IN THE HON’BLE

HIGH COURT OF BOMBAY

KABIR SHAH
(Appellant)
v.
AMINA
(Respondent)

MEMORANDUM FOR THE APPELLANT

COUNSEL FOR APPELLANT

(LUCKY TANDON)
ROLL NO.:75 SECTION – C SEM: III

HIDAYATULLAH NATIONAL LAW

UNIVERSITY, RAIPUR
Date of Submission : 7-04-2015
 Amina v. Kabir shah

TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS__________________________________________________ 3

2.INDEX OF AUTHORITIES___________________________________________________ 4

3.STATEMENT OF JURISDICTION_____________________________________________5

4.STATEMENT OF FACTS_____________________________________________________6

5.ISSUES RAISED_____________________________________________________________7

6.SUMMARY OF ARGUMENTS_________________________________________________8

7.WRITTEN PLEADINGS_____________________________________________________9

1. REPUDIATION OF MARRIAGE IS VALID

1.1 THE CRITERIA FOR OBTAINING DISSOLUTION UNDER SEC 2 (VII)

8.PRAYER_________________________________________________________________15

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 Amina v. Kabir shah

LIST OF ABBREVIATIONS

& And

AIR All India Reporter

Anr. Another

Ed. Edition

Etc. Et Cetera.

Govt. Government

Hon’ble Honorable

HC High Court

Ors. Others

P. Page Number

SC Supreme Court

SCC Supreme Court Cases

v. Versus

www world wide web

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 Amina v. Kabir shah

INDEX OF AUTHORITIES

CONSTITUTION

 THE CONSTITUTION OF INDIA

STATUTES:

 THE DISSOLUTION OF MUSLIM MARRIAGE ACT,1939.

JUDICIAL DECISIONS:

 Mt. Ghulam Sakina v. Falak Sher Allah Baksh_____________________________9

 ABDUL KARIM V. AMINA BAI _______________________________________________11

DICTIONARIES:
 CONCISE OXFORD DICTIONARY, 10TH. ED., OXFORD UNIVERSITY PRESS, 2002
 BRYAN AND GARNER, BLACK'S LAW DICTIONARY, (6th Edn. Sweet & Maxwell)
WEBSITES:

 www.manupatra.com
 www.scconline.com

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 Amina v. Kabir shah

STATEMENT OF JURISDICTION

The Appellant, Kabir Shah has approached the Hon’ble High Court of Bombay under Article 226 of the
Constitution of India.

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 Amina v. Kabir shah

STATEMENT OF FACTS

1. Amina, aged 12, a muslim was married off to Kabeer Shah aged 35 by her grandfather
because she had lost her father during her early childhood.
2. Amina was happy with Kabeer Shah, who was also a very good person by heart. He educated
her and provided her all the other comforts at his place.
3. He was so concerned about Amina that he didn’t even try for the consummation of marriage
considering her age and physical conditions. At the age of 16 when she was studying in
Junior college, she attained puberty. In the meantime she fell in love with Aman an attractive
young boy in her college.
4. After the attainment of puberty one night Kabeer Shah initiated some sexual activities but she
denied co-operation. Kabeer Shah felt that she insulted him and out of that anger he
forcefully penetrated his penis inside the vagina of Amina to satisfy himself. Though it was
against her will but the marriage got consummated.
5. Now, Amina wants to end up the matrimonial life with Kabeer Shah and seeks new beginning
with Aman. She repudiated the marriage by applying the option of puberty. Kabeer Shah has
challenged the validity of the repudiation.

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 Amina v. Kabir shah

ISSUES RAISED

1. whether the Plaintiff had repudiated her marriage in accordance with the

requirements of Section 2, Dissolution of Muslim Marriages Act, 1989,

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 Amina v. Kabir shah

SUMMARY OF PLEADINGS

1. Yes, she can repudiate the marriage under section 2(vii) of the dissolution of muslim

marriages act, 1939.

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 Amina v. Kabir shah

PLEADINGS

ISSUE1 –THE REPUDIATION OF MARRIAGE IS VALID

The grounds of divorce are mentioned in the dissolution of muslim marriages act, 1939

under section 2. For the purpose of this suit the relevant law i.e., sec 2 (vii) has been

reproduced, as follows :

A woman married under muslim law shall be entitled to obtain a decree for the dissolution

of her marriage on any one or more of the following grounds namely:-

vii. That she have been being given in marriage by her father or other guardian before

she attained the age of 15 years repudiated the marriage before attaining the age

of 18 years

The rest has been omitted.

Its under sub section VII that we intent to seek dissolution.

1.1 THE CRITERIA FOR OBTAINING DISSOLUTION UNDER SEC 2 (VII)

It has been mentioned in the act, 1939 that a wife can dissolve a marriage if

the situation fills three criteria:-

1. Marriage has not been consummated.

2. The marriage took place before she attained the age of 15 years,

3. She has repudiated the marriage before the age of 18 years.

As to the a fore mentioned criteria 2 and 3, the facts are very well clear.

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 Amina v. Kabir shah

She was married by her grandfather, at the age of 12years. The marriage was successfully

repudiated.

It is the 1st criteria which is at the centre of the contention. The appellant AMINA does

agree to the fact that consummation took place but not with her consent and the husband

forced his penis in her vagina. She never consented to the inter-course. And thus, the

consummation is not valid and does not affect her ground to claim for the decree of

dissolution of marriage.

It would be at this point that the appellant would like to cite a case namely, Mt. Ghulam

Sakina v. Falak Sher Allah Baksh,1 in which a girl who was married by her grandfather,

and the husband had sexual intercourse without her consent and later on the girl files for

dissolution, the Hon’ble High Court of Lahore, propounded the principle of ‘Option of

Puberty’. The court said :-

“The real significance of "option of puberty" and the manner how is it to be exercised,
seems to have been not properly grasped or appreciated. 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 VIII [8] of 1989 (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

1
AIR(1950)Lah,45

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 Amina v. Kabir shah

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. The assent should come after puberty and not before, for the
simple reason that the minor is incompetent to contract; nor should the consummation
have taken place without her consent (Baillie 1.59 and Abdul Karim v. Amina Bai 59
Bom. 426 : A.I.R 1935 Bom. 308. This assent might either be express or implied. It
might be by words or by conduct like cohabitation with the husband. It is also essential
that a girl should be aware of the marriage before she could be expected to exercise
2
her option (vide para 78) Muhammadan Law by Faiz B. Tyabji (third edition)”

It should be noted that in the present case as well the girl was married before majority,
and the consummation took place without her consent and thus, would not affect her
right to dissolve the marriage.

It is further submitted that in the case of Abdul Karim v. Amina Bai, it was ruled by the
high court of Bombay that the Under the Muhammadan law the right of a girl to
repudiate her marriage on attaining puberty is not lost by the mere fact of
consummation without her consent.

The court further said :-

“The option of repudiation given to the wife is based on principles repeatedly

emphasised in the Quran. It is one of the safeguards by which Islam alleviates the
incidence of pre-Islamic- institutions pressing harshly against women and children.
This safeguard, it is true, has suffered as many similar safeguards introduced by the
founder of Islam have suffered of. Amir-ud-din v. Khatun Bibi  I.L.R.(1917) All. 371,
375. Later developments having their origin long after the date of the Prophet and the
Khulafa-i-Rashidin, have a tendency to attenuate their beneficence by restrictions and
technicalities. I do not make these observations as a portal for escaping from the
confines of the law as expounded by the great commentators who have laid down that
the option in question must be exercised by the wife immediately on attaining puberty ;
and that it is lost if the wife permits the marriage to be consummated thereafter. But I
should certainly not like to be responsible for a decision given in contravention of the
general principles to which I have alluded and which have their due place in all texts.
Nor would it be right for me to forget that if the wife arrives at puberty while she is
living with her husband (as was the case here according to the plaintiff) her option is
not determined unless she assents explicitly or by implication to the marriage. Nor is
mere consummation sufficient. There must be consummation with the wife's consent :

2
AIR1935Bom308

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 Amina v. Kabir shah

Baillie, I, 50-51, 59. Moreover all the necessary facts must be proved by the husband to
the satisfaction -of the Court”

Therefore give all the arguments that have been presented so far it stands clear that the mere consummation
does not qualify as the ground to challenge the repudiation of marriage by wife.

Especially, when the consummation took place without the wife’s consent.

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 Amina v. Kabir shah

PRAYER FOR RELIEF

Therefore in the lights of the facts stated, authorities cited, arguments advanced, the Appellant
humbly requests the Hon’ble Court to adjudge and declare that:-

1. The decree of dissolution should be granted.

2. The respondent should bear the cost of this suit.

And, pass any order or decree in the favor of the respondent as the Court may deem fit in the
lights of Justice, Equity & Good Conscience.

All of which is most humbly prayed.

COUNSEL ON BEHALF OFAPPELLANT 7thApril. 2015

LUCKY TANDON

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