satta" call it what you like.

12. For the foregoing reasons, therefore, the trial Judge rightly declared the appellants marriage with the respondent as having been dissolved in exercise of her option of puberty. Accordingly, I accept the appeal with costs, set aside the judg ment of the learned Additional District Judge and restore that of the learned trial Judge.

A. E. Appeal accepted.

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