Write a note on 'Option of Puberty'. Whether repudiation of marriage upon attaining the age of puberty should be confirmed by a civil court?

Question: Write a note on 'Option of Puberty'. Whether repudiation of marriage upon attaining the age of puberty should be confirmed by a civil court? [DJS 2005]

Find the question and answer of Muslim Law only on Legal Bites. [Write a note on 'Option of Puberty'. Whether repudiation of marriage upon attaining the age of puberty should be confirmed by a civil court?]

Answer

Marriage in Muslim law is a civil contract. Therefore competency of the parties to a marriage with regard to their age is one of the essential requirements. However, in the case of a minor, the consent for the marriage of a girl or a boy can be given by the respective guardian on their behalf. It however does not mean that contract of marriage entered into by the guardian of a minor on his or her behalf will finally be imposed on such minor throughout his or her life. Muslim law gives power to minors to repudiate or continue his or her marriage if he or she so like after attaining the age of majority. Such a right is called `the option of Puberty' (Khyarul Bulugh). Thus, the option of puberty is the right to a minor boy or girl whose marriage has been contracted through a guardian, to repudiate or confirm the marriage upon attaining puberty.

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.

As it was observed in Badal Aurat v. Queen-Empress, (1891) 19 Cal. 79, the woman may herself bring a suit for declaration that she has exercised her opinion and repudiated the marriage. Or she may plead the repudiation in defence of her husband's suit against her for restitution of conjugal rights, and the Court may in that suit declare that the marriage has been repudiated. No such declaration, however, can be made, if she has permitted sexual intercourse with her after the exercise of the option.

It is not clear that any order of the Court is necessary. The Calcutta High Court has held that no decree is required to confirm the repudiation, but that an order of the Judge is necessary to impress on the act a judicial imprimatur, and the Madhya Pradesh High Court has approved the Calcutta view.

In Ghulam Muhammad v. The Crown, (1933) 140 I.C. 617, the girl repudiated her marriage in an application to the Deputy Commissioner and then remarried. It was held that the marriage was not bigamous although the repudiation had not been confirmed by a Court.

In later decisions of the Lahore High Court (now in Pakistan) it has been held that the exercise of the option of puberty puts an end to the marriage without the aid of any Court. In Pakistan, it has been held that the Court does not dissolve the marriage by its own act but merely recognizes the termination of the marriage.

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