SBC SECOND APPEAL NO.434/2007-SMT. KHATIZA TUL QUBRA V/S IQBAL MOHD. : JUDGMENT DTD. 27.1.2009
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
S.B. CIVIL SECOND APPEAL NO.434/2007
Smt. Khatiza Tul Qubra alias Tara Bano
versus
Iqbal Mohd.
PRESENT
HON'BLE Dr.JUSTICE VINEET KOTHARI
Mr.M.A. Siddiqui, for the appellant
Mr.Mukesh Patodia, for the respondent.
REPORTABLE
DATE OF JUDGMENT : 27th January, 2009.
JUDGMENT
1. With the consent of counsels, this second appeal is finally
disposed of at admission stage. Following substantial questions of
law as suggested in the memo of appeal are framed for consideration
by this Court:
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i) When the option of puberty is opted by a lady by
her conduct and same is admitted by the opposite party,
in that situation, whether it is necessary to obtain a
decree for dissolution of marriage from a competent
court?
ii) Whether in the facts and circumstances of the
present case, the suit for restitution of conjugal rights is
maintainable?
Iii) When the plaintiff himself admits that present
appellant has entered into second marriage, then the
decree for restitution of conjugal rights is justified or
not?
iv) Whether the decree of restitution of conjugal
rights can be executed when both the parties have
remarried?
2. The plaintiff – husband Iqbal Mohd. filed a suit for restitution
of conjugal rights in the trial Court with the averment that his
marriage took place with the appellant wife Smt. Khatiza Tul Qubra
D/O Mohd. Aslam Chhipa on 14.4.1984 according to Muslim
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Sheriyat Law at Bhilwara and she was minor at the time of marriage
and was contracted into marriage by her father with the plaintiff and
upon attaining majority, she did not join matrimonial home of the
plaintiff. Therefore, the plaintiff filed the present suit.
3. The defendant – wife filed written statement to the suit denying
the factum of marriage and submitted that she was only 7 years of age
at the time of alleged marriage on 14.4.1984 and even if her father
contracted her into marriage at the age of 7 years, she had repudiated
the said marriage upon attaining the age of puberty of 15 years and
has remarried with another person and since the marriage in question
was never consummated with the plaintiff, she was not bound to go
with him and so called marriage was void and repudiated and
therefore, the suit deserves to be dismissed.
4. On behalf of the appellant – wife D.W.1 Mohd. Aslam, father
of the appellant – wife deposed before the trial Court that on
14.4.1984 when he contracted the marriage of the appellant with the
plaintiff, she was only 7 years of age and she did not understand the
meaning of marriage. She never lived with the plaintiff and the
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marriage was never consummated and the said marriage with the
plaintiff was repudiated by her upon attaining the age of puberty i..e
15 years. She had married with another person on 7.5.2000 and was
living with her husband at Kishangarh.
5. On the basis of evidence, the learned trial Court deciding the
said issue in favour of the defendant – wife dismissed the suit of the
plaintiff- husband. However, the first appeal filed by the plaintiff –
husband before the appellate Court was allowed and the suit was
decreed by the first appellate Court vide impugned judgment
dtd.6.9.2007 and the learned first appellate Court found that since the
respondent did not obtain any decree from the Civil Court for
dissolution of marriage under Section 2 of the Dissolution of Muslim
Marriage Act, 1939, therefore, her first marriage with the plaintiff
was valid as per Section 272 of the Muslim Law Sheriyat and thus,
the first appellate Court found that the defendant could not prove
repudiation of her marriage with the plaintiff and thus decreed the
suit.
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6. Being aggrieved by the same, the defendant – wife has
approached this Court by way of present second appeal under Section
100 C.P.C.
7. Mr. M. Siddiqui, learned counsel appearing for the appellant –
wife submitted that it was not necessary for the appellant- wife to
obtain any decree under Section 2 of the Act and exercising her right
of “Khyar-Ul-Bulugh” (option of puberty), she had validly
repudiated the marriage in question with the plaintiff and had got
remarried and the trial Court had found in her favour about the said
valid repudiation of marriage with the plaintiff which is alleged to
have taken place on 14.4.1984 when she was only 7 years of age and
the said marriage was never consummated and she never lived with
the plaintiff. The learned counsel for the appellant – wife
submitted that the first appellate Court had, without any valid reasons,
reversed these findings of facts of the learned trial Court which could
not be said to be perverse in any manner as the requirement of
repudiation even under Section 2 of the Dissolution of Muslim
Marriages Act was proved by the father of the appellant – wife before
the learned trial Court in his statement and, therefore, the suit was
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rightly dismissed by the learned trial Court and the first appellate
Court could not decree the same. He submitted that the present
second appeal deserves to be allowed and the judgment of the learned
trial Court deserves to be restored.
8. The learned counsel for the appellant relied upon the Division
Bench decision of this Court in the case of Mustafa V/s Smt.
Khursida reported in 2006 WLC (UC) 450 and the judgment of
Lahore High Court in the case of Mohd. Baksh V/s the Crown
through Khuda Baksh reported in AIR 1950 Lahore 133.
9. On the other hand, Mr. Mukesh Patodia, learned counsel
appearing for the respondent – husband relied upon the decision of
M.P. High Court in the case of Piramohammad Kukaji V/s The State
of Madhya Pradesh reported in AIR 1960 MP 24 and the decision of
this Court in the case of Sahnaz Bano (Smt.) and ors. V/s State of
Rajasthan and another reported in 1999(2) RCD 980 (Raj.). He also
relied upon the provisions of Section 275 of the Muslim Sheriyat
Law.
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10. Having heard the learned counsel and upon perusal of the
judgments of two Courts below and the judgments cited at the Bar,
this Court is of the opinion that the present second appeal of the
appellant – wife deserves to be allowed and the impugned judgment
of the first appellate Court dated 6.9.2007 deserves to be set aside
and that of the trial Court dtd.17.5.2006 deserves to be restored.
11. Firstly, a look into the relevant Sections of Mohammadan Law
in this regard, namely, Sections 272, 273, 274 and 275 may be of
relevance and therefore, they are quoted below:
“272. Marriage brought about by father or
grandfather:- When a minor has been contracted in
marriage by the father or father’s father, the contract of
marriage is valid and binding, and it cannot be annulled
by the minor or attaining puberty. But where a father or
father’s father has acted fraudulently or negligently, as
where the minor to a lunatic, or the contract is to the
manifest disadvantage of the minor, the contract is
voidable at the option of the minor on attaining puberty.
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273. Repudiation under the Dissolution of Muslim
Marriages Act, 1939:- By the Dissolution of Muslim
Marriages Act, 1939, all restriction on the option of
puberty in the case of minor girl whose marriage has
been arranged by a father or grandfather has been
abolished and under sec. 2(vii) of the Act a wife is
entitled to the dissolution of her marriage if she proves
the following facts, namely, (1) the marriage has not
been consummated, (2) the marriage took place before
she attained the age of 15 years, and (3) she has
repudiated the marriage before attaining the age of 18
years.
274. Marriage brought about by other guardians :
Option of puberty:- When a marriage is contracted for a
minor by any guardian other than the father or father’s
father, the minor has the option to repudiate the marriage
on attaining puberty. This is technically called the
“option of puberty” (khyar-ul-bulugh).
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The right of repudiating the marriage is lost, in the case
of a female, if after attaining puberty and after being
informed of the marriage and of her right to repudiate
it, she does not repudiate without unreasonable delay.
The Dissolution of Muslim Marriages Act, 1939,
however, gives her the right to repudiate the marriage
before attaining the age of eighteen years, provided that
the marriage has been consummated. But in the case of a
male, the right continues until he has ratified the
marriage either expressly or impliedly as by payment of
dower or by cohabitation.
275. Effect of repudiation : The mere exercise of the
option of repudiation does not operate as a dissolution of
the marriage. The repudiation must be confirmed by the
Court. Until then the marriage subsists, and if either
party to the marriage dies, the other will inherit from him
or from her, as the case may be.”
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12. The Division Bench of this Court in the case of Mustafa V/s
Smt. Khursida reported in 2006 WLC (UC) 450 has held as under:
“14. The Dissolution of Muslim Marriages Act, 1939
specifically deals with the provisions of Muslim Law
relating to the rights of seeking dissolution of marriage
by the woman married under Muslim Law and Section 2
thereof provides for certain grounds on which decree for
dissolution of marriage could be obtained by a woman
married under Muslim Law and the same, with clause
(vii) (omitting other clauses being irrelevant for the
present purposes), reads thus
“Section 2. Grounds for decree for dissolution of
marriage :- 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
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age of fifteen years, repudiated the marriage
before attaining the age of eighteen years;
Provided that the marriage has not been
consummated."
15. In case of a girl married during her minority, she is
entitled to be dissolution of marriage on her proving the
facts to the effect that she was given in marriage by her
father or other guardian and that the marriage took place
before she attained the age of 15 years and that she
repudiated the marriage before attaining the age of 18
years and that the marriage has not been consummated.
Such right of repudiation, though mentioned by the
parties and so also by the Family Court in issue No.1 as
Khyar-ul-bulugh, the option of puberty, needs a little
clarification. Puberty specifically means, the earliest age
at which a person is capable of begetting or bearing a
child. In fact, this option of puberty, Khyar-ul-bulugh,
as such was earlier not available outright when the
minor was contracted in marriage by the father or
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grand father and such contract was voidable at the
option of minor on attaining puberty only when the
father or grand father as acted fraudulently or
negligently or when the contract was to the manifest
disadvantage of the mnior, as explained by Mulla in
Article 272 of Principles of Mohamedan Law
(Nineteenth Edition 1990: Reprint 2003-page 234). The
option of puberty, Khyar-ul-bulugh that is, giving a
blanket right to the minor to repudiate the marriage or
attaining puberty was available only when the marriage
was contracted for a minor by any guardian other than
the father or the grand father, as explained by Mulla in
Article 274 (supra). However, by the Act of 1939, all
restriction on the option of puberty were abolished and
instead, under Section 2(vii) of the Act, a wife when
given in marriage by father or by any other guardian
has been given the right to the dissolution of her
marriage on proof of essential facts about the marriage
having not been consummated, having taken place before
her attaining the age of 18 years. Therefore, the aspects
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of puberty as such are not directly relevant while dealing
with this case under Section 2(vii) of the Act and it is
the age at the time of marriage and at the time of
repudiation, below 15 years and below 18 years
respectively, that is decisive to consider validity of the
option, of course with another decisive factor of non-
consummation of marriage. We may, also clarify that in
this view of the matter, the grounds sought to be raised
about the interference about puberty of the respondent
being wholly redundant and irrelevant would deserve no
further consideration.”
13. The Lahore High Court in the case of Mohd. Baksh V/s the
Crown through Khuda Baksh reported in AIR 1950 Lahore 133 has
held as under :
“A marriage arranged by the father or the grandfather
during a girl’s minority stands on the same footing, as
regards the option of puberty, as a marriage arranged by
any other guardian. The mere fact that S.2 of Act VIII
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(8) of 1939, gives a right to a girl in this position to
obtain a decree for dissolution of marriage does not
imply that apart from the provisions of S.2, she has no
right to exercise the option of puberty in such cases. A
Court’s order is not essential for conferring validity on
the exercise of the option of puberty. The Court’s order
would seem to be only necessary to invest it with the
judicial imprimatur in order to avoid any possible
disputes. In any case, a declaration can be given by the
Court itself even in the course of criminal proceedings
initiated under S. 494, Penal Code to the effect that the
first marriage stands dissolved by the option of puberty
having been exercised.”
14. On the other hand M.P. High Court in the case of
Piramohammad Kukaji V/s The State of Madhya Pradesh reported
in AIR 1960 MP 24 has held as under:
“Where a Muhammadan minor daughter’s marriage is
contracted by her father and not by any gruadian other
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than the father, she has no right of repudiating the
marriage on attaining puberty. Again the mere exercise
of the option of repudiation does not operate as a
dissolution of the marriage. The repudiation is required
to be confirmed by the Court. Even under the
Dissolution of Muslim Marriages Act, 1939, a decree of
the Court dissolving the marriage is necessary.
15. This Court in the case of Sahnaz Bano (Smt.) and ors. V/s
State of Rajasthan and another reported in 1999(2) RCD 980 (Raj.)
dealing with the matter under Section 482 Cr.P.C. observed about the
requirement of Section 2 of the Dissolution of Muslim Marriage Act,
1939. In para 5 and 8 of the judgment, this Court observed as under:
“. In substance his argument is that dissolution of
marriage by Qazi is valid. I am of the view that it is no
so. The Dissolution of Muslim Marriage Act, 1939
enumerates grounds in Sec. 2 on which a woman married
under Muslim Law shall be entitled to obtain a decree for
the dissolution of her marriage. The Dissolution of
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Muslim Marriage Act was passed when the ulema
themselves recommended that the federal Government
enact the Act of 1939 providing for nine grounds of
divorce to a muslim woman. It is an Act to consolidate
and clarify the provision of Muslim Law relating to suits
for dissolution of marriage by women under Muslim Law
and to remove doubts as to the effect of renunciation of
Islam by a married Muslim woman on her marriage tie.
A muslim woman has to obtain a decree of dissolution
under this Act in case she wants dissolution on anyone or
more grounds enumerated in Sec.2. Dissolution of a
muslim marriage can be done only by a competent civil
court on the grounds enumerated in Sec.2 of the Act
and not by Qazi appointed by Muslim Personal Law
Board. Even if a Qazi is appointed under the Kazi’s Act
1880, his appointment shall not be deemed to confer any
judicial or administrative powers on him.
8. In this view of the matter when petitioner Sahnaz
Bano was under a bonafide belief that court of Qazi
established by Muslim Personal Law Board was
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competent to grant her decree of dissolution of marriage,
her bonafide belief shall be looked into by the Trial
Court at the appropriate stage. But so far as order
taking cognizance is concerned, the same cannot be
quashed under Sec. 482 Cr.P.C.”
16. In view of the aforesaid legal position and in view of the
binding decision of the Division Bench of this Court as well as
decision of Lahore High Court, the view taken by M.P. High Court in
Piramohammad Kukaji’s case (supra) is not acceptable to this Court.
This Court’s decision in Sahnaz Bano’s case (supra) is also
distinguishable. It was a case under Section 482 Cr.P.C. and not about
effect of absence of a decree for dissolution under Section 2 of the
Act and the Court only held that dissolution could not be done by the
Quazi appointed by the Board.
It is, thus, found here that it is not necessary for Muslim lady
to obtain a decree for dissolution of her marriage after she exercises
her option of puberty (Khyar-ul-Bulugh) upon attaining the age of
puberty i.e. 15 years. If the factum of such revocation or exercise of
option of puberty is proved before the trial Court even by the oral
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evidence and the trial Court returns the findings of facts in her favour
in a suit filed by the husband, even then it should be sufficient
satisfaction of requirement of Section 2 of the Dissolution of Muslim
Marriages Act, 1939.
17. Section 275 of the Muslim Law quoted above also stipulates
only this that repudiation must be confirmed by the Court. In the
present case the findings of the learned trial Court that father of the
appellant – wife had proved such repudiation of marriage with the
plaintiff – husband is finding of fact and complies with the
requirement of Section 275 of Muslim Law as well as Section 2 of
the Dissolution of Muslim Marriages Act. Therefore, the said findings
of facts unless found to be perverse could not be reversed by the first
appellate court. Requirement to obtain independent decree by the
appellant – wife by approaching Civil Court is not the sine qua non of
law. Therefore, in the present case, the first appellate Court erred in
in reversing that finding merely on this ground and decreeing the suit
for restitution of conjugal rights in favour of the plaintiff husband.
More so, when admittedly, the appellant – wife had married another
man way back on 17.5.2000 and ever since is living with her husband
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at Kishangarh, therefore, she cannot be asked to walk out of her valid
marriage nor she can be forced to leave her peaceful matrimonial
home now and abide by the decree in favour of the plaintiff –
husband. After all we are dealing with human beings in the present
case and not a commodity or property. In the present case, the factum
of her marriage with other person on 17.5.2000 was admitted by the
plaintiff himself in the cross-examination, therefore, no decree of
restriction of conjugal rights could be granted in his favour.
18. Consequently this court is satisfied that the judgment of the
first appellate Court dated 6.9.2007 is not sustainable and the same
deserves to be set aside. Consequently, the present appeal of the
appellant – wife is allowed and setting aside the judgment of the first
appellate Court dated 6.9.2007, the judgment of the learned trial
Court dated 17.5.2006 rejecting the suit of the plaintiff – husband is
restored and it is held that the plaintiff – respondent Iqbal Mohd. Is
not entitled to decree for restitution of conjugal rights against the
appellant Smt. Khatiza Tul Qubra. All the four substantial questions
of law framed above are answered in favour of the appellant – wife
and against the plaintiff – husband. No order as to costs.
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(Dr.VINEET KOTHARI)J.
Ss/-
