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Civil Revision No. 35 of 1960, decided on 25th March 1963.
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----S. 115‑Finding of fact‑Cannot be interfered with in revision.
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--Marriage‑Option of puberty‑Minor given in marriage by guardian next in degree in absence of parents or first natural guardian‑Mere absence of guardian does not empower next in degree to give away minor in marriage Gheebat‑ Moonkatat‑Meaning‑Marriage of minor by person not authorised‑ Wife entitled to exercise right of option of puberty.
Hamilton: "Hedaya" Ch. II, p. 39 ; Ballie : "Digest of Muhammadan Law", p. 50 ; Abdur Rahim : "Muhammadan Jurisprudence", p. 331 and "Fatawa‑i‑Alamgiri", Vol. II, pp. 158 and 159 ref.
Ch. Farzand Ali for Petitioner.
A. A. Bhatti for Respondent.
Ghulam Qadir filed Regular Second Appeal No. 35‑60/BWP against the judgment of the learned District Judge in a suit for dissolution of marriage which had been decreed against the appellant. This will now be treated as a civil revision.
2. The facts leading to this litigation are that Mst. Allah Wasai, while a minor, was married to the appellant. The parties are not agreed as to whether she was given in marriage by the father or the grand‑father. However, she filed the present suit for the dissolution of marriage on the ground that she was given in marriage by her grandfather without the consent of her father and consequently she was entitled to exercise the option of puberty. She therefore repudiated the marriage before obtaining the age of 18 years. The suit was resisted by the petitioner on various grounds. The trial Judge framed the following issues:-
(1) Was the grandfather of plaintiff competent according to Sharah to give away plaintiff in marriage O. D.
(2) Did the grandfather of plaintiff give away plaintiff in marriage in the presence and with the consent of the father of plaintiff. If so, was the marriage valid
(3) Is the Act of Dissolution of Marriage Bahawalpur not applicable to the facts of this case O. P.
(4) Whether according to the above Act any girl who had been given away in marriage by her father or grandfather has the right to exercise the option of puberty O. P.
(5) Has plaintiff repudiated the marriage in exercise of her option of buberty
(6) Has plaintiff lost her option of puberty O. D.
(7) Relief.
The suit was dismissed by the trial Judge, but on appeal, the learned District Judge has reversed the finding and has decreed the suit.
3. The learned counsel has attacked the judgment of the learned District Judge on two grounds :‑
(1) That it was proved from the evidence on record that the girl was married by the father himself.
(2) That in the alternative even if the father was absent her grandfather acted as the guardian and gave away the girl in marriage, that in either of the two cases she was not entitled to repudiate her marriage.
4. In support of the first contention, the learned counsel has taken me through the evidence on the point. The learned District Judge has found it against the petitioner that the father of Mst. Allah Wasai was present at the time when she was married. This is a finding of fact and cannot be interfered with in revision petition. Jewan Shah (D. W. 1) claimed to be the Kazi, who performed the Nikah. He admitted that the grandfather signed the Nikah register. This fact alone would show that the finding arrived at by the learned District Judge as regards the presence of the father at the time of the Nikah was a correct finding, because if the father was present at the time of Nikah there is no reason why he should not have signed the Nikah register. I would, therefore, uphold the finding of the learned District Judge on this point.
5. As regards the second contention, the learned counsel relied on Hedaya, Chapter II, page 39, wherein it has been laid down that "if the parents, or other first natural guardians of an infant, should be removed to such distance as is termed Gheebat Moonkarat, it is in that case lawful for the guardian next in degree to contract the infant in marriage". The learned counsel has also cited Baillie's Digest of Muhammadan Law page 50, Abdur Rahim Muhammadan Jurisprudence page 331 and Fatawa i‑Alamgir Vol. II, pages 158 and 159. There is no dispute as regards this proposition because if a guardian is absent the next higher guardian in the paternal line can validy give away the minor in marriage, but the mere absence of the guardian is not enough to empower the next in degree to give away the minor in marriage. The word used is not mere absence but Gheebat‑Moonkatat which would mean that the first guardian should not be easily available. One of the instance cited is that even if the guardian is hidden in the same city and is not available his absence could be treated as Gheebat‑Moonkatat. Some of the jurists have defined Gheebat‑Moonkatat to be the distance which cannot be covered earlier than three days and three nights. The underlying idea seems to be that either the guardian's whereabouts should not be known or he should be at such a distance that he cannot be easily contacted. In the present case the evidence is that Allah Diwaya, the father of the girl, was employed in railway. There is no evidence to show as to how far was he from his home. Without that evidence being on record his temporary absence from his home cannot be treated as Gheebat‑Moonkatat. The burden 'lay on the defendant to prove that the absence of the father of the plaintiff respondent from the home was such that it could be treated as Gheebat‑Moonkatat. In this view of the matter, I would hold that the marriage of the girl by the grand‑father was not authorised. Consequently the plaintiff was entitled to exercise the option of puberty which she will be presumed to have done at the time when she filed a suit for dissolution of marriage in Courts at Multan when she admittedly was below 18 years of age.
6. After the decree for the dissolution of marriage was granted by the learned District Judge, the learned counsel for the respondent informs me that the respondent contracted her marriage and that at the time of the hearing of this appeal she was the mother of two children.
7. In view of all these circumstances I do not consider it fit to interfere in the judgment of the learned District Judge. The petition is, therefore, dismissed but I leave the parties to bear their own costs.
K. B. A. Petition dismissed.
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