INTRODUCTION
The concept of the option of puberty, also known as “khayar-ul-bulugh” in Islamic law, plays a pivotal role in certain contractual matters, particularly marriage contracts. This legal provision allows an individual who was below the age of puberty at the time of entering into a marriage contract to affirm or nullify that contract upon reaching puberty.[1] Derived from Islamic legal principles, this concept is designed to protect the rights of individuals who might not have had the capacity to understand or consent to contractual obligations due to their young age.
In Islamic law, puberty, or “bulugh,” signifies the transition from childhood to adulthood, bringing a set of rights and responsibilities.[2] Puberty is generally recognized as the point when an individual reaches physical and sexual maturity, although the exact age can vary. According to Islamic jurisprudence, once a person reaches puberty, they are considered legally responsible (mukallaf) for their actions and are accountable for fulfilling their religious and legal obligations.
This option of puberty is particularly relevant in the context of marriage contracts. If a marriage is solemnized with the consent of guardians for individuals who have not attained puberty, those individuals, upon reaching puberty, may repudiate the marriage with the guardian’s consent, provided the marriage has not been consummated.[3] Islam places great emphasis on consent in marriage, underscored by the Prophet Muhammad (PBUH), who emphasized the importance of seeking mutual consent in marriage contracts.
However, child marriages, often lacking the full consent or understanding of the minor involved, are not uncommon in certain cultural contexts. To address this issue and protect minors, Islamic jurisprudence allows those who enter into a marriage contract before puberty to exercise the option of puberty upon reaching maturity. This means that upon reaching puberty and understanding the implications of the marriage contract, the individual has the right to either affirm or nullify the marriage.[4]
SIGNIFICANCE
The option of puberty serves several crucial purposes within Islamic law:
- Protection of Minors: By allowing minors to nullify a marriage contract upon reaching puberty, Islamic law aims to protect them from being forced into marriages without their full understanding or consent. This ensures that individuals can make informed decisions about their marital status once they can do so.
- Preservation of Consent: Islam places a strong emphasis on the importance of mutual consent in marriage. The option of puberty upholds this principle by giving individuals the right to affirm or nullify a marriage contract based on their own free will and understanding.
- Safeguarding Rights: The option of puberty ensures that individuals are not bound by contractual agreements entered into before they can fully comprehend their implications. This helps prevent exploitation and ensures that individuals’ rights are respected within the legal framework of Islamic law.[5]
For the option of puberty to be valid, the individual must have reached puberty and attained the capacity to understand the consequences of the contract. The exercise of this option must be done within a reasonable period after attaining puberty. Specifically, this right can be exercised within three years from the moment of attaining puberty. Failure to repudiate the marriage within a reasonable timeframe after being informed of this right results in forfeiture of the right. Additionally, the option of puberty becomes void upon the marriage being consummated or upon the acceptance of the dowry, indicating approval.[6]
AGE OF PUBERTY
In the Indian legal system, specific activities are regulated by prescribed ages to ensure that individuals have attained majority and possess the capacity to comprehend the implications of their actions. The Indian Majority Act of 1875[7] designates 18 years as the age of majority. However, in the realm of Muslim personal law governing marriage, the Indian Majority Act does not apply. Under Muslim personal law, marriage is governed by the concept of puberty, typically set at 15 years. Consequently, the minimum age for contracting marriage within the Muslim religion is 15 years.[8]
For a marriage to be valid under Muslim law, both parties must be of sound mind, capable of providing free consent, and considered major as per their law. If a marriage is contracted by guardians before either party reaches puberty, it remains valid, and neither party has the right to annul the marriage upon reaching puberty.[9]
In the case of Abdul Karim v. Amina Bai[10], it was declared that the repudiation choice provided to the wife is based on values emphasized in the Qur’an. Islam aims to alleviate the effects of pre-Islamic practices that oppressed women and children. Upon reaching puberty, the individual must exercise the choice of repudiation promptly. This choice is lost if the marriage is consummated.
Islamic law outlines different stages of childhood and puberty concerning marriage:
- Saghir: Under the age of 7, where marriage is invalid ab initio.
- Sariri: Between 7 and 15 years, where a valid marriage can occur if performed by guardians.
- Bulugh: Above 15 years, where individuals can marry with their free consent.
LEGAL FRAMEWORK AND JUDICIAL APPROACH
Sharia permits marriages contracted by guardians of minors, with the option for the minor to repudiate the marriage upon reaching puberty. The preference for marriage guardianship is given to the father, then the paternal grandfather, and then other agnatic relations, and finally to the mother and other maternal relations.[11]
Section 2(vii) of The Dissolution of Muslim Marriages Act[12], 1939 states that a woman given in marriage by her father or guardian before attaining 15 years can repudiate the marriage before 18 years, provided the marriage has not been consummated.
Judicial rulings in India have examined the option of puberty within the context of Muslim marriages. In Behram Khan v. Akhtari Begum[13], it was determined that if a marriage is consummated before the wife reaches puberty, it does not eliminate her right to choose. In Bismillah Begum v. Nur Mohammad[14], it was ruled that the wife’s ability to exercise this choice only arises once she becomes aware of her entitlement. This legal principle was further upheld by the Patna High Court in Mst. Ayesha v. Muhammed Yunus[15], which held that a minor wife retains her right to annul the marriage within a reasonable timeframe after discovering her entitlement.
The Bombay High Court in Abdul Karim v. Amina Bai[16] stated that the consummation of marriage only terminates the option if it is consensual and post-puberty. There is disagreement on whether the wife could exercise the option under the 1939 Act alone or in other legal proceedings like restitution of conjugal rights.[17] The Calcutta High Court[18] ruled that the option is only valid within the Act, while the Madhya Pradesh High Court[19] allowed it in conjugal rights suits.
In Pakistan, exercising the option ends the marriage without court intervention, and a decree merely affirms the decision. The option of puberty follows Hanafi law, aligning puberty with the majority for marriage, while the overall majority relies on reaching the age of discretion.
CONCLUSION
The option of puberty, deeply embedded in Islamic law, is a crucial safeguard within Muslim marriages, particularly regarding contract validity and personal autonomy. It ensures protection for minors by allowing them to nullify marriage contracts upon reaching physical and sexual maturity, aligning with the Islamic emphasis on consent and individual rights. This concept preserves mutual consent, upholds fairness and justice in Islamic jurisprudence, and reflects the nuanced application of the puberty option within diverse legal systems. From judicial interpretations in India to the legal framework in Pakistan, the option of puberty underscores Islam’s commitment to protecting the vulnerable and ensuring equitable treatment within marriage and contractual relationships.
Authors Name: Adeeba Hasan & Asad Naushad Khan (Faculty of Law, Jamia Millia Islamia, New Delhi)
References:
[1] Tahir Mahmood, Muslim Law in India and Abroad (Universal Law Publishing 2016).
[2] ‘Nikah – A Contract of Marriage’ (2021) 1.4 JCLJ 1242 <www.scconline.com> accessed 20 February 2024.
[3] Prohibition of Child Marriage (Amendment) Act 2006, (2022) 2.3 JCLJ 228 <www.scconline.com> accessed 20 February 2024.
[4] ‘Muslim Family Law in South Asia: the Right to Avoid an Arranged Marriage Contracted During Minority’ (1981) 23 JILI 149 <www.scconline.com> accessed 20 February 2024.
[5] Manzar Saeed, Commentary on Muslim Law in India (Orient Publishing Company 2015)
[6] Dr. Kahkashan Y. Danyal, Muslim Law of Marriage, Dower, Divorce and Maintenance (Regal Publications 2015)
[7] Mulla, Principles of Mohammedan Law (12th edn, section 207) 224
[8] Chancery Law Chronicles, ‘Option of Puberty’ (2 May 2011) <https://www.clcbd.org/lawdictionary> accessed 21 February 2024
[9] (1935) 59 ILR Bom 426.
[10] Supra note 2.
[11] ‘Women’s Rights under Muslim Family Law with Particular Reference to Custody and Guardianship’ (1997) 8 DULJ 49 <https://www.scconline.com> accessed 23 February 2024
[12] The Protection of Children from Sexual Offences Act 2012, No 32, Acts of Parliament, 2012 (India).
[13] PLD 1957 Lah 548.
[14] (1921) 44 All 61.
[15] AIR 1938 Pat. 604.
[16] Supra note 9.
[17] Nizamuddin v. Huseni, AIR 1962 MP 212.
[18] Mafizuddin Mandal v. Rahima Bibi (1933) 58 Cal LJ 73.
[19] Pir Mohammed v. State, AIR 1960 MP 24.
