P.N. Mookerjee, J.
1. This is the plaintiff-husband's appeal against an appellate decision, dismissing his suit for restitution of conjugal rights and consequential injunction.
2. The trial court decreed the suit on certain conditions which were duly complied with by the plaintiff. On appeal by the defendants, namely, the wife and her parents and uncle, the said decree was set aside and the plaintiff's suit was dismissed. The present second appeal is directed against this dismissal and seeks restoration of the trial court's decree.
3. The relevant facts lie within a short compass and they may be conveniently stated here as follows:
Admittedly, defendant No. 1 Jinnatan Nahar was married to the plaintiff Shaib Ali Biswas in Magh1356 B. S. There was a dispute between the parties as to the wife's (Jinnatan Nahar's) age at the time of the said marriage, the plaintiff alleging that she was then 15 years 3 months old and the defendant asserting that she was then aged only just a little above 14 years or, more precisely, 14 years 2 months, as it transpired in the defence evidence. The learned Additional District Judge, -- and so also the learned Munsif, -- accepted the defendants' case on the point and found that the wife (Jinnatan Nahar) was below 15 years at the time of her marriage and, further, -- and that was the common case of the parties, -- that she was given in marriage by her father as guardian. The learned Additional District Judge has also found as a fact that the wife repudiated the marriage which, according to him, was not consummated, on her attaining puberty seven months after the marriage, namely, in Bhadra 1357 B. S., and, upon that finding, in particular, he has purported to dissolve the marriage and dismiss the plaintiff's claim for restitution of conjugal rights.
4. The above findings of fact, made by the learned Additional District Judge are not, -- as, indeed, they cannot be, -- disputed before us by the learned Advocate for the appellant husband, but he contended that, even on those findings, the plaintiffs suit cannot be dismissed. The argument is that, as, admittedly, in this case, the girl, a minor at the time of her marriage, was given in marriage by her father as guardian, the girl's (wife's) repudiation of the marriage by exercising what is usually known as the 'option of puberty' would be of no avail and would not invalidate or dissolve the marriage; or, in other words, that the 'option of puberty'' would be unavailing here as against the husband's claim for restitution of conjugal rights as the girl was given in marriage by the father as guardian.
5. There can be no question that, under the indigenous Mohammedan Law, the 'option of puberty' cannot be exercised validly by the girl (wife) to affect the marriage tie, when she was given in marriage by the father or paternal grand father as guardian, except, possibly, under very special circumstances which are, admittedly, not present in this case. The option would, of course, be available and its exercise would dissolve the marriage tie, -- at least when the matter comes up before the Court even, possibly, as a defence on the part of the girl,-- in any other case, namely, where the girl was given in marriage by a guardian other than the father or the paternal grand-father. According to the learned Additional District Judge, this distinction between the effect, validity or availability of repudiation of marriage by exercising of the 'option of puberty' between the two classes of cases aforesaid, namely, cases of father and paternal grand-father and of other person, acting as guardian in marriage, has been swept away by the new Act, the Dissolution of Muslim Marriages Act, 1939, and the point, now before us, is whether his said view is correct.
6. In our opinion, the learned Additional District Judge has misread the new Act to give it a greater effect in the above respect than what was intended by the legislature. The Act, as its preamble, in its relevant part, shows, consolidates and clarifies 'the provisions of Muslim law relating to suits fordissolution of marriage 'by'-- and this word 'by', underlined (here in ' ') by us, is, particularly, important,--women married under Muslim law..' and the relevant Section 2 is also clear that the change, if any, that was made thereby, or, the law that was enacted, declared or laid down therein, was in regard to the wife's suit for dissolution of marriage and was never meant or intended for any suit at the instance o the husband. It is true that, in the case of Muhammad Baksh v. The Crown, AIR 1950 Lah 133, an extreme view? of the law was taken, which, with or without the above Act, would support the learned Additional District Judge, -- but, with all respect to the learned Judge (Rahman J.) of the Lahore High Court, we are unable to agree with his said view. That learned. Judge relied on the preamble to hold that the new statute, the Dissolution of Muslim Marriages Act, 1939, was merely a consolidating and clarifying statute and, therefore, it only declared the law, as it was, and that, accordingly, even before the Act, the right of repudiation by exercise of the 'option of puberty' was available always and in all cases, that is, even where the girl's guardian, who gave her (the girl) in marriage, was her father or paternal grand father. In our opinion, on both, the points, Rahaman J., appears to have gone against established authorities.
7. It is to be remembered, in the first place, that it is well settled on authorities (vide for example, the Privy Council case of Secy. of State v. Maharaja of Bobbili, 46 Ind App 302 at p. 309: (AIR 1919 PC 52 at p. 53) and the English House of Lords decision in the case of Powell v. Kempton Park Racecourse Co. Ltd., 1899 AC 143 at p. 157. (Per Lord Halsbury L. C.) ) that the preamble of a statute cannot control its enacting part and would not be available for reference or exposition except in cases of ambiguity and, if the enacting part, on its clear terms, goes beyond the preamble, effect must be given to the enacting part, irrespective of the language of the preamble. It is also well-settled on authorities (vide the case of Badal Aurat v. Queen Empress, ILR 19 Cal 79 and Ss. 209 and 210 of Mulla's Mahomedan Law (12th Edn.)) that the above distinction, founded on the relationship of the guardian in marriage, in the matter of the wife's repudiation of the marriage by exercising her 'option of puberty' was a part and parcel of and fully recognised by the indigenous Mohammedan Law, It seems to us, therefore, that Section 2 of the new Act introduces and effects some change of the relative law on the point. But, for our present purpose, that is wholly immaterial, as, both on the wording of the section, and of the preamble, this new law or change of law cannot apply except in cases of suits by the wife. This is clear from the section itself and also from the preamble, which both, in their relevant parts, lay stress upon and contemplate suits for dissolution of marriage by a Muslim wife and, accordingly, we feel bound to hold that neither the learned Judge of the Lahore High Court in AIR 1950 Lah 133, supra, nor the learned Additional District Judge on the present occasion proceeded on the right view of the law on the point. The decision of the learned Additional District Judge cannot, therefore, be supported and it has to be set aside and that of the learned Munsif restored.
8. We would, accordingly, allow this appeal, set aside the decree of the court of appeal below and restore that of the learned Munsif.
9. Our present judgment, however, will not affect any right of the wife under the new Act, as construed above by us. We make this clear so that her rights under the new Act may remain unaffected and she may, if she so chooses, pursue them according to law.
10. The parties in this case will bear their own costs throughout.
11. I agree.