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Nizamuddin v. Huseni And Others
Factual and Procedural Background
The appellant filed a suit for restitution of conjugal rights which was decreed in his favour by the trial Judge. However, the lower appellate Court dismissed the suit on the grounds that the marriage was invalid because it was performed when the wife was only five years old, the marriage was never consummated, and the wife repudiated the marriage upon attaining puberty. The defendants included the wife, her father, mother, and two uncles. The appeal challenges this dismissal and raises questions about the validity of the marriage and the jurisdiction of the trial court.
Legal Issues Presented
- Whether the appellant, a resident of Pakistan, could maintain the suit in an Indian court under Section 83 of the Code of Civil Procedure.
- Whether the suit for restitution of conjugal rights could be instituted in the Court at Gwalior, given the residence of the parties and the place of marriage, under Section 20 of the Code of Civil Procedure.
- Whether the marriage contracted when the wife was a minor and repudiated upon attaining puberty was valid for the purposes of restitution of conjugal rights.
- Whether repudiation of marriage by the wife is effective when the marriage was contracted by the mother rather than the father, given the doctrine of Khyarul Bulugh (option of puberty).
- Whether a specific issue should be framed to determine who contracted the marriage—the father or the mother—and the effect of this on the validity of the marriage and the suit.
Arguments of the Parties
Respondents' Arguments
- The suit could not be maintained as the plaintiff was a resident of Pakistan and had come to India casually, relying on Nusserwarji Pestonji v. Eleonora Wadia.
- The suit could not be instituted in the Court at Gwalior; it should be filed only where the husband or wife resides, based on Section 20(a) of the Code of Civil Procedure.
- The marriage was invalid because the wife was only five years old at the time, the marriage was never consummated, and repudiation occurred after attaining puberty.
Appellant's Arguments
- The appellant contended that the suit was maintainable despite his Pakistani residence, under Section 83 of the Code of Civil Procedure, as Pakistan is not an enemy state.
- The Court at Gwalior was competent to try the suit because the marriage took place there, and under Section 20(c), a suit arising out of a contract can be instituted where the contract was entered into.
- The validity of the marriage depends on whether it was contracted by the father or the mother, which affects the applicability of repudiation rights.
- A specific issue should be framed to determine who contracted the marriage to properly decide the case.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nusserwarji Pestonji v. Eleonora Wadia, AIR 1914 Bom 211(2) | Suit maintainability of an alien plaintiff | Rejected as Pakistan resident is not an alien enemy under Section 83 of CPC |
| Muhammad Sharif v. Khuda Bakhsh, AIR 1936 Lah 683 | Doctrine of Khyarul Bulugh (option of puberty) for repudiation of marriage contracted by guardian other than father | Supported the principle that repudiation is valid if marriage contracted by mother |
| Abdul Karim v. Aminabai, AIR 1935 Bom 308 | Doctrine of repudiation on attaining puberty | Reinforced repudiation rights of minor when marriage contracted by guardian other than father |
| Joygun Nessa Bibi v. Mahomed Ali Biswas, AIR 1938 Cal 71 | Option of puberty and repudiation | Supported repudiation doctrine applied in the case |
| Ahmad Hussain v. Mt. Amir Bano, AIR 1940 All 63 | Repudiation rights of minor | Applied to affirm repudiation validity |
| Batoolan v. Zahoor Shah, AIR 1953 Madh B 30 | Repudiation effective in suit for restitution of conjugal rights | Agreed with view that repudiation can be raised as defence in such suits |
Court's Reasoning and Analysis
The Court first rejected the objection regarding the appellant's Pakistani residency, holding that under Section 83 of the Code of Civil Procedure, a resident of Pakistan is not an alien enemy and thus entitled to sue in Indian courts. Regarding jurisdiction, the Court held that the suit for restitution of conjugal rights is a contractual enforcement suit and can be instituted where the contract (marriage) was entered into, here at Gwalior, under Section 20(c) of the Code of Civil Procedure.
On the merits, the Court acknowledged the undisputed facts that the wife was five years old at marriage, the marriage was never consummated, and repudiation occurred after puberty. The Court applied settled law recognizing the doctrine of Khyarul Bulugh, which allows repudiation if a marriage contracted by a guardian other than the father. Since both parents were alive at the time, the validity of repudiation hinges on whether the father or mother contracted the marriage.
The Court noted that the wife alleged in her written statement that her mother contracted the marriage, but no specific issue was framed on this critical question. The omnibus issue regarding the legality of the marriage was insufficient to focus on this point. Therefore, the Court found it necessary to remit the case to the trial Judge to frame a specific issue on who contracted the marriage and decide the case afresh solely on this question, disallowing any other new issues or evidence.
Holding and Implications
The appeal is allowed, and the judgments and decrees of both the trial and appellate courts are set aside. The case is remanded to the trial Judge to frame a specific issue on whether the marriage was contracted by the wife’s father or mother and to decide the case afresh based on this issue alone. Costs incurred so far shall be costs in the cause.
This decision directly affects the parties by requiring a fresh trial focused on the key factual issue of who contracted the marriage. The opinion does not establish any new legal precedent beyond clarifying procedural requirements for issue framing in such cases.
1. The appellant's suit for restitution of conjugal rights was decreed in his favour by the trial Judge, but it has been dismissed by the lower appellate Court on the ground that the marriage was not valid, that it was performed when the wife was only five years of age, that it was never consummated and that on attaining puberty the wife repudiated it. The defendants in the suit were Mst. Huseni the wife (defendant No. 1), her father Tunda (defendant No. 2). Mst. Shubratan mother (defendant No. 3) and her two uncles Subba (defendant No. 4) and Hallu (defendant No. 5).
2. The learned counsel for the respondent First of all urges that the suit could not be maintained because the plaintiff was a resident of Pakistan and he had come here just casually. Reliance is placed on Nusserwarji Pestonji v. Eleonora Wadia, AIR 1914 Bom 211(2). In my opinion, this contention cannot be accepted in view of Section 83 of the Code of Civil procedure, which enables an alien friend to institute suit in any Court as if he is a citizen of India. A resident of Pakistan cannot be said to be an alien enemy within the meaning of Section 83 as is clear from the explanation to that section. Pakistan government is not at war with India.
3. The next contention of the learned counsel for the respondents is that the suit could not be instituted in a Court at Gwalior. It is urged that a suit for restitution of conjugal rights can be instituted only at the place where the husband resides because it is there that the wife has to perform her marital obligations or at the place where the wife resides because of Section 20(a) of the Code of Civil Procedure. It is common ground that the marriage between the plaintiff and Mst. Huseni respondent No. 1 took place at Lashkar. Now a Mohammedan marriage is not a sacrament, but a civil contract and a suit for restitution of conjugal rights is truly speaking a suit for enforcement of certain obligations arising out of that contract. That being so, such a suit can be instituted by virtue of Section 20(c) at any place where the cause of action wholly or partly arose. This is settled law that in a case arising out of a contract, a suit can be instituted at the place where the contract was entered into. The Court at Gwalior was, therefore, competent to try this suit.
4. This brings me to the merits of the case. There is no "doubt that (1) Mst. Huseni was five years of age at the time of her marriage, (2) She never went to her husband Nizamuddin, that is the marriage was never consummated. (3) when a panchayat assembled she repudiated the marriage and at that time she had attained puberty; and (4) in her written statement also she repudiated the marriage.
5. Then again the law is settled that when a marriage is contracted for a minor by any guardian other than the father or father's father, the minor enjoys the option to repudiate the marriage on attaining puberty and this is technically called Khyarul bulugh (option of puberty) (See Muhammad Sharif v. Khuda Bakhsh, AIR 1936 Lah 683; Abdul Karim v. Aminabai, AIR 1935 Bom 308; Joygun Nessa Bibi v. Mahomed Ali Biswas, AIR 1938 Cal 71 and Ahmad Hussain v. Mt. Amir Bano, AIR 1940 All 63).
6. It is an admitted fact that at the time of her marriage her father and mother were both alive. If Mst. Huseni was given in marriage by the father, there can be no repudiation and this suit could not be resisted on that ground. She has not instituted any suit for dissolution of the marriage under the Dissolution of Muslim Marriages Act, 1939. If, however, it was her mother who had contracted her marriage with the plaintiff, she can successfully resist this suit having once repudiated the marriage. It has been held by my learned brother Khan J. as a Judge of the Madhya Bharat High Court that repudiation can effectively be made even in a suit for restitution of conjugal rights (see Batoolan v. Zahoor Shah AIR 1953 Madh B 30). With respect I agree with that view.
7. The whole case, therefore, turns on the Question whether Mst. Huseni was contracted in marriage with Nizamuddin by Tunda, her father, or by Mst. Shubratan, her mother. In view of the fact that in her written statement Huseni specifically alleged that it was her mother who had contracted her in marriage it was necessary that a specific issue on that question should have been framed. It seems to mo that the significance of this question was not appreciated by the learned trial Judge. It is true that there was an omnibus issue No. 5. Whether the marriage of the plaintiff with the defendant was illegal? In my opinion, such an issue could not have focussed the attention of the parties on the crucial question, and in the interests of justice I think that the case must go back to the trial Judge for framing this issue and deciding the case afresh in the light of the above observations. I should, however, make it clear that no other issue shall be framed, nor shall the parties be allowed to lead evidence on any other question except this one.
8. The appeal is, therefore, allowed, the judgments and decrees of both the Courts below are set aside and the case is sent back to the trial Judge for framing a specific issue whether Mst. Huseni was contracted in marriage by her mother or by her father and then to decide the case afresh. Costs heretofore incurred shall be costs in the cause.
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