The marriage under Muhammadan law is in the nature of a contract and as such requires the free and unfettered consent of the parties to it. Normally speaking, a man and a woman should conclude the contract between themselves but in the case of minors i.e., who have not attained the age of puberty as recognised by Muhammadan law, the contract might be entered into by their respective guardians. Before the Act 8 of 1939 (The Dissolution of Muslim Marriages Act 1939) a minor girl given in marriage by the father or the father’s father, had no option to repudiate it on the attainment of her puberty but this has now been changed. The contract of the father or the father’s father stands on no higher footing than that of any other guardian and the minor could repudiate or ratify the contract made on his or her behalf during the minority, after the attainment of puberty. ‘Puberty’ under Muhammadan law is presumed, in the absence of evidence, on completion of the age of 15 years. It would, therefore, necessarily follow that the minor should exercise the option after the age of 15 years unless there was evidence to the contrary that the puberty had been attained earlier and the burden of proving this shall lie upon the person so pleading. Anything done by the minor during the minority would not destroy the right which could accrue only after puberty. The co-habitation of a minor girl would not thus put an end to the ‘option’ to repudiate the marriage after puberty.
