1. This appeal by the plaintiff arises out of an order of remand passed in a suit for dissolution of marriage under Act 8 [VIII] of 1939.
2. Shortly stated, the material facts of the case are as follows: Plaintiff was born in 1929 and married to the defendant in 1937; there was disagreement between the parties and the plaintiff instituted the present suit in 1943 on diverse grounds for the dissolution of her marriage. One of the pleas, amongst others, taken by the defendant husband in his defence was that the plaintiff being a minor could not bring the suit without a next friend and the suit as framed was therefore not maintainable; the issue raised in this connection was issue 1, namely, 'is the suit maintainable in the present form?' Regarding this issue, which was tried along with the other issues in the case, the learned Munsif observed as follows:
there is no defect in the framing of the suit. The issues framed by mo are answered by me thus (1) the suit is maintainable in the present form....
and upon his finding in favour of the plaintiff in respect of the other issues also, he decreed the suit. The defendant thereupon appealed and the learned Judge in the Court of appeal below by his order dated 16th March 1944, set aside the judgment and the decree of the trial Court and remanded the case for a fresh trial observing in the course of his judgment as follows:
the defendant in para. 3 of his written statement has taken the objection that the suit cannot be maintained by the plaintiff as she is still a minor. An issue was accordingly raised whether the suit is maintainable in the present form. Unfortunately, however this point has been completely overlooked by the learned Munsif. The defendant in his ground of appeal has taken the selfsame objection.
He, also by his order dated 13th March 1944 allowed the amendment of the memorandum of appeal and the plaint by putting therein the father of the plaintiff as her next friend and guardian. Against the order of remand, the plaintiff has preferred the present appeal and has objected therein in her grounds of appeal to the order of amendment of the plaint and the memorandum of appeal, which was passed by the learned Judge. The defendant also has filed a cross-objection against the decision of the Court of appeal below.
3. It is urged by the learned Advocate for the appellant that the Court of appeal below had failed to notice that the trial Court had recorded its finding as to the maintainability of the suit by holding that the suit as framed was maintainable while deciding Issue 1. It is further urged that in view of Section 2, Majority Act, 9 [IX] of 1875 the Court of appeal below is in error in holding that the plaintiff was not entitled to sue without a next friend despite Order 82, Rule 1, Civil P.C. It is pointed out that the plaintiff who was a Muslim girl, having attained her puberty as found by the trial Court, ceased to be a minor under her personal law, and was competent to sue in her own name. Reference in this connection was made to the cases in Ahmed Sulaiman v. Mt. Bai Fatma 18 A.I.R. 1931 Bom. 76, Mt. Fatma Khatun v. Fazlul Karim : AIR1928Cal303 , Shrinbai v. Khurshedji ('98) 22 Bom. 430 and Mt. Atia Begum v. Mahomed Ibrahim ('16) 3 A.I.R. 1916 P.C. 250. On the other hand, it is urged by the learned Advocate for the respondent that Section 2, Majority Act, 9 [ix] of 1875, does not obviate the necessity of appointing a next friend or a guardian of a person below the age prescribed as his age of majority under Section 3, Majority Act; and all that it does is to confer competency on the minor to enter into certain transactions which would be forbidden to him under Section 11, Contract Act. It is said that capacity to contrast is something different from capacity to sue and Section 2, Majority Act, does not affect Order 32, Civil P.C. which must be complied with. Furthermore, it is argued that in any event a suit for dissolution of marriage does not cover 'the capacity of any person to act in the matter of marriage' as contemplated under Section 2, Majority Act, 9 [IX] of 1875; and reference is made to the cases in Puyikuthithayi Umah v. Kairhirap-okil Mamud ('81) 3 Mad. 248 and Usman Ali Khan v. Mt. Khatun Banu 29 A.I.R. 1942 Oudh 243.
4. It is obvious that the question of the maintainability of the suit was decided by the trial Court while recording its decision on issue 1, although no reasons were assigned in support of it. The remark therefore made by the learned Judge to the effect that this point had been completely overlooked by the learned Munsiff does not seem to me to be justified; however, the matter in my opinion depends entirely upon the construction to be placed on Section 2, Clause (a), Majority Act. The material portion of that section runs as follows:
Nothing herein contained shall affect the capacity of any person to act in the following matters, namely, marriage, dower, divorce and adoption.
Section 3 of the said Act which prescribes the age of majority as 18 years and in certain circumstances 21 years begins with the opening words 'subject as aforesaid,' which means subject to Section 2 aforesaid. The question, therefore, which arises is whether the institution of a suit by a (Muslim minor girl, who has attained her puberty, for dissolution of marriage is a matter covered by the expression 'the capacity of any person to act in the matter of marriage, divorce etc.,' mentioned under Section 2, Majority Act; as observed in Shrinbai v. Khurshedji ('98) 22 Bom. 430 that the Majcrity Act does not use the expression 'capacity to contract,' but 'capacity to act' 'which is of much wider import.' I am also inclined to think that the section does not merely create certain exceptions to Section 11, Contract Act, but the words 'to act' are wide enough to include in it the institution of a suit by a minor, who under her personal law may have attained majority. This view of the matter also finds support from the case in Ahmed Sulaiman v. Mt. Bai Fatma 18 A.I.R. 1931 Bom. 76. It would be profitable in this connection to refer also to the case in Mt. Fatma Khatun v. Fazlul Karim : AIR1928Cal303 . Considering everything, I am of opinion that the contention put forward by the appellant is well founded and should be given effect to. It should be noted that the ease in Puyikuthithayi Umah v. Kairhirap-okil Mamud ('81) 3 Mad. 248 was for recovery of stridhan also and clearly would not be covered by Section 2, Majority Act. This case has been discussed and noticed in Shrinbai v. Khurshedji ('98) 22 Bom. 430 at p. 436 and distinguished. To institute a suit for dissolution of marriage is clearly in my opinion to act in the matter of marriage.
5. I, accordingly, allow this appeal, set aside the judgment and decree of the Court of Appeal below and direct that the appeal be re-heard and disposed of on the merits in accordance with law.
6. The order of the amendment of the plaint and the memorandum of appeal, dated 13-3 1944, must as a result of my decision, be also set aside.
7. The appellant is entitled to her costs in this Court, which I assess at three gold mohurs.
8. In view of my decision in the appeal the cross-objection by the defendant is dismissed, but there will be no order as to costs.
9. No order is necessary on the application filed in the alternative under Section 115, Civil P.C.
10. Leave to appeal under Clause 15, Letters Patent prayed for is refused.