ALTAF HUSSAIN Versus LAI KHATOON ALIAS MANZURAN KHATUN

This writ petition has arisen out of a suit brought by respondent No.l, Mst. Lal Khatun alias Manzuran Khatun, hereinafter referred to as the respondent, for dissolution of her marriage with the petitioner, Altaf Hussain, on the ground of the option of puberty. It was alleged by her that she was married to the petitioner during her minority but on attaining puberty she repudiated her marriage with him. The suit was resisted by the petitioner inter alia on the ground that she was about 25 years old at the time of the filing of the suit and, therefore, the option of puberty was not available to her. This plea did not find favour with the Judge, Family Court, who was seized of the suit, and he decreed the respondent's suit holding that the option of puberty was rightly exercised by her. Judgment and decree passed by the learned Family Court has been challenged by the petitioner by means of the Constitutional petition in hand.

2. Relying on clause (vii) of section 2 of the Dissolution of Muslim Marriages Act, 1939, it was contended by learned counsel for the petitioner that the marriage could be repudiated by the respondent before attaining the age of 18 years but as she was more than 18 years, but at the time when the marriage was allegedly repudiated by her as well as at the time of bringing the suit, her marriage could not be dissolved on the ground of option of puberty. On the other hand, it was submitted by learned counsel for the respondent that she was less than 18 years on both the occasions and thus the option of puberty was available to her.

3. Fate of the suit brought by the respondent, therefore, hinges on the question relating to her age at the time of exercise of the right of option of puberty by her. She produced three witnesses in support of her version in respect of her age at the relevant time and an equal number of witnesses were examined by the petitioner in rebuttal. Evidence produced by the petitioner also derives support from the statement of a witness‑ produced by the respondent, namely, Muhammad Siddique (P.W.2). In the circumstances, the petitioner's evidence deserves more credence than that of the respondent. This aspect of the matter was, however, overlooked by the learned Family Court while deciding the question of age. Learned Family Court had no authority to ignore the statement of Muhammad Siddique, which is of great consequence. In this view of the matter, his finding as well as the judgment and decree based thereon are without lawful authority and call for interference by this Court in exercise of its Constitutional jurisdiction.

4. Resultantly, I accept this petition, set aside the judgment and decree passed by the learned Family Court and dismissed the respondent's suit, leaving the parties to bear their own costs.

H.B.T./A‑323/L Petition accepted.