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Equivalent Citation: AIR1960Cal717, 64CWN756, 64CWN756, (1961)ILR 1Cal346

IN THE HIGH COURT OF CALCUTTA


A.F.A.D. No. 1345 of 1953
Decided On: 04.02.1960
Appellants: Shaib Ali Biswas
Vs.
Respondent: Jinnatan Nahar and Ors.
Hon'ble
Judges/Coram:
P.N. Mookerjee and Niyogi, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Tinkari Sarkar, Adv.
For Respondents/Defendant: Noni Coomar Chakravarty and Sk. Gholam Mohiuddin,
Advs.
Subject: Family
Catch Words
Mentioned IN
Acts/Rules/Orders:
Dissolution of Muslim Marriages Act, 1939 - Section 2; Mohammedan Law
Cases
Referred:
Muhammad Baksh v. The Crown, AIR 1950 Lah 133; Secy. of State v. Maharaja of
Bobbili, 46 Ind App 302, AIR 1919 PC 52; Powell v. Kempton Park Racecourse Co. Ltd.,
1899 AC 143; Badal Aurat v. Queen Empress, ILR 19 Cal 79
Disposition:
Appeal allowed
Case
Note:

Family restitution of conjugal rights Section 2 of Dissolution of Muslim


Marriages Act, 1939 and Mohammedan Law second appeal against Order
dismissing plaintiff-husbands suit for restitution of conjugal rights minor
girl was given in marriage by her father as guardian - repudiation of marriage
by exercising 'option of puberty' would be of no avail and would not
invalidate or dissolve marriage - option of puberty would be unavailing here
as against husband claim for restitution of conjugal rights as girl was given in
marriage by father as guardian Order passed by Court below liable to be set
aside appeal allowed.

JUDGMENT
P.N. Mookerjee, J.
1. This is the plaintiff-husband's appeal against an appellate decision, dismissing his
suit for restitution of conjugal rights and consequential injunction.
2. The trial court decreed the suit on certain conditions which were duly complied with
by the plaintiff. On appeal by the defendants, namely, the wife and her parents and
uncle, the said decree was set aside and the plaintiff's suit was dismissed. The present
second appeal is directed against this dismissal and seeks restoration of the trial
court's decree.

3. The relevant facts lie within a short compass and they may be conveniently stated
here as follows:

Admittedly, defendant No. 1 Jinnatan Nahar was married to the plaintiff Shaib Ali
Biswas in Magh 1356 B. S. There was a dispute between the parties as to the
wife's (Jinnatan Nahar's) age at the time of the said marriage, the plaintiff
alleging that she was then 15 years 3 months old and the defendant asserting
that she was then aged only just a little above 14 years or, more precisely, 14
years 2 months, as it transpired in the defence evidence. The learned Additional
District Judge, -- and so also the learned Munsif, -- accepted the defendants'
case on the point and found that the wife (Jinnatan Nahar) was below 15 years
at the time of her marriage and, further, -- and that was the common case of the
parties, -- that she was given in marriage by her father as guardian. The learned
Additional District Judge has also found as a fact that the wife repudiated the
marriage which, according to him, was not consummated, on her
attaining puberty seven months after the marriage, namely, in Bhadra 1357 B.
S., and, upon that finding, in particular, he has purported to dissolve the
marriage and dismiss the plaintiff's claim for restitution of conjugal rights.
4. The above findings of fact, made by the learned Additional District Judge are not, -as, indeed, they cannot be, -- disputed before us by the learned Advocate for the
appellant husband, but he contended that, even on those findings, the plaintiffs suit
cannot be dismissed. The argument is that, as, admittedly, in this case, the girl, a
minor at the time of her marriage, was given in marriage by her father as guardian,
the girl's (wife's) repudiation of the marriage by exercising what is usually known as
the "option of puberty" would be of no avail and would not invalidate or dissolve the
marriage; or, in other words, that the "option of puberty'' would be unavailing here
as against the husband's claim for restitution of conjugal rights as the girl was given in
marriage by the father as guardian.
5. There can be no question that, under the indigenous Mohammedan Law, the
"option of puberty" cannot be exercised validly by the girl (wife) to affect the
marriage tie, when she was given in marriage by the father or paternal grand father as
guardian, except, possibly, under very special circumstances which are, admittedly,
not present in this case. The option would, of course, be available and its exercise
would dissolve the marriage tie, -- at least when the matter comes up before the
Court even, possibly, as a defence on the part of the girl,-- in any other case, namely,
where the girl was given in marriage by a guardian other than the father or the
paternal grand-father. According to the learned Additional District Judge, this
distinction between the effect, validity or availability of repudiation of marriage by
exercising of the "option of puberty" between the two classes of cases aforesaid,
namely, cases of father and paternal grand-father and of other person, acting as
guardian in marriage, has been swept away by the new Act, the Dissolution of Muslim
Marriages Act, 1939, and the point, now before us, is whether his said view is correct.
6. In our opinion, the learned Additional District Judge has misread the new Act to give
it a greater effect in the above respect than what was intended by the legislature. The
Act, as its preamble, in its relevant part, shows, consolidates and clarifies "the
provisions of Muslim law relating to suits for dissolution of marriage 'by'-- and this
word 'by', underlined (here in ' ') by us, is, particularly, important,--women married
under Muslim law.." and the relevant Section 2 is also clear that the change, if any,
that was made thereby, or, the law that was enacted, declared or laid down therein,
was in regard to the wife's suit for dissolution of marriage and was never meant or
intended for any suit at the instance o the husband. It is true that, in the case of

Muhammad Baksh v. The Crown AIR 1950 Lah 133 an extreme view? of the law was
taken, which, with or without the above Act, would support the learned Additional
District Judge, -- but, with all respect to the learned Judge (Rahman J.) of the Lahore
High Court, we are unable to agree with his said view. That learned. Judge relied on
the preamble to hold that the new statute, the Dissolution of Muslim Marriages Act,
1939, was merely a consolidating and clarifying statute and, therefore, it only declared
the law, as it was, and that, accordingly, even before the Act, the right of repudiation
by exercise of the "option of puberty" was available always and in all cases, that is,
even where the girl's guardian, who gave her (the girl) in marriage, was her father or
paternal grand father. In our opinion, on both, the points, Rahaman J., appears to
have gone against established authorities.
7. It is to be remembered, in the first place, that it is well settled on authorities (vide
for example, the Privy Council case of Secy. of State v. Maharaja of Bobbili 46 Ind App
302 at p. 309: AIR 1919 PC 52 at p. 53) and the English House of Lords decision in the
case of Powell v. Kempton Park Racecourse Co. Ltd. 1899 AC 143 at p. 157. (Per Lord
Halsbury L. C.) ) that the preamble of a statute cannot control its enacting part and
would not be available for reference or exposition except in cases of ambiguity and, if
the enacting part, on its clear terms, goes beyond the preamble, effect must be given
to the enacting part, irrespective of the language of the preamble. It is also wellsettled on authorities (vide the case of Badal Aurat v. Queen Empress ILR 19 Cal
79 and Ss. 209 and 210 of Mulla's Mahomedan Law (12th Edn.) that the above
distinction, founded on the relationship of the guardian in marriage, in the matter of
the wife's repudiation of the marriage by exercising her "option of puberty" was a
part and parcel of and fully recognised by the indigenous Mohammedan Law, It seems
to us, therefore, that Section 2 of the new Act introduces and effects some change of
the relative law on the point. But, for our present purpose, that is wholly immaterial,
as, both on the wording of the section, and of the preamble, this new law or change of
law cannot apply except in cases of suits by the wife. This is clear from the section
itself and also from the preamble, which both, in their relevant parts, lay stress upon
and contemplate suits for dissolution of marriage by a Muslim wife and, accordingly,
we feel bound to hold that neither the learned Judge of the Lahore High Court in AIR
1950 Lah 133 supra, nor the learned Additional District Judge on the present occasion
proceeded on the right view of the law on the point. The decision of the learned
Additional District Judge cannot, therefore, be supported and it has to be set aside and
that of the learned Munsif restored.
8. We would, accordingly, allow this appeal, set aside the decree of the court of appeal
below and restore that of the learned Munsif.
9. Our present judgment, however, will not affect any right of the wife under the new
Act, as construed above by us. We make this clear so that her rights under the new
Act may remain unaffected and she may, if she so chooses, pursue them according to
law.
10. The parties in this case will bear their own costs throughout.
Niyogi, J.
11. I agree.