Ghulam Sakina v Falak Sher (Lahore High Court, 1950) — the option of puberty survives a child-marriage's "consummation"

Section 2(vii) of the Dissolution of Muslim Marriages Act, 1939 lets a wife given in marriage before fifteen repudiate before eighteen, "provided that the marriage has not been consummated". Ghulam Sakina decides what that proviso means when the "consummation" happened while she was still a child, and how the option is exercised.

The plaintiff sued for dissolution, saying she had never been married to the defendant, or, if a marriage had been performed in her infancy, that she had never approved it and had repudiated it. The defendant said her father had married her to him when she was five, as an exchange marriage for his own sister's marriage to her uncle, and that they had lived as husband and wife and consummated the marriage. The trial court found she had been married by her father in infancy in 1932 and that there was no credible proof of consummation, and decreed her suit; the District Judge found consummation proved and dismissed it. She appealed.

Whether the option of puberty was lost by an alleged consummation while the wife was under fifteen, and whether she had exercised it in time.

Mohd. Sharif J. held that the option can be exercised only by a person capable of consenting: the assent that bars the option may be express or implied — by words, or by conduct such as cohabitation — but it must be the assent of a girl who has attained puberty and who knows of the marriage; it is "also essential that a girl should be aware of the marriage before she could be expected to exercise her option". On the facts, at the time of the alleged consummation she was still below fifteen, and, assuming it 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 the right, and "the institution of a suit was one mode of proclaiming it". The appeal was accepted, the District Judge's decree set aside and the trial court's decree restored.

1. The consummation that bars the option under s. 2(vii) is one to which the wife, having attained puberty and knowing of the marriage, assented; intercourse while she was a child does not count.
2. The option must be exercised before eighteen, and filing a suit for dissolution is itself a proclamation of the repudiation.
3. Ignorance of the marriage postpones the running of the option.