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Hanufa Bibi Vs. Mokshed Ali Mondal and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 77 of 1960
Judge
Reported inAIR1961Cal59,64CWN786
ActsMajority Act, 1875 - Section 2; ;Guardians and Wards Act
AppellantHanufa Bibi
RespondentMokshed Ali Mondal and anr.
Appellant AdvocateBenoy Bihari Sen and ;Manan Kumar Ghose, Advs.
Respondent AdvocateAmar Nath Roy Chowdhury, Adv. for Opposite Party No. 2
Cases ReferredAchia Khatoon v. Abdul Hai
Excerpt:
- .....baivu bibi, opposite party no. 2, as next friend of the plaintiff-petitioner hanufa bibi in the divorce suit, being title suit no. 10 of 1957, instituted by her against opposite party no. 11 mokshad ali mondal, and a subsequent order of the learned subordinate judge dated 24th november 1959 by which he rejected the petition of the plaintiff-petitioner for review of the earlier order appointing her mother lal banu as her next friend, originally the suit was filed on 1st february 1957 by the petitioner, represented by her paternal uncle mansur ali mondal, and therein it was stated that the then age of the petitioner was 13 years. accordingly, at the time when the mother lal banu, after having been appointed certificated guardian under the guardians and wards act, applied to the court.....
Judgment:

S.K. Sen, J.

1. This revisional application is directed against an order of the learned Subordinate Judge, 7th Court, Alipore dated 29th June, 1959 by which he appointed Lal Baivu Bibi, Opposite Party No. 2, as next friend of the plaintiff-petitioner Hanufa Bibi in the divorce suit, being title suit No. 10 of 1957, instituted by her against opposite party No. 11 Mokshad Ali Mondal, and a subsequent order of the learned Subordinate Judge dated 24th November 1959 by which he rejected the petition of the plaintiff-petitioner for review of the earlier order appointing her mother Lal Banu as her next friend, Originally the suit was filed on 1st February 1957 by the petitioner, represented by her paternal uncle Mansur Ali Mondal, and therein it was stated that the then age of the petitioner was 13 years. Accordingly, at the time when the mother Lal Banu, after having been appointed certificated guardian under the Guardians and Wards Act, applied to the Court for being substituted as next friend of her daughter -- the plaintiff-petitioner -- in place of her paternal uncle, the petitioner was over 15 years of age and therefore she had attained majority according to Muslim law.

2. It appears that the mother's application was opposed on the contention that the plaintiff-petitioner having attained majority under her personal law could act in the matter of divorce by herself without any next friend, and the appointment of the mother as next friend should therefore be refused and she should be permitted to act for herself without any next friend. This contention wag rejected by the learned Subordinate Judge on the ground that the mother had been appointed as certificated guardian under Guardians and Wards Act, and on the further ground that originally when the suit was filed the plaintiff-petitioner did not sue by herself but sued through her paternal uncle as next friend.

3. It is against that order and the subsequent order refusing to review the order that this revisional application has been filed. As regards the ground given by the learned Subordinate Judge that originally the plaintiff did not Sue herself but through her paternal uncle, it would appear that when the suit was filed on 1st February, 1957 she was 13 years of age and not 15 years, and therefore, she had not attained majority according to her personal law. At that stage, therefore, a next friend was necessary; but the next friend could be dispensed with as soon as she attained the age of 15 years, provided in the matter of divorce it is found that a girl who has attained majority according to her personal law can sue without next friend.

4. On this point Mr. Benoy Behari Sen for the petitioner has referred us to Section 2(a) of the Indian Majority Act 1875 which provides that nothing in the Act shall affect the capacity of any person to act in the following matters, viz., marriage, dower, divorce and adoption. For all other purposes under the Indian, Majority Act, when a certificated guardian has been appointed, the age of majority is 21 years, and where no such guardian is appointed the age of majority is 18 years. But for the purpose of acting in respect of marriage, dower, divorce and adoption, this age of majority as fixed by Indian Majority Act, 1875 does not apply. In respect of a Muslim girl she attains majority under the Muslim law on attaining puberty or on attaining the age of 15 years -- whichever is earlier. It has been held that in spite of the provisions of Order 32 of the Civil Procedure Code, a Muslim woman who is major according to her personal law but minor according to the Majority Act may sue without next friend in the matter of divorce or dissolution of marriage. On this point there is a decision in Nakistan Bibi v. Habibar Rahaman, 50 Cal WN 689, a decision by Akrarn, J. who held that a Muslim girl who has attained puberty is herself competent to sue for dissolution of marriage without a next friend as required by Order 32, Rule 1 of the Code of Civil Procedure although she may be below 18 years of age. His Lordship followed a decision of the Bombay High Court, viz. Ahmed Sulaiman v. Bai Fatma, ILR 55 Born. 160: (AIR 1931 Bom 76) which was a decision by a Division Beach and where it was held that under the Mohamedan law a wife of 16 years of age was entitled to sue for divorce without a next friend by virtue of Section 2(a) of the Indian Majority Act. The same principles were followed by Das Gupta, J. in Achia Khatoon v. Abdul Hai, : AIR1952Cal381 .

5. We must therefore clearly hold that at the stage when the mother, viz. Opposite Party No. 2, applied for being substituted as next friend, the petitioner having already completed the age of 15 years was competent to act in the matter of divorce suit without any next friend, and it was therefore not necessary that any next friend should be appointed for her. The proper order of the learned Subordinate Judge therefore would have been to refuse the application of the mother and at the same time delete the name of the paternal uncle who had originally been representing the plaintiff-petitioner as next friend.

6. Accordingly, this rule is made absolute and the orders of the learned Subordinate Judge complained against are set aside and it is ordered that the application of the mother. Opposite Party No. 2, for being appointed as next friend be rejected and the petitioner be permitted to act for herself in divorce suit. No order is made as to costs.

7. It may be mentioned that this order in no way takes away the force of the appointment of the Opposite Party No. 2 as certificated guardian under the Guardians and Wards Act. Such an appointment if lawfully made is valid for all purposes except to the extent provided in Section 2(a) of the Indian Majority Act. viz. in spite of appointment of such a certificated guardian a minor girl who has attained majority according to her personal law can act independently in the matter of her divorce or marriage.

N.K. Sen, J.

8. I agree.


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