A Muslim girl who has reached puberty on attaining the age of fifteen, is competent to enter into matrimony even if this partakes of a contract simplicitor

It is quite often posited that a Muslim marriage partakes of the nature of a contract. If this is so, it would become necessary to advert to the Indian Contract Act, 1872 (‘Contract Act’ for short) which extends to the whole of India without any exception of religion. Section 10 of Contract Act articulates that all agreements are contracts if they are made by the free consent of parties competent to contract. Section 11 thereof specifies that every person is competent to contract who is of the age of majority according to the laws to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject. Thus an exception requiring the application of personal laws has been carved out even in the Contract Act. Our attention has been drawn to the opinion of Dr. Tahir Mahmood in The Muslim Law of India to the effect that “it is only the form of marriage that in Muslim law is contractual and non-ceremonial; marriage itself as a concept is not merely a ‘contract’.” The learned Author emphasizes that the Holy Quran does not treat marriage as an ordinary contract. The submission has been made before us that if the provisions of the Contract Act are made applicable to Muslim marriages, it will render nugatory most of the provisions of the Shariat law. We find no need to delve further into this aspect for the reason that Section 11 of the Contract Act in terms prescribes the applicability of personal laws on the issue of the competency of a person to enter into a contract. Furthermore, as we have already pointed out, Section 2 of the Majority Act indicates that its provisions do not impact on matters of marriage, dower, divorce and adoption. The Division Bench of the High Court of Judicature at Madras has opined in Arulananda Muthu and Another Vs. Ponnuswami alias Thambaya swami Maniyagar and Others, that “as regards questions of marriage, adoption, etc. the capacity of minors is left untouched by the Indian Majority Act…”. The same conclusion was reached in Mt. Bhagwati Vs. Dist. Judge of Aligarh, where it was held that a person who has attained majority under Hindu Law would be legally competent to marry even though she had not reached the age prescribed under the Majority Act, that is, eighteen years. Although the nodus before the Division Benches in Abdul Azeez Vs. Pathumma Bi, Ahmed Suleman Vohra Vs. Bai Fatma, , and of a Single Judge in Naksetan Bibi v. Habibab Rahman AIR 1948 Cal 66 was whether a suit filed by a person below the age of eighteen was maintainable, all of them unequivocally posit that the marriage of a Muslim after reaching puberty but before turning eighteen is valid, because the personal laws to which she is subject permit it. In this analysis, it is our opinion that a Muslim girl who has reached puberty or is presumed to have reached puberty on attaining the age of fifteen, is competent to enter into matrimony even if this partakes of a contract simplicitor.