Wednesday, June 19, 2024

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MODEL ANSWER

OPTION OF PUBERTY

Discuss the concept of Option of Puberty [Khyar- ul- Bulugh].

According to the Indian legal system, a particular age has been prescribed to do certain activities which arises the mutual rights and obligations. The main purpose behind this is to ascertain that the party has acquired majority and he is capable to understand the consequences of his activities. According to Indian Majority Act, 1875, the age of attaining majority is 18 years and after attaining this age a person can bind himself or another person. But, if he does such activities before attaining the age of majority then according to our system, that act does not have any legal effect and it is considered null and void. According to this act, if two parties want to solemnize a valid marriage, they must be major.

But in case of marriage under Muslim law, this act is not applicable because the concept of marriage under Muslim religion is governed by the Muslim Personal law. According to the Muslim Personal law, if two Muslims want to solemnize a valid marriage, it is essential that they must have attained the age of puberty i.e. they must be capable of having sexual intercourse. In Muslim law, the age of attaining the puberty is 15 years. So, basically, the age of contracting marriage in Muslim religion is 15years.

According to Muslim law, if two Muslims want to solemnize a valid marriage, they must be major according to their personal law and of sound mind and capable of giving free consent. But if any of the party does not attain the age of puberty and before attaining this age, their marriage has been contracted by their guardians, that marriage is also considered valid marriage and no party to marriage has right to repudiate their marriage.

This is a general rule but according to Muslim law, if the marriage of a party has been contracted by their guardians and they contracted their marriage by fraud or negligently or it is against the minor i.e. it is not beneficial for the minor then according to Muslim law, after attaining the age of puberty the person has two rights and either he can ratify the marriage or he can exercise his option of puberty and can repudiate the marriage. So, basically option of puberty means if marriage of a person has been contracted before attaining the age of puberty then after attaining the puberty he can repudiate the marriage by exercising this right.

This is an old law and according to this law, a minor can repudiate the marriage after attaining the age of puberty only if his marriage has been contracted by his guardian and his guardian acted fraudulently or negligently or the marriage is against the basic interest of minor. But after the enactment of The Dissolution of Muslim Marriage Act, 1939, the concept has been gradually changed and according to this act, if a marriage of a female minor has been contracted by her guardian before attaining the age of puberty then she has right to repudiate the marriage after attaining the age of puberty and she has no need to prove the special circumstances.

To repudiate the marriage, she has to file the petition before the court and to get the decree she has to prove that her marriage was contracted before attaining the age of puberty and after attaining the puberty she has repudiated the marriage and she has repudiated the marriage before attaining the age of 18 years and moreover marriage has not been consummated.

But on the other hand, as regards the minor male, the old law still applies and he can repudiate the marriage at any time. The restriction of 18 years is not applicable in case of minor male person. He can repudiate the marriage even after attaining the age of 18 years but it is essential that he has not ratified the marriage either by giving dower or by consummating the marriage.

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