Nearest to the concept of annulment of marriage is the concept of repudiation of marriage under Muslim law. However, the concept of repudiation of marriage under Muslim law is different from the concept of annulment of marriage in many respects and resemblance between the two is rather superficial.
Image Source: vanderbilt.edu
As a principle of law, power of the father to impose the status of marriage on his minor children is unlimited and absolute in Muslim law. But Muslim law-givers have provided some reins to this unbridled paternal power.
ADVERTISEMENTS:
This is provided in the minor’s right of repudiation of marriage. A person, who has been married during his minority by the father, or a guardian in marriage, has the right of repudiation of marriage on attaining majority.
Muslim law deals with this matter under two heads: (a) when the child is given in marriage by the father or grandfather, (b) when the child is given in marriage by a guardian in marriage other than the father or the grandfather. The Muslim law-givers make some distinction between the woman’s power of repudiation and the man’s power of repudiation.
When the child is given in marriage by father or grand-father Right of repudiation:
The Muslim jurists have not been unanimous whether a child who is married by its father or grand-father can repudiate the marriage on attaining puberty. The consensus of opinion seems to be that the child can do so only in certain circumstances. According to the Rudd-ul-Muhtar. “If the marriage is in all aspects suitable, the bride and bridegroom are equally matched in rank, position and age, and there is no deformity or evil habits on one side or the other, the dower is not unreasonably low, in such a case the minor, on attaining puberty, has no option; for it is presumed that all these circumstances combining the love which a father or grandfather bears to his children or grand-children, must have actuated him in making his choice, which ought not to be set aside at the mere caprice of the young people after they attain the age of puberty”.
It seems that his prohibition has been absolute in the case of female children, and thus a girl who was given in marriage by her father or grandfather could not repudiate the marriage in any circumstances.
ADVERTISEMENTS:
It appears to be the established position that if the father or the father’s father has acted carelessly, wickedly, fraudulently or negligently, or where the minor is married to a lunatic, impotent person, or to a person of unsound mind, or to an idiot, or to a person who is not equal in rank, or the marriage is to the manifest disadvantage of the child, the child has the right of repudiating the marriage. Ameer Ali takes the view that in these cases the marriage is subject to the ratification of the minor, which may be express or implied.
Others hold the view that such a marriage is voidable at the option of the minor, if the minor on attaining majority does not repudiate it, the marriage will be a perfectly valid marriage. The better view seems to be that the right of repudiation may be exercised on attaining majority, unless it has been lost by express or implied ratification.
The courts in India have allowed the right of repudiation to girls even when they have been married by the father or grandfather. In Aiz Bano v. Muhammad, the Allahabad High Court said that a Shia girl given in marriage by her father to a Sunni male has an option of repudiation of marriage, unless she has ratified it by consummation or otherwise; to hold otherwise, the court added, would be contrary to all rules of equity and justice.
After coming into force of the Dissolution of Muslim Marriage Act, 1939, a Muslim female who has been given in marriage before she attained the age of puberty, has been given a statutory right of getting a decree of divorce on that basis.
Option of Puberty:
ADVERTISEMENTS:
A minor who is given in marriage by a person other than her father or grandfather, has a right to repudiate the marriage on attaining majority without showing any case. This absolute right of the minor of repudiating marriage on attaining puberty is technically called “option of puberty”. The Shias go a step further and hold the view that in such a case marriage is wholly ineffective unless ratified by the minor or attaining puberty. The option of puberty is subject to the following limitations:
(a) The option should be exercised immediately on attaining puberty. This continues to be the position in respect of Muslim males, but in respect of Muslim females, the Dissolution of Muslim Marriage Act, 1939 lays down that the option may be exercised before the girl attained the age of eighteen.
(b) The marriage should not have been consummated. The court by judicial legislation has mitigated some of the hardships inherent in the rigid application of these limitations.
The courts have taken the view that the minor wife does not lose her right of repudiation of marriage if she does not know that she has the right, and, therefore, she can exercise the right after she has come to know of it.
Further, she can exercise the right within a reasonable time after she became aware of it. This view is in consonance with Imam Muhammad, though it is contrary to the views propounded by Abu Hanifa and Abu Yusuf. Ameer Ali also favours this view. The courts have gone to the extent that delay in the exercise of the option may be condoned even on account of non-acquiescence.
The same liberal interpretation has been given to the second limitation. The courts have held that the consummation must have taken place with the consent of the wife.
Under the Dissolution of Muslim Act. 1939. a Muslim female can file a suit for dissolution of her marriage on the ground that she was given in marriage before she attained the age of fifteen (the Act does not talk of puberty) by the father, grand-father or any other guardian (the distinction between the father and grand-father, on the one side, and the other guardians, on the other, has been done away with). The limitations are: the option must be exercised before the girl attained the age of eighteen years and marriage should not have been consummated.
The courts have again interpreted this provision liberally. In Gulam Sakins v. Falak Sher, where the marriage of a girl was solemnized and consummated before she attained the age of fifteen, the court held that this did not amount to consummation within the meaning of the Act. In Mustafa v. Khurshida? The girl was married at the age of 7 years, fact was proved by birth certificate and marriage was not consummated. She lawfully exercised option of puberty. She was entitled to divorce.
There has been some conflict of judicial opinion whether a decree of the court is necessaiy to confirm the exercise of the option of puberty. In an early case, it was held that a woman who solemnized a second marriage alter exercising the option was not guilty of bigamy even though the option was not confirmed by a decree of the court.
Again, in a case, decided before the Dissolution of Muslim Marriage Act, the court held that an assertion by the wife that she had exercised the option of puberty amounted to repudiation of marriage by her. In a case decided after the Dissolution of Muslim Marriage Act, the Madhya Pradesh High Court held that repudiation of marriage in exercise of the option of puberty must be confirmed in the court.
However, in Khatija Tul Qubra v. Iqbal Mohd., it has been held that wife was married as minor she repudiated it on attaining puberty and remarried another person. Factum of revocation was proved.
Second marriage was held valid. This judicial conflict, in fact, reflects the conflict among the authorities on Muslim law. The Rudd-ul-Muhtar takes the view that no confirmation by the kazi is necessary, while the Hedaya holds confirmation by the kazi is necessary.
Again, on the question whether a substantive suit is necessary by the wife under the Dissolution of Muslim Marriage Act, there is a conflict of opinion. The Calcutta High Court took the view that such a suit was necessary, while the Madhya Pradesh High Court opined that the wife could exercise the option of puberty even in a suit for restitution filed by the husband.