What do you understand by the option of puberty (khayar-ul-bulugh).

Question: What do you understand by the option of puberty (khayar-ul-bulugh). [DJS 1990]

Find the question and answer of Muslim Law only on Legal Bites. [What do you understand by the option of puberty (khayar-ul-bulugh).]

Answer

The facility of dissolving the marriage under Muslim law by a minor at the 'option of puberty' is known as "Khyar- ul- Bulugh". As per the essentials of a valid marriage under Muslim Law, minors are not legally entitled to enter into the contract of Marriage. This minority of age is determined by whether a boy or a girl has attained his/ her puberty. As puberty is a biological factor and is subjected to differ from individual to individual, a set standard of fifteen years is presumed to demarcate a minor attaining puberty which is subjected to change as per different schools of Muslim law.

'The Mohammedan law provides that it is mandatory to have the consent of both parties in order to have a 'sahih nikah'. Both spouses are entitled to terminate their marriage that was contracted before they reached puberty. This right is known as Khyar- ul- Bulugh.

But the position of a male minor and a female minor regarding the exercise of the right to dissolve their marriage at the option of puberty is different.

A male minor can repudiate his marriage that has been confirmed by his father or paternal grandfather, only after he reaches puberty without showing any actual cause of such dissolution which is expressed declaration, or payment of dower or cohabitation. Also, this male minor can repudiate the marriage if his guardian has acted either fraudulently, carelessly, negligently, wickedly, or for the disadvantage of that minor.

Whereas the female minor earlier before the enactment of the Dissolution of Muslim Marriage Act, 1939, had no option to repudiate a marriage even after she has attained puberty if it was decided by her father or grandfather. She was bound by both Shia and Sunni laws. Only repudiation was allowed in cases of marriages solemnized by guardians other than the father or paternal grandfather of that minor. Only in exceptional cases was the minor female allowed to dissolve the marriage solemnized by either her father or her Grandfather.

But even that dissolution had to be confirmed by the competent court of law. Presently, female minors can dissolve their marriage after they attain puberty if the marriage was contracted against their will, provided she has the knowledge of their marriage while exercising the right and have not entered into a consensual cohabitation with their spouse after attaining Puberty. Consummation with consent before the age of eighteen and after the age of fifteen gives ratification to such marriages and the right to the option of puberty is lost. Hence the old law of the option of puberty has been superseded by Section 2(7) of the Dissolution of Muslim Marriages Act, of 1939.

The right of Khyar- ul- Bulugh is available in case of child marriage in Muslim Law. There the consent of the guardian is necessary in order to solemnize the marriage of minors.

The Muslim personal laws grant permission for child marriage but in the current Indian scenario, even though the personal laws allow the marriage of minors, being an Indian citizen, is governed by uniform laws, and such marriage is prohibited under the Prohibition of Child Marriage Act, 2006. Under this said act, a Muslim girl married before attaining the age of eighteen years can seek termination of marriage at any time till she completes the age of twenty years if she is unable to seek any relief under the act of 1939. Such marriages continue to remain valid until repudiated by either party to the contract of marriage but the guardian so solemnizing the said marriage will be liable.

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