A Muslim minor girl aged 13 years is given in marriage by her father. Salma is now 17 years old and she does not want to continue her marriage with Rahim. Is her marriage as a minor valid? What remedy is available to Salma under Muslim Law? Would the case be different if the marriage was consummated in 2002 or if both parties were Hindus? Decide with the help of case law.

Question: A Muslim minor girl aged 13 years is given in marriage by her father. Salma is now 17 years old and she does not want to continue her marriage with Rahim. Is her marriage as a minor valid? What remedy is available to Salma under Muslim Law? Would the case be different if the marriage was consummated in 2002 or if both parties were Hindus? Decide with the help of case law. [DJS 2006]

Find the question and answer of Muslim Law only on Legal Bites. [A Muslim minor girl aged 13 years is given in marriage by her father. Salma is now 17 years old and she does not want to continue her marriage with Rahim. Is her marriage as a minor valid? What remedy is available to Salma under Muslim Law? Would the case be different if the marriage was consummated in 2002 or if both parties were Hindus? Decide with the help of case law.]

Answer

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) reads thus,--

Grounds for decree for dissolution of marriage(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:

that she having been given in marriage by her father or other guardians before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years; Provided that the marriage has not been consummated.

By the Dissolution of Muslim Marriages Act, 1939, all restriction on the option of puberty in the case of a minor girl whose marriage has been arranged by a father or grandfather has been abolished, and as per Zubeda Begum v. Vazir Mahomed Rahimbux, AIR 1940, under section 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

The Hon'ble Punjab & Haryana High Court in Moh Samim v. State Of Haryana And Ors. on 26 September 2018 while explaining the aforesaid subject matter referred to the Text Book of Mohammedan Law by Aqil Ahmad which states that, "Puberty and majority" in the Muslim law are one and the same thing. The presumption is that when a person attains majority at the age of 15 years, it is the age of puberty and the marriage of a minor without the consent of the guardian is invalid unless it is ratified after the attainment of majority. A boy or girl, who has attained puberty, is at liberty to marry anyone he or she likes and the guardian has no right to interfere. Thus, in the present case if Salma after attaining puberty at the age of 17 years old does not want to continue her marriage with Rahim such marriage will be invalid and void as per the provisions of Muslim Law.

On the other hand, talking about the validity of a Hindu Minor Girl, the same Punjab & Haryana High Court later in 2021 upheld that a marriage contracted with a minor girl would be legally valid if the child upon turning 18 does not declare it void. The high court held that such a marriage is not void but a 'voidable' one. It would become valid if no steps are taken by the 'child' to declare the marriage void on attaining majority,

The proviso appended to section 2(vii) is quite interesting to be noted since it gives the minor right to dissolve her marriage upon attaining majority only if her marriage has not been consummated. So, the consummation of marriage becomes an essential factor in determining whether the right will be granted to a Muslim Minor girl to dissolve her marriage in consonance with Section 2 of the Dissolution of Muslim Marriages Act, 1939.

Thus, In the case of a girl married during her minority, she is entitled to the 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.

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