MAHESHWARI, J. - (1.) This appeal under Section 19 of the Family Courts Act has been preferred by the husband-Mustafa against the judgment and decree dated 6-11-2004 passed by the Judge, Family Court, Jodh-pur in Civil Original Suit No. 106/2002, whereby the learned Judge accepted the petition for dissolution of marriage submitted by the wife-Khursida under the provisions of the Dissolution of Muslim Marriages Act, 1939 ('the Act of 1939' hereinafter).
(2.) Brief facts relevant for the present appeal are that the respondent submitted a petition before the Family Court, Jodhpur on 6-5-2002 seeking dissolution of her marriage with the appellant contracted by her parents on 15-10-1992 fundamentally on the ground that she was 7 years 23 days of age at the time of the marriage, her date of birth being 23rd September, 1985 which was also entered in the passport of her mother. According to the respondent, the marriage was never consummated and there was no cohabitation ever between the parties; that her Nikah with the appellant was carried out at the time when she was only 7 years of age (and has not even attained puberty). She claimed that she was now 17 years of age but has not reached 18 years of age; her Nikah was not with her independent consent and that the marriage between the parties was not of equal rank and was disad- vantageous to her future life and, therefore, she has not accepted this marriage and exercising the option of puberty (Khyar-ul- bulugh), she has repudiated the marriage and, therefore, the marriage between the parties deserves to be dissolved on account of this repudiation.
(3.) The petition was opposed by the appellant-husband controverting all the basic facts except marriage. The appellant denied that the wife Khursida was only 7 years and 23 days of age at the time of Nikah or that her date of birth was 23rd September, 1985. Entry of such date of birth in the passport of her mother was also denied. It was averred that the parties were professing the Muslim religion and the age of the party concerned is entered in Nikahnama at the time of the Nikah and so far remembered by him, in the Nikahnama his age was entered as 15 years and that of the respondent as 13 years but the Kazi concerned having been engaged by the applicant's party, was not delivering the copy of the Nikahnama. The mainstay of the averments of the appellant has been that although the respondent has come forward with the case of Khyar-ul-bulugh but the same was fundamentally incompetent for her having already crossed the age of 18 years at the time of filing of the petition.;