DOCTRINE OF PUBERTY
Nikah is an Arabic word that literally means ‘to tie up together’ it is referred to the Islamic marriage. It is in particular a matrimonial contract that gives the women high status in the society. Nikah was done in order to ensure stability in a married life as it bound both the partners together for an indefinite period and also required the woman to be honoured with the mahr. According to muhammadan law muslim marriage (nikaah) is a contractual relation to legalize sexual intercourse and procreation of children. It is a civil contract between two opposite sexes.
Muslim marriages are seen as proper contractual relation rather than a sacrament relation unlike Hindu marriages because they contain all the ingredients of a contract. The parties have to be competent and offer(Ijab), acceptance(Qubool) and free consent form an important part. The parties have the authority to decide the reasonable terms of the marriage and in case of breach; there are provisions for the rights and obligations of the parties. but for the capacity of parties, the Mohammadan law prescribes age of puberty. For the purpose of consideration Muslim marriages are required Mahr as a consideration for the marriage.
- Hedaya says that “Marriage implies a particular contract used for the purpose of legalising children.
- Justice Mahmood has defined the Muslim marriage as “a purely civil contract”.
The essentials of Muslim marriage are as follows:
- Competence Of The Parties
- Free Consent Of The Parties
- Formalities In The Marriage
- Absence Of Prohibition
Age of puberty
The age of majority in Muslim law is the age of puberty in spite of 18 years of age. Hedaya says the minimum age of puberty for a boy is 12 years and for a girl it is 9 years but it has been fixed at 15 years of age by the Privy Council in the year 1916. Therefore a boy or a girl irrespective of the gender, of 15 years of age will be presumed to have attained the age of puberty unless the contrary is proved. Under Muslim law, a person under 15 years of age is presumed to be a minor and is therefore incompetent to give consent for marriage. Unless and until the guardian’s consent is not obtained the marriage will be void.
Under Muslim law, guardians for marriage are different from guardians appointed by the court. The order of the priority is as follows:
- Paternal Grandfather, however high;
- Brother or other male members of the father’s family;
- Mother; and
- Maternal uncle, aunt or other maternal relatives.
A remoter guardian for marriage cannot get the minor married off without actually following the prescribed order and such a marriage will be void. Once the marriage is happened then came the option of puberty in Muslim marriages. The option of puberty or the doctrine of puberty is also called Khyar-ul-Bulugh
Under Muslim marriage, a minor on attaining the age of puberty can exercise the option of puberty (Khyar-ul-Bulugh) wherein the minor can approve or disapprove the marriage contracted by the guardian who is not the father or the grandfather. If the minor objects to the marriage it will be dissolved with immediate effect. If the minor didn’t raise any objection then it will be presumed that he has approved the marriage.
If the father or the grandfather has contracted marriage fraudulently the minor under the doctrine of puberty can repudiate the marriage on attaining the age of puberty. A wife can exercise the right even if the marriage was contracted by her father or her grandfather. The husband will lose his right to the option of puberty if the marriage has been consummated after attaining puberty.
Khyar-ul-Bulugh is a right available to repudiate a woman’s marriage—if it occurred while she was a minor, which include a marriage contracted for her by her father or grandfather. A boy or girl who has not attained puberty is not competent to enter into a contract of marriage, but he or she may be contracted in marriage by his or her guardian. Option of puberty is legal right given to minor wife to terminate the marriage once she turns major to avoid the marriage contract, entered by her guardian.
The option is lost for the wife, if she permits the marriage to be consummated after she attains puberty but mere consummation is not sufficient unless it happens with the wife’s consent. The This is in itself a procedural safeguard giving rise to a plethora of rights and duties flowing from the cancellation of marriage.
Ibn Abbas reported that a virgin came to the Prophet of Allah and narrated that her father had given her in marriage to a person whom she disliked. The Prophet gave her an option. Aisha reported that a girl came and stated that her father had given her in marriage to his nephew and she disliked him. On hearing the discourse, he at once sent a 108 message for the father of the girl and enquired from him whether the facts stated were true, after which the option was left in the hands of the girl whether to stay in such marriage or have it repudiated.
The Dissolution of Muslim Marriages Act, 1939 has removed all restrictions on the exercise of the option of puberty in the case of a minor girl whose marriage has been arranged by her father or grandfather. According to Section 2 (vii) of the Act, the wife can claim dissolution of her marriage if she is able to prove one of the following facts:
- The marriage hasn’t been consummated.
- The marriage occurred before the woman attained 15 years.
- That the repudiation of the marriage had been done by her before attaining 18 years.
In the modern legal scenario, the Court decree in rendering such marriage invalid is necessary.
Author: Ajay Singh Tomar,
Amity University Madhya Pradesh