Ghulam Sakina vs. Falak Sher Allah Baksh Case is an important case that clarifies the rights of a girl under Muslim Law to protect her from any kind of exploitation or anything that manifests disadvantage on her part. However, it has been held by the Madhya Pradesh High Court in the case of Pir Mohammed vs. State of MP that repudiation of marriage in the application of the option of puberty must be confirmed in the court.
FACTS OF GHULAM SAKINA vs. ALLAH BAKSH:
- The plaintiff sued for the dissolution of her marriage.
- It was alleged that she never gave consent for her marriage to the defendant if any such marriage has held to be taken place in her infancy hardly when she was a year old and had never approved it and repudiated it as she was a Sunni girl and he was Shia and the marriage between them was never good.
- The defendant said that her father did the marriage when she was five years old and this marriage was in exchange for marriage instead with his own sister and uncle of the plaintiff.
- He further contended that they lived together, and it consummated the marriage.
- The trial judge found the plaintiff was married during her infancy but there was no proof of the consummation.
- Therefore, the plaintiff was awarded a decree.
- On appeal by the defendant, the District Court decided that it consummated the marriage.
- Therefore, the appeal was accepted.
- The wife made a second appeal before the High Court.
- Whether the plaintiff had rejected her marriage under Sec 2 of the Dissolution of Muslim Marriage Act 1939 which says-
“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-
(viii) That she having been given in marriage by her father or another guardian before she attained the age of 15 years repudiated the marriage before attaining the age of 18 years provided that the marriage has not been consummated.”
The Hon’ble Judge present to hear this case was Justice Mohd Sharif. He was of the opinion that,
- The suit for dissolution of marriage was instituted when the plaintiff was 14 years old and the plaintiff was married by her father long before 15 years old. Hence in this case it is not disputed. In any case, it was filed before she attained 18 years of age.
- The evidence as to consummation was very unsatisfactory. The refusal of the plaintiff to take a medical examination cannot be treated as evidence of consummation.
- The plaintiff at the time of the alleged consummation was still below 15 years and assuming consummation to be a fact, it could not destroy her right to reject the marriage after she had reached the age of 15. She had three years within which to assert the exercise of that right and the establishment of a suit was one mode of proclaiming it.
The court restoring that of trial judge held the plaintiff had not lost her right to repudiate the marriage. Therefore, the plea was admitted.
Prior to the dissolution of the Muslim Marriage Act 1939, a minor’s marriage contracted by the grandfather or the father could not be renounced unless the father or grandfather acted wickedly or negligently or the marriage exhibits a disadvantage to the minor.
These conditions of the Act were removed and a minor Muslim girl has an option to renounce the marriage contracted by her father or grandfather provided the marriage took place before she was 15 years old.
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