Khyar – ul – bulugh [Revolution from a marital obligation to a ground for dissolution of marriage]

Abstract

Under the Muslim Personal Law, marriage of persons who have not attainted the age of puberty [15 years] such a minor boy or a girl or a lunatic, who are incapable of giving a free consent to the marriage, can be validly contracted by their respective guardians such as father, paternal grandfather and etc and such marriage so contracted by a guardian becomes binding upon that minor boy or girl or lunatic. But however, although the marriage is binding that minor or lunatic boy or girl reserves the right to either repudiate or ratify the marriage so contracted after attaining the age of puberty but before completing the age of 18 years, which is known as Khyar – ul – bulugh or [Option of Puberty]. Earlier prior to the Dissolution Of Muslim Marriage Act, 1939, a marriage of minor Muslim girl contracted by her father or paternal grandfather does not have the right to either repudiate or ratify the marriage but now it is not only a right but also a ground for the dissolution of marriage available to a Muslim wife under Sec. 2(7) of the Dissolution of Muslim Marriage Act 1939. This short article deals with the most important aspect of a Muslim Marriage, Khyar – ul – bulugh or popularly known as the Option of Puberty, covering its key concepts such as meaning, background, purpose, legal effects and its present position in respect both marriage and divorce.

Keywords :-  Muslim law ,  Khyar – ul – bulugh , Dissolution Of Muslim Marriage Act , 1939 , Minor , Muslim Wife , Puberty .

Introduction

A minor who was contracted in wedlock by the guardian may exercise the right of repudiating or ratifying the contract of wedlock upon attaining puberty , this right of the minor is referred to as the option of puberty [ Khyar – ul – bulugh ] . Thus, Khyar – ul – bulugh can be stated as the right of a minor boy or girl , whose marriage has been contracted on her / his behalf by a guardian , to repudiate or accept the marriage at puberty . A minor is incapable of giving consent . The right to give consent in order to approach a minor’s marriage vests successively in the following persons :-

1. Father
2. Paternal grandfather , however high

• Father’s brother and other paternal relatives

1. Mother
2. The aunt or uncle of the mother and other maternal relatives

Only the father and paternal grandfather are considered valid as guardian for entering into marriage of a minor under Shia law .

Under Muslim law , we can divide a man’s or woman’s life into following phases :-

1) Saghir is the first stage wherein the boy or the girl is below 7 years of age . At this stage the marriage is void – ab – initio . This question does not arise regarding his or her consent or his or her choice . In no case a marriage at this stage can be recognized .

2) Sairi, is the second stage where his or her age is greater than seven years but less than 15 years. In this stage though he or she may marry , his or her will to marry is not valid and devoid of any validity . In this stage , he or she cannot marry as per his or her will .

3) Bulugh , this is the third stage when he or she is above 15 years of age and reaches majority. It is at this moment that he or she can enter into contract of marriage by his or her free will .

Background

• The origin of the meaning of Khyar -ul- Bulugh traces back to early Islamic times , when marriage ceremonies and societal practices were very different from today . Most child marriages were prevalent , and parents or guardians would simply choose a child’s bride without consulting the child . Muslim scholars came up with the Khyar -ul- Bulugh doctrine to rectify any potential injustice caused by these practices . It emerged as a reaction to the necessity to defend Children’s rights and making sure that marriages were free will and with mutual consent .
• This cardinal legal principle was shaped by the teachings of the Prophet and its later evolution in Islamic law . The Khyar -ul- Bulugh theory is partially consonant with the broader Islamic concepts of equality , justice , and protection of individual rights . It demonstrates that Islamic jurisprudence preserves the individuality and well – being of individuals , especially when it comes to choices as significant and private as marriage .
• Aims And Objectives of Khyar – ul – bulugh :-

The aims and objectives of Khyar – ul – bulugh can be listed below :-

• It safeguards the minors against forceful or abusive marriages
• It promotes the interests of the minor by providing them the right to either repudiate or ratify the marriage after attaining the age of puberty but before completing the age of 18 years , provided that the marriage is not consummated
• It acts as a check on the power of a guardian who can contract a marriage of a minor and held the same as binding
• It act as a ground which a Muslim wife can avail for obtaining a decree for the dissolution of marriage under Sec . 2(7) of the Dissolution Of Muslim Marriage Act , 1939

Advantages And Disadvantages Of Khyar – ul – bulugh

• The advantages of Khyar – ul – bulugh can be listed below :-
• Protection of Minors’ Autonomy :- Permits minors to repudiate marriages that were contracted without their agreement , protecting against forced or unwanted marriages . This aligns with the Hadith , where Prophet Muhammad gave girls the right to annul marriages forced by guardians .
• Maintains Consent in Marriage :– Strengthens Islamic law that marriage should be by free consent . For example, Indian courts have acknowledged that a Muslim girl reaching puberty age can lawfully ratify or cancel her marriage.
• Judicial Recognition:- The courts in such cases as Mustafa v. Smt. Khursida (2006) [1]maintained the right of annulment of unconsummated marriages entered into in minority to ensure legal redress.
• Comprehensiveness with Progressive Legislation :- The Dissolution of Muslim Marriages Act , 1939 , makes this a principle, allowing women to dissolve marriages under the age of 18 if entered into before the age of 15 .
• Cultural Relevance :- Combines traditional Islamic principles with progressive human rights standards , as in decisions such as Tahra Begum v. State of Delhi and Ors [2](where courts upheld the right of a 15 – year – old to select her husband) .

• The disadvantages of Khyar – ul – bulugh can be listed below :-
• Gender Disparities :- Girls are subject to more restrictive conditions, including establishing non-consensual consummatio , whereas boys find it easier to annul marriages. It is indicative of patriarchal prejudices in application .
• Practical Barriers to Repudiation :- Minors are not able to establish coercion or a lack of consent , particularly after consummation . Courts require “proof beyond reasonable doubt , ” which is hard .
• Financial Insecurity:- The law offers no maintenance or support after annulment, discouraging minors from asserting their rights out of survival fears .
• Conflict with Statutory Laws :- While Islamic law permits child marriage, India’s Prohibition of Child Marriage Act , 2006 , criminalizes it , creating legal contradictions .
• Inconsistent Application Across Schools :- Hanafi law allows annulment only if guardians other than the father/grandfather contracted the marriage , while Shafi and Maliki schools impose additional restrictions .

 Legal Position Under The Dissolution Of Muslim Marriage Act , 1939

• In ancient Muslim law , if a minor’s marriage had been entered into by his / her father or paternal grandfather he / she could not repudiate the marriage . This disability was eliminated by the Dissolution Of Muslim Marriage Act , 1939 . In the event of a Muslim male , he has the same puberty option ; the option of puberty can be made at reaching puberty by :- a) Express Declaration

1. b) Payment of Dower
2. c) Cohabitation

• As per the Present Muslim law [ After arrival of the Dissolution Of Muslim Marriage Act , 1939 ] it has significantly altered the earlier law . Before this marriage of minor girl entered into by father or paternal grandfather could not be revoked by the minor on reaching the age of puberty except in extremely special situations . But now this law has been suspended by Sec. 2(7) of the aforesaid act .
• As per Sec . 2(7) of the Dissolution Of Muslim Marriage Act , 1939 , a wife married according to Muslim law shall be entitled to a decree for the dissolution of her marriage on the basis that she have been given in marriage by her father or other guardian prior to attaining the age of 15 years , rejected the marriage before attaining the age of 18 years subject to the condition that the marriage has not been consummated .

Cases Highlighting The Issue Of Khyar – ul – bulugh

Some of the cases highlighting the issue of Khyar – ul – bulugh can be listed below :-

• Musammat Chirag Bibi v. Ghulam Sarwar :- In the case of Musammat Chirag Bibi v. Ghulam Sarwar[3] the plaintiff filed a suit and pleaded that her marriage should be declared to be null and void as the marriage was entered into by her step – grandmother at a time when , according to the law of Islam , she was not her guardian while her father was alive and consequently she desired to exercise the Khyar -ul- Bulugh. Lahore Court ruled that the marriage contract was tainted with the step – grandmother but as the father was a party to such wedlock, it could not be renounced.

• Faseela v. State Of Kerala :- In the case of Faseela v. State Of Kerala[4], the High Court of Kerala here ruled that as the act of the second petitioner to co – habit with her husband and give birth to his child only suggests that she has chosen the marriage under puberty option and thus , if repudiation had to be performed , it would have to have been done in reasonable time frame .
• Abdul Karim v. Amina Bai :- The case of Abdul Karim v. Amina Bibi [5], was a case of child marriage where the wife moved to nullify the marriage when she attained puberty . The stand of the husband was that consummation of the marriage revoked the right of repudiation on her part . The Bombay High Court interpreted that pre-puberty consummation does not preclude the right of the wife to invoke Khyar -ul- Bulugh .The choice is available unless the wife expressly or impliedly consents to the marriage upon reaching puberty . The ruling made it clear that post – puberty consent (say , by continued living together or voluntary consummation) would invalidate the right
• Tahra Begum v. State of Delhi and Ors :- In the case of Mrs. Tahra Begum v. State of Delhi and Ors , the Delhi High Court ruled that a Muslim girl is entitled to get married of her own choice at 15 years of age if she has attained puberty and held that the marriage of the minor girl is valid and that she may stay in her matrimonial household .

Conclusion

• Khyar -ul- Bulugh, or Option of Puberty, is an important protection in Islamic law that makes it possible for minors married before puberty to confirm or reject the marriage upon puberty. The doctrine maintains the norms of consent and autonomy of the individual and prevents any child from being locked into a contract executed without their full comprehension or free will . It is applicable to both minor Muslim girls and boys, although practical application tends to add further stipulations on girls, responding to some traditional gender differences.
• Judicial rulings, including in Mustafa v. Smt. Khursida ( 2006 ), have underlined that such a right can be availed as long as the marriage has not been consummated prior to the attainment of puberty, and the Dissolution of Muslim Marriages Act, 1939, has gone a step further in expanding the ambit of such a right. Yet, obstacles exists, including denial of post – annulment assistance to minors, which can deter the exercise of this right.
• In summary we can say that, Khyar -ul- Bulugh illustrates the balance between family tradition and the growing understanding of individual rights, particularly for children, that Islamic law strives for through the provision of an essential legal remedy against unwanted or forced child marriage.

 

Reference

[1] Mustafa v. Smt. Khursida (2006) AIR 2006 RAJ 31.

[2] Mrs. Tahra Begum v. State of Delhi and Ors 2012 SCC 2714.

[3] Musammat Chirag Bibi v. Ghulam Sarwar 60 Ind Cas 453.

[4] Faseela v. State Of Kerala 2013 (1) RCR (Civil) 798.

[5] Abdul Karim v. Amina Bibi AIR 1935 BOMBAY 308.