CHANAKYA NATIONAL LAW UNIVERSITY

ANALYSING THE CONCEPT OF KHYAR-ULBULGH

Final research proportion submitted in partial fulfilment of the course FAMILY LAW
Semester 3rd during the academic year 2017-18.

Submitted by:-

Anuj Kumar

Roll no. 1611

2nd year, Section B

Submitted to:-

DR. SHAIWAL SATYARTHI

OCTOBER 2017

CHANAKYA NATIONAL LAW UNIVERSTY

NAYAYNAGAR, MITHAPUR PATNA, 800001

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ACKNOWLEDGEMENT

Firstly, I would like to thank my teacher, DR. SHAIWAL SATYARTHI for having provided me
with the inspiration and guidance for this project. Without her help this project wouldnt have
been possible. I would also wish to thank our Vice-Chancellor who constantly exhorts us to
deliver our best at every level. I would also express my gratitude towards my seniors who were
a source of constant support and inspiration. Lastly, yet equally importantly, I am grateful to my
family and my friends for supporting me all the way through the making of this project.

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TABLE OF CONTENTS

ACKNOWLEDGEMENT .................................................................................... 1
TABLE OF CONTENTS ...................................................................................... 3
INTRODUCTION ................................................................................................ 4
RESEARCH METHODOLOGY.......................................................................... 5
MARRIAGE UNDER MUSLIM LAW ............................................................... 5
KHYAR-UL-BULGH........................................................................................... 7
PREVALENCE OF THE OPTION OF PUBERTY IN THE INDIAN
CONTEXT ............................................................................................................ 9
ANALYSIS OF THE OPTION OF PUBERTY .............................................. 10
CONCLUSION ................................................................................................... 11
BIBLIOGRAPHY ............................................................................................... 12

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INTRODUCTION

Hedaya says, "marriage implies a particular contract used for the purpose of legalising
children."

According to the Muhammadan law, marriage (nikah) is a civil contract, the object whereof is
to legalise sexual intercourse and the procreation of children. This statement is, however,
sometimes so overstressed, that the real nature of marriage is obscured, and it is forgotten that
it has other important aspects as well, both social and religious.

One would do well to remember that marriage is recognised in Islam as the basis of society. It
is no doubt a contract, but it is also a sacred covenant. The Prophet once delivered a sermon on
marriage, and to this day, it is repeated (with a few variations) at Muslim marriages, as it
contains a lot of practical advice and many noble sentiments.

As observed by Sir Shah Muhammad Sulaiman, C.J. in Anis Begam v. Muhammad Istafa1:
It may not be out of place to mention here that Maulvi Samiullah collected some authorities
showing that a marriage is not regarded as a mere civil contract, but as a religious sacrament.

To constitute a valid marriage, no formality is required; nor is any religious ceremony

necessary. The usual conditions necessary to constitute a valid contract are also necessary to
constitute a contract of marriage. Thus, the parties must be of sound mind and they must not
be within prohibited degrees of relationship.

Lunatics and minors who have not attained the age of puberty (i.e., completion of the 15th year)
may be validly contracted in marriage by their respective guardians. In the case of a boy or girl
who has not attained the age of puberty, the marriage is not valid unless the legal guardian has
consented to it.

1
(1933) 55 All.743

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RESEARCH METHODOLOGY

In developing this research paper, analytical method has been used and references from text
have been taken to strengthen the analysis. The doctrinal mode of research has been followed.
Research has also been done in the library to get the required data. Various sources of data
have been used- both primary and secondary. Primary data mainly includes Judgments and
secondary data being various books, journals, newspaper etc. The law on this point has been
mainly analysed and explained through the prism of case laws and with the help of personal
laws.

MARRIAGE UNDER MUSLIM LAW

Justice Mahmood has defined the Muslim marriage as "a purely civil contract."

The object of a Muslim marriage is to legalise children and to a large extent to regulate and
validate the sexual relations. Apart from being a civil contract, it is also a social and religious
institution.

For a valid Islamic marriage, the following conditions must be satisfied:

1. The parties must have the capacity to marry
2. There must be a clear proposal and acceptance.
3. Free consent
4. No Legal disability
1. Capacity to marry

Every Muslim of sound mind who has attained puberty, may enter into a contract of
marriage. Puberty means the age at which a person becomes adult (capable of performing
sexual intercourse and procreation of children). A person is presumed to have attained the
age of puberty on the completion of 15 years. So the boy and girl who has attained puberty
can validly contract a marriage .A marriage under Muslim law is perfectly valid if the parties
have attained puberty and satisfied all other conditions specified by the law.

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According to the child marriage restraint act 1929, a marriage of male below 21years of age
and female below 18 years of age is child marriage. The act prohibits such marriage. The
Act prescribes that for a valid marriage the minimum age for male is 21 and female is 18.
The parties who are violating the provisions of Child Marriage Restraint Act are liable to be
punished. Thus if two Muslims marry before attaining the age prescribed under the child
marriage restraint Act they are liable to be punished. However the marriage between two
Muslims who have attained puberty is valid though they have violated the provisions of
Child Marriage Restraint Act.

2. Proposal and Acceptance

Under the Muslim law for the validity of a marriage there must be a proposal and acceptance
at the same meeting. The proposal and acceptance must both be expressed at one meeting; a
proposal made at one meeting and acceptance made at another meeting does not make a
valid Muslim marriage. Neither writing nor any religious ceremony is essential.

Under the Sunni law, the proposal and acceptance must be made in the presence of two male
Muslims who are of sound mind and have attained puberty or one male and two female
witnesses who are sane, adult and Muslim. Absence of witnesses does not render marriage
void but make it void able.

Under the Shia law witnesses are not necessary at the time of marriage.
The proposal and acceptance need not be made in writing. Where the offer and acceptance
are reduced into writing,the document is called Nikah nama or Kabin-nama.

The proposal made by or on behalf of one of the parties to the marriage, and an acceptance
of the proposal by or on behalf of female witnesses, who must be sane and adult Muslim.

3. Free consent

Free consent of the parties is absolutely necessary for a valid marriage .If there is no free
consent a Muslim marriage is void. Under the Muslim Law, a marriage of a Mohammedan
who is of sound mind and has attained puberty is void; if it is brought about without his
consent The marriage of a girl who has attained puberty and is of sound mind would be void

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if her consent is not obtained. When the consent to the marriage has been obtained by force
or fraud, the marriage will be invalid, unless it is ratified. When a marriage was
consummated against the will of the women, the marriage is void. The person who has been
defrauded can repudiate the marriage.

Lunatics and minors who has not attained puberty may be validly contracted by their
respective guardians. A minor is incompetent to give valid consent. The right to contract a
minor in marriage belongs successively to the following persons:

i) Father
ii) Paternal Grand Father
iii) Brother and other male relations on the fathers side
iv) Mother
v) The maternal uncle or aunt and other maternal relations.

KHYAR-UL-BULGH
According to the Mohummedan law either a boy or a girl who has not attained puberty, is not
competent to enter into a contract of marriage. Puberty is presumed in the absence of evidence,
on completion of the age of fifteen years. But the Mohummedan law provides that the marriage
of a minor boy or girl may be contracted by his or her guardian.

The following persons have the right to contract a minors marriage successively. They are:

1) father,

2) paternal grandfather and

3) brother and other male relations on the fathers side in the order of inheritance

4) In default of paternal relations, the right to contract marriage devolves upon the mother,
maternal uncle or aunt and other maternal relations within the prohibited degrees.

5) In default of maternal kindred, the right to contract marriage devolves upon the ruling
authority.

Shia law says that only the father or the paternal grand-father however high can be the
guardians for marriage.

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When the marriage of a minor has been contracted by any guardian other than the father or
fathers father, the minor has the option to repudiate marriage on attaining puberty. This is
called the option of puberty or khyar-ul-bulgh.

The right to exercise the option of puberty is different, in different circumstances, in the case
of Mohummedan male and female .

a) In the case of a female, if after attaining puberty and after being informed of the marriage
and her right to repudiate it, she does not repudiate without unreasonable delay , the right of
repudiating the marriage is lost,. But according to the Dissolution of Muslim Marriages Act,
1939, if the marriage has not been consummated, she enjoys the right to repudiate the marriage
before attaining the age of eighteen years .

b) In the case of a male, the right continues until he has ratified the marriage either expressly
or impliedly as by payment of dower or by cohabitation.

The Dissolution of Muslim Marriages Act, 1939, has removed all restrictions on the exercise
of option of puberty in the case of a minor girl whose marriage has been arranged by a father
or grandfather .According to Sec.2 (vii) of the same Act a wife is entitled to the dissolution of
her marriage if she proves the following facts:

I) that the marriage has not been consummated

2) that the marriage took place before she attained the age of 15 years and

3) that she has repudiated the marriage before attaining the age of 18 years .

A decree of Court to invalidate the marriage is necessary. As regards effects of the exercise
of the opinion of puberty, the mere repudiation does not operate as dissolution of the marriage.
The Court must confirm the repudiation. Up until the confirmation of the repudiation by the
Court, the marriage subsists. In the event of death of either party to the marriage, before
confirmation of the repudiation by the Court, the other will inherit from him or from her, as
the case may be.

Shia law differs from that of the Sunni law in this respect. According to the Shia law, if a
marriage of minor is brought about by a person other than a father or grandfather the marriage
is wholly ineffective until it is ratified by the minor on attaining puberty.

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PREVALENCE OF THE OPTION OF PUBERTY IN THE INDIAN

CONTEXT

1. Musammat Chirag Bibi v. Ghulam Sarwar2

The plaintiff sued on the ground that the marriage was contracted by her step-grand-
mother, who could not act as guardian during the lifetime of her father, and that now
the wishes to exercise her option of puberty which she has under the Muhammadan
Law.
The Lahore Court held that the marriage contract was effected by the step-grand-
mother, but that the plaintiff's father was a consenting party to the marriage, therefore,
could not repudiate.

2. Mrs. Tahra Begum v. State of Delhi and Ors3.

The Delhi High Court ruled that a Muslim girl can marry as per her choice at the age
of 15 years if she has attained puberty, the court held that the marriage of a minor girl
valid and allowed her to stay in her matrimonial house. "This court notes that
according to Mohammedan Law a girl can marry without the consent of her parents
once she attains the age of puberty and she has the right to reside with her husband
even if she is below the age of 18....," a bench of justices S Ravindra Bhat and S P
Garg said.
Citing various Supreme Court judgements on the issue of minor Muslim girls'
marriage, the bench said "In view of the above judgments, it is clear that a Muslim
girl who has attained puberty i.e. 15 years can marry and such a marriage would not
be a void marriage. However, she has the option of treating the marriage as voidable,
at the time of her attaining the age of majority, i.e 18 years."

3. Faseela v. State of Kerala4

The High Court of Kerala here decided that as the act of the second petitioner in
staying with her husband and giving birth to his child only suggests that she has

2
60Ind. Cas.453
3
2013(1)RCR(Civil)798
4
2013(2)KLJ651

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exercised her option of puberty in favour of the marriage. Therefore, if repudiation

had to take place it should have been done within reasonable amount of time.

ANALYSIS OF THE OPTION OF PUBERTY

Anything done by the minor during the minority would not destroy the right which could
accrue only after puberty. The cohabitation of a minor girl would not thus put an end to the
option to repudiate the marriage after puberty. The assent should come after puberty and not
before, for the simple reason that the minor is incompetent to contract, nor should the
consummation have taken place without her consent5.

The option of puberty is one very important principle observed in Muslim marriage. In India,
the age of puberty is considered to be 15 in the case of males and 13 or 14 in the case of
females. The Privy Council has decided the age of puberty to be 9 years for Shia girl. This
option of rejecting the marriage performed at the minor age is essential as the individuals
never had the capacity to contract when it was being enforced. Therefore, it is rightly so that
if the male or female refuses to accept the marital contract after attaining the age of puberty,
it is considered as if the marriage never took place.

Also as an immediate measure to deter child marriages, the practice and to alleviate their
consequences, it is necessary to introduce the option of puberty on lines similar to that in
Muslim law.

5
Ghulam Lakina v. Falak Sha Allah Baksh, AIR 1950 Lah 45

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CONCLUSION
The Dissolution of Muslim Marriages Act, 1939 has benefited many Muslim women. The
most frequently used grounds are the option of puberty and failure to provide maintenance.
The validity of Muslim marriages of minors would be largely questioned on the lack of
judgement had it not been for the presence of this option. In the absence of this option the use
(and abuse) of police power, at the instance of parents with regard to marriages of
choice,would have easily worked in direct contrast to womens autonomy, agency and free
will.

At times, judges, with a concern for social justice, have resolved the issue of child marriages
by resorting to basic principles of human rights in order to save the minor girls from the
wrath of their parents and from institutionalization in state-run protective homes. The only
way they could do so was by upholding the validity of these marriages by bestowing on the
minor girls an agency (by invoking the premise of age of discretion) and by distancing the
notion of age from consent or agency.

On examining these judgments through the prism of womens rights, could these judicial
interventions in aid of minor girls be termed as regressive and the demand by womens
groups to declare these marriages as null and void be termed progressive? Invoking the
notion of age of discretion which the courts had done even while validating marriages of
minor Hindu girls who had eloped, did not evoke a similar controversy as is being done at
present. Ironically, this is being done now only because the parties concerned are Muslims.
Hence, one can easily say that in the wake of curbing child marriages, option of puberty
comes along as very helpful for a quick measure.

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BIBLIOGRAPHY
PRIMARY SOURCES

1. STATUTES
a. The Dissolution of the Muslim Marriages Act, 1939
b. The Special Marriage Act, 1954

SECONDARY SOURCES
1. BOOKS
a. Family Law by Paras Diwan
b. Cases and Materials on Family Law by Kusum
c. The Principles of Family Law by T. Padma
d. Introduction to Muslim Law by Tahrir Mahmood
e. The Islamic Marriage Contract- Case Studies in Islamic Family Law by Asifa
Quraishi
2. ARTICLES
a. Consent, Age and Agency: reflections on the recent Delhi High Court judgment
on minors and marriage by Flavia Agnes
b. Minor Girls, Free Will and Marriage by Geeta Ramaseshan

MISCELLANEOUS
1. www.jstor.org
2. www.manupatra.com
3. www.scconline.co.in
4. www.westlawindia.com

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