GHULAM SAKINA V.

FALAK
SHER ALLAH BAKSH
AIR 1950 Lah. 45 decided on,26 April 1949, at high court of Lahore
By Mohammad Amin khan
Mohammad Sharif
 FACTS

 It was alleged that she was never given in marriage to the defendant as he proclaimed it to be, that if
any such marriage be held to have taken place during her infancy she never approved of it and had
repudiated it and that she was a Sunni girl and the defendant was a Shia and the marriage between
them was not good.
 The defendant maintained that the marriage was performed by her father when she was five years’
old, that his marriage was an exchange marriage in lieu of the marriage of his own sister with the uncle
of the plaintiff and that the parties had lived for some time as husband and wife and the marriage
had been consummated.
 It was denied that the defendant was a Shia; both the parties belonged to the Sunni sect. The trial
Judge found that the plaintiff was married by her father during her infancy in 1932 and that there was
no credible proof of the consummation of marriage. The issue as to the parties belonging to different
sects was not pressed. On these finding the plaintiff was awarded a decree. On appeal by the
defendant, the learned District Judge, Mianwali, came to a contrary conclusion as to the
consummation of marriage and for that reason accepted the appeal. The plaintiff has now come up
in second appeal.
 OPTION OF PUBERTY

Before the Act (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. ‘
in present she is entitled to dissolution of marriage if she proves the following act-
 That she was given in marriage by her father or other guardian.
 That the marriage took place before she attained the age of 15.
 That she repudiated the marriage before she attained the age of 18.
 That the marriage has not been consummated, provided it was not (i) before attainment of her age of
puberty, or (ii) against her consent.
The marriage does not dissolve merely by the exercise of option of puberty. Confirmation by court is
necessary for dissolution of marriage. However, only a formal approval by the court is sufficient; decree is
not necessary.
 ISSUE

Q1-The sole question for decision in this case is whether the plaintiff had
repudiated her marriage in accordance with the requirements of S. 2,
Dissolution of Muslim Marriages Act, 1939?
 PRINCIPLE INVOLVED

The relevant portion is reproduced below:

 Section 2. 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 15 years, repudiated the
marriage before attaining the age of 18 years provided that the
marriage has not been consummated.
 JUDGEMENT

 In the present case, the plaintiff at the time of the alleged consummation,
was still below 15 years and assuming consummation to be a fact, it could
not destroy her right to repudiate the marriage after she had attained the
age of 15 .
 She had three years within which to proclaim the exercise of that right and
the institution of a suit was one mode of proclaiming it. The plaintiff had not
therefore lost her right to repudiate the marriage given to her by law.
 For the reasons given above I would accept this appeal, set aside the
judgment and decree of the learned District Judge and restore that of the
trial Judge.