Ghulam Sakina v. Falak Sher Allah Bakhsh (1950)

A girl married off in infancy by her father needs a way out. This is the decision that explains the option of puberty — how the 1939 Act changed the old rule, when the option must be exercised, and what does and does not destroy it. Its central holding is the one that matters most in practice: cohabitation while the girl was still a minor does not extinguish her right to repudiate after puberty.

The plaintiff sued for dissolution of her marriage. She said she had never been given in marriage to the defendant, that if any marriage had taken place during her infancy she had never approved of it and had repudiated it, and (a plea not pressed) that the parties belonged to different sects.

The defendant said the marriage had been performed by her father when she was five, that it was an exchange marriage in lieu of the marriage of his own sister to her uncle, and that the parties had lived for some time as husband and wife and the marriage had been consummated.

The marriage was recorded in the register as performed by the father as guardian on 23 November 1932; the father had to admit it. According to her birth entry she was born on 13 November 1931 — about a year old at the marriage. The man who read the nikah said the girl was stated to be three or four months old and the bridegroom five or seven years old. A doctor who examined her estimated her age at about seventeen at the time of examination. The suit was filed on 29 August 1945 — on any view before she attained eighteen.

The evidence of consummation was unsatisfactory. The approximate time was not specified in the defendant's statement — words to that effect had been written and scored through — and when the plaintiff asked the court to direct him to disclose the exact time, he evaded the enquiry. Correspondence between the two fathers showed that during 1944 there were dissensions and the couple did not live together, and that the plaintiff's father was unwilling to send her. The defendant's case at trial was of a reconciliation about December 1944 after which she came to live with him, but there was much discrepancy about the second marriage party said to have gone to her house, and no good reason to disbelieve her evidence that she had lived throughout in her father's house.

The District Judge nonetheless held consummation proved, relying on two witnesses produced by the plaintiff who admitted it — in fact the defendant's brother and father — and on the strong presumption he drew from her refusal to submit to medical examination to show she was still a virgin.

The trial judge had decreed the suit; the District Judge reversed on consummation; she appealed.

The appeal was accepted, the District Judge's decree set aside and the trial judge's decree restored, with costs throughout. She had not lost her right to repudiate the marriage.

1. Set out the ground. A woman married under Muslim law is entitled to a decree for dissolution on the ground that, having been given in marriage by her father or other guardian before she attained the age of fifteen, she repudiated the marriage before attaining the age of eighteen, provided that the marriage has not been consummated.

1. Marriage is a contract requiring free consent. Marriage under Muslim law is in the nature of a contract and as such requires the free and unfettered consent of the parties. Normally the man and the woman conclude it between themselves; in the case of minors — those who have not attained puberty as recognised by that law — it may be entered into by their respective guardians.

1. The 1939 Act removed the father's privilege. Before the Act, a minor girl given in marriage by her father or father's father had no option to repudiate on attaining puberty. That has now been changed. The contract of the father or father's father stands on no higher footing than that of any other guardian, and the minor may repudiate or ratify after attaining puberty.

1. When the option arises. Puberty is presumed, in the absence of evidence, on completion of fifteen years. The option must therefore be exercised after that age, unless there is evidence that puberty was attained earlier — and the burden of proving that lies on the person pleading it.

1. Nothing done during minority destroys the right. Anything done by the minor during minority does not destroy a right that can accrue only after puberty. The cohabitation of a minor girl therefore does not put an end to the option to repudiate after puberty. The assent must come after puberty and not before, for the simple reason that a minor is incompetent to contract; nor should the consummation have taken place without her consent. Assent may be express or implied, by words or by conduct such as cohabitation with the husband. And it is essential that the girl be aware of the marriage before she can be expected to exercise the option.

1. A woman's refusal of medical examination proves nothing against her. The argument that her refusal to be examined by a lady doctor showed her case to be false had succeeded in an earlier High Court, but the Privy Council did not agree with those remarks. The refusal could not be taken as proof of consummation, which had to be proved as a fact on the whole evidence.

1. Apply it. At the time of the alleged consummation she was still below fifteen. Even assuming consummation to be a fact, it could not destroy her right to repudiate after fifteen. She had three years in which to proclaim the exercise of that right, and the institution of a suit is one mode of proclaiming it.

It opens the option of puberty. State the ground and its three limbs — given in marriage by a guardian before fifteen, repudiation before eighteen, and the marriage not consummated — then give the rules: the father's contract has no higher footing; puberty is presumed at fifteen; nothing done during minority destroys the option; and a suit is a mode of exercising it.

It disposes of the defence that consummation during the girl's minority extinguishes her option, and the evidentiary argument that a woman's refusal of a medical examination proves the case against her.

It does not decide anything about the other grounds under the 1939 Act, and it does not say that consummation after puberty with her assent leaves the option intact — on the contrary, assent given after puberty, including by cohabitation, will ratify the marriage. Read it with the case on the essentials of nikah, and note that a marriage of this kind would today also attract the statutory law prohibiting child marriage.