Muslim personal law in India is governed by a combination of Quranic injunctions, Hadith (Prophet’s traditions), and various schools of jurisprudence. One of the unique provisions under Muslim law is the option of puberty or khyar-ul-bulugh, a legal remedy available to a minor spouse, particularly the wife, to repudiate a marriage contracted during childhood. This concept embodies a balance between parental control and individual autonomy, especially in societies where child marriage is still prevalent.
The option of puberty allows the minor—on attaining puberty—to either ratify or repudiate the marriage, provided the marriage was contracted by a guardian and without their consent. This article delves into the legal provisions, judicial interpretations, and gendered dimensions of this principle under Muslim law in India.
Concept of Option of Puberty
Meaning and Origin
The doctrine of Khyar-ul-Bulugh (option of puberty) stems from Islamic jurisprudence that acknowledges a child’s incapacity to make binding legal decisions. Therefore, if a guardian contracts a marriage on behalf of a minor, the minor has the right to annul the marriage on attaining puberty.
Sir AAA Fyzee defined the option of puberty in these words,
“If a Muslim minor has been married during minority by the guardian, the minor has the right to, on attaining majority either to confirm or repudiate it.”
This right is rooted in fairness and individual liberty, and is more commonly extended to female minors. The rationale is based on the principle that a minor cannot give valid consent, and so upon attaining majority, must have the freedom to either accept or repudiate the marital relationship.
Nizamuddin v. Huseni & Ors., AIR 1960 MP 212:
In this case, the appellant Nizamuddin filed a suit for restitution of conjugal rights, claiming his wife, Mst. Huseni, had unlawfully left him. The marriage took place when Huseni was only five years old and was never consummated. Upon attaining puberty, she repudiated the marriage. The lower appellate court dismissed the suit, holding the marriage invalid due to the minor’s age at the time of marriage and valid repudiation upon puberty.
The Madhya Pradesh High Court recognised the doctrine of option of puberty under Muslim law, which allows a minor to repudiate a marriage arranged by any guardian other than the father or paternal grandfather upon reaching puberty.
As the key issue—whether the marriage was contracted by her father or mother—was not specifically framed and decided by the trial court, the High Court remanded the case for fresh adjudication limited to that question.
Legal Framework in India
Muslim Personal Law (Shariat) Application Act, 1937
The Muslim Personal Law (Shariat) Application Act, 1937 brought Muslim personal law under statutory recognition, making it applicable in matters such as marriage, divorce, inheritance, and guardianship. The concept of the option of puberty, while not codified in this Act, is recognised as part of the Shariat.
Dissolution of Muslim Marriages Act, 1939 – Section 2(vii)
The most direct legal provision in Indian statutory law relating to the option of puberty is found in Section 2(vii) of the Dissolution of Muslim Marriages Act, 1939. It states:
“A woman married before the age of fifteen by her father or other guardian may repudiate the marriage before attaining the age of eighteen, provided the marriage has not been consummated.”
This provision embodies the doctrine of khiyar-al-bulugh and sets clear conditions:
- Marriage took place before age 15.
- Repudiation must occur before age 18.
- Marriage must not have been consummated.
Periods Relevant to the Exercise of the Option of Puberty under Muslim Law
Under Muslim law, the right to repudiate a marriage by exercising the option of puberty is linked to the age and developmental stages of the child. These stages are traditionally categorised as follows:
Saghir (Below 7 Years of Age)
This is the earliest stage of childhood. During this period, a boy or girl is considered entirely incapable of understanding or giving valid consent. Hence, any marriage contracted during this stage is strictly dependent on a guardian’s authority, and the minor’s consent holds no legal significance.
Sarir (Between 7 and 15 Years of Age)
This phase marks a transition where the child, though still a minor, is considered mature enough to understand basic social norms but not yet capable of entering into legal contracts. During this period, a guardian may validly contract a marriage on behalf of the minor. However, the minor’s consent—even if given—is not legally binding or recognised under Muslim law.
Bulugh (Above 15 Years of Age)
This stage refers to the age of puberty or maturity. Once a person attains the age of 15 (in the absence of earlier physical signs of puberty), they are presumed to have reached the age of majority under Muslim law. At this point, individuals gain the legal capacity to contract a marriage independently.
They also acquire the right to repudiate any marriage arranged during their minority, provided it has not been consummated and the repudiation occurs before the age of 18.
Conditions for Exercising the Option
For a valid repudiation of marriage under the option of puberty, the following conditions must be fulfilled:
| Condition | Explanation |
|---|---|
| Minor at time of marriage | The marriage must have been contracted when the spouse (typically the girl) was underage. |
| Guardian’s role | Marriage must be arranged by a guardian (wali), especially other than the father/grandfather (under stricter views). |
| Attainment of puberty | The right is exercisable only upon attaining puberty (presumed at 15 years under Muslim law). |
| Repudiation before 18 years | According to Section 2(vii) of the 1939 Act, repudiation must be done before completing 18 years. |
| Non-consummation of marriage | The marriage must not have been consummated for this right to remain valid. |
Key Judicial Pronouncements
1) Aamir v. State of Haryana & Ors. (2018)
In this habeas corpus petition, the Punjab and Haryana High Court upheld the validity of a marriage solemnised under Muslim personal law between a 22-year-old man and a 16-year-old girl who had attained puberty. Despite objections from the girl’s family and the registration of FIRs, the Court ruled that, as per Muslim law, a girl who has attained puberty (presumed at age 15) has the right to marry without parental consent.
The Court relied on precedents, including Md. Idris v. State of Bihar and Rukshana v. NCT of Delhi, and emphasised that the Prohibition of Child Marriage Act, 2006, does not override the specific provisions of the Muslim Personal Law (Shariat) Application Act, 1937. Finding that the marriage was valid and that the detainee wished to live with her husband, the Court allowed the petition and permitted the girl to remain with the petitioner.
2) Alimamad Mersha Shaikh v. State of Gujarat (2006)
Gujarat High Court quashed a Magistrate’s order that directed a 16-year-old Muslim girl, Zarina, to be kept in a women’s welfare home until she turned 18, despite her willingness to live with her husband. The Court held that under Muslim personal law, a girl who has attained puberty (presumed at 15) can marry without guardian consent.
Finding the girl mentally sound and capable of understanding marital responsibilities, the Court ruled that the marriage was valid and ordered her immediate release to live with her husband, dismissing the Magistrate’s conclusion as contrary to both law and evidence.
205th Report of the Law Commission of India (February 2008)
The 205th Report of the Law Commission of India (February 2008) critically examines the Prohibition of Child Marriage Act, 2006 and allied laws, recommending urgent reforms to curb child marriage and protect affected minors, particularly girls. Triggered by a Supreme Court directive, the report highlights inconsistencies in Indian laws regarding the definition of a child and the age of marriage and consent. It underscores the severe health, social, and human rights consequences of child marriage, especially early pregnancy, domestic violence, lack of education, and loss of autonomy.
The Commission proposes making marriages involving children under 16 void and those between 16 and 18 voidable, aligning the age of sexual consent to 16 (regardless of marital status), setting the minimum age of marriage at 18 for both genders, removing the marital rape exception under IPC (now BNS), and mandating marriage registration.
Drawing from global practices and international treaties like CEDAW and CRC, the report calls for a rights-based and uniform legislative framework to eliminate the practice of child marriage in India.
Gender Considerations and Critique
While the doctrine of khiyar-al-bulugh seems to offer an empowering provision for Muslim women, its practical implementation is riddled with challenges:
- Many women, especially from conservative or rural backgrounds, are unaware of this right.
- Family and societal pressure often prevent the exercise of this option.
- Proof of age, consent, and consummation becomes a major hurdle in litigation.
- Courts may vary in interpreting what constitutes consummation or repudiation.
Moreover, this right is asymmetrical—though theoretically available to males, in practice, it is a protection almost exclusively afforded to women.
Conclusion
The doctrine of repudiation of marriage by option of puberty under Muslim law represents a unique intersection of religious tradition, legal safeguards, and individual rights. While it provides a remedy to undo the consequences of child marriage, its reliance on procedural conditions like proof of non-consummation and timely repudiation often weakens its effectiveness.
In the contemporary context, this right should be seen as a transitional safeguard until the legal system, community awareness, and legislative reforms can prevent child marriages altogether. Strengthening this provision through awareness, legal aid, and support services will be vital in ensuring that the right is meaningful, not merely theoretical.
References
[1] The Dissolution of Muslim Marriages Act, 1939
[2] Muslim Personal Law (Shariat) Application Act, 1937
[3] Aamir v. State of Haryana & Ors., Criminal Writ Petition No. 1568 of 2017
[4] Alimamad Mersha Shaikh v. State of Gujarat, (2006)3 GLR 2472
[5] Universal’s Guide to Judicial Service Examination (19th Edition, 2024)
