JUDGMENT V.P. Gopalan Nambiyar, J. 1. The courts below concurred in granting a decree for dissolution of marriage in a suit filed by a Muslim wife against her husband. The aggrieved husband has preferred this second appeal. Dissolution of the marriage was sought on the two grounds mentioned in section 2 (vii) and 2 (viii) (a) of the Dissolution of Muslim Marriages Act, 1939 (referred to, for short, as the Act). Briefly stated, the grounds are: that the plaintiff having been given in marriage before attaining fifteen years of age, had repudiated the same before attaining eighteen years, the marriage not having been consummated section 2 (vii); and that the defendant had been habitually assaulting the plaintiff or making her life miserable by cruelty of conduct. 2. The marriage was on 17th October 1968. According to the plaintiff, at the time of the marriage, she was about fourteen years and three months, and had not attained puberty. According to the defendant on the other hand, she was nearly twenty years and had attained puberty. The plaintiff's further case is as follows: The 'Veedukudal' (the coming home to the bride's house) was only on 9th October 1969; it was delayed on account of non-payment, and certain disputes about payment, of a sum of Rs. 10,000, promised by the plaintiff's father to the defendant. On 10th October 1969, i.e. the next day after the home-coming ceremony, the plaintiff went to the defendant's house, and came back the next day, to her own house. The defendant did not come to the plaintiff's house. On 25th August 1970, the plaintiff was sent to the defendant's house, with a promise that Rs. 10,000 would be paid the next day. This was done. The plaintiff stayed on for ten days in the defendant's house and returned to her own on 6th September 1970. During this period of her stay she was treated cruelly. On 24th July 1971, the defendant sent Ext. A-5 notice dated 24th July 1971 threatening the plaintiff with legal proceedings in the event of her not rejoining him with the articles stated to have been taken away by her. This was followed immediately thereafter by the institution of Ext. A-7 plaint dated 26th July 1971, for the injunction to restrain the plaintiff from contracting, as reported, a second marriage. Ext. B-1 dated 3rd August 1971 is the plaintiff's reply to Ext. A-5. This was followed immediately thereafter by the institution of Ext. A-7 plaint dated 26th July 1971, for the injunction to restrain the plaintiff from contracting, as reported, a second marriage. Ext. B-1 dated 3rd August 1971 is the plaintiff's reply to Ext. A-5. By the time Ext. B-1 was sent, the plaint in the present suit seems to have prepared on 2nd August 1971, although it was filed only on 6th August 1971. 3. The defendant's case, in short, is that on the very night of the marriage, namely, 16th October 1968 by about 11.30 p.m. the plaintiff was taken to his house, that they lived amicably till 16th July 1971, that the plaintiff's father was attempting to create a rift in the lute in their domestic relations and happiness, and is really responsible for the present suit, solely engineered by him. The plaintiff left his house on 16th July 1971, and despite several entreaties and attempts made by him, she refused to come back to his house; but at the instigation and advice of her father, she was proposing re-marriage, as a result of which Ext. A-7 suit was launched, which provoked, in its turn, the present suit. The defendant would allege that the marriage was not only consummated, but that the plaintiff conceived, and there was an abortion, for which she had to be medically treated. It was contended that the plaintiff herself had not repudiated the marriage as required by section 2 (vii) of the Act, and that she was only a tool in the hands of her father. The allegation of cruelty was denied. 4. Both the courts below concurrently found that the plaintiff was born on 14th July 1954, and therefore married before attaining fifteen years of age; that the marriage had not been consummated; and that the plaintiff had repudiated the marriage as required by section 2 (vii) of the Act. They also found that the cruelty pleaded by the plaintiff had been established. 5. It is useful to extract clauses (vii) and (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939. They also found that the cruelty pleaded by the plaintiff had been established. 5. It is useful to extract clauses (vii) and (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939. "(2) 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: (i) to (vi): * * * * * (vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years; Provided that the marriage has not been consummated; (viii) that the husband treats her with cruelty that is to say,” (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (b) associates with women of evil repute or leads an unfamous life, or (c) attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal rights over it, or (e)obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunction of the Quran." Under section 2 (vii) of the Act, the three conditions to be established are: (1) that the marriage was celebrated before the plaintiff attained fifteen years of age; (2) that it was repudiated by her before she attained eighteen years of age; and (3) that it had not been consummated. On the first of these aspects, there is the concurrent findings of both the courts below that the plaintiff was born on 14th July 1954. This was based on Ext. A-1, an extract from the birth register relating to the plaintiff, maintained by the Sub Registry Office, Kasaragod. The trial court in paragraph 8 of its judgment has noticed that the original register was summoned by the plaintiff by LA. No. 1236 of 1971 and brought to court; and returned after preparation of the certified copy marked Ext.. A-1. Ext. A-1 mentions the plaintiff by name, her date of birth as 14th July 1954, and that the informant about the birth was her father Mahammad Beary. No. 1236 of 1971 and brought to court; and returned after preparation of the certified copy marked Ext.. A-1. Ext. A-1 mentions the plaintiff by name, her date of birth as 14th July 1954, and that the informant about the birth was her father Mahammad Beary. Supporting evidence about the birth of the plaintiff has been afforded by the Village Officer, P.W. 3 as the custodian of the record, and by maternal uncle of the plaintiff as P.W. 5. Comment was made about the non-examination of the plaintiff's father who is shown as the informant of the birth, and alleged to be the real person behind the suit. After duly taking these facts into account, both the courts below have chosen to accept the evidence afforded by Ext. A-1 and by the two witnesses as to the plaintiff's date of birth. We see no grounds to disagree with this finding of the courts below. The first of the conditions to attract section 2 (vii) is therefore satisfied. 6. The next question is: Was the marriage consummated? Both the courts below on an analysis of the evidence, have chosen to believe the plaintiff's version as to the date of leaving to the plaintiff's house after marriage and the period of co-habitation between the parties. We see no reason to disturb this finding of fact. That means that the parties lived together in the defendant's house for about ten days from 25th August 1970 to 5th September 1970. The defendant-appellant can certainly count this fact in his favour as an important circumstance from which to draw the presumption or inference that the marriage had been consummated. But, as rightly noticed by the courts below, we think that this is more than outweighed by the defendant's own admission in the box as D.W. 1, that for sexual intercourse the bride should have attained maturity. The plaintiff's evidence is that she attained maturity in November 1970, when she was past 16 years. The defendant himself in his evidence admitted that she attained puberty when she was 16; only he would say, that she had reached this age four years before her marriage, which, according to him was in her 20th year. In the light of the finding as to the plaintiff's date of birth, we agree with the courts below in holding that she attained puberty only in November 1970. In the light of the finding as to the plaintiff's date of birth, we agree with the courts below in holding that she attained puberty only in November 1970. We agree also with the finding of the courts below that the marriage between the parties was not consummated. 7. We note that there were attempts on both sides to buttress up their respective cases by examining medical experts. On the side of the plaintiff P. W.2 was examined to show that she was a virgin; and on the side of the 'defendant D.W. 2 was examined to show that she was treated by him for abortion. We agree with the courts below that D.W.2's evidence is unacceptable. He stated that he had not seen the person whom he treated, who was wearing a burka on her face. He could also not produce any records to show that she was treated by him. In the face of these, the courts below were right in not accepting the testimony of D.W. 2. Regarding P.W. 2, the trial court was prepared to accept his testimony; but the lower appellate court felt that the path of prudence lay in not setting much store by the same. We are not inclined to disturb this assessment of evidence. 8. The third aspect is whether the marriage had been repudiated by the plaintiff before she attained eighteen years of age. Counsel for the appellant contended that under section 2 (vii) of the Act, the repudiation must be by the wife herself, and that in the instant case this requirement has not been satisfied. It was argued that paragraph 8 of the plaint embodies the repudiation of the marriage, and that the plaint had been signed and filed by the guardian, the father, alleged by the appellant to be behind the suit. The repudiations by the guardian, in the circumstances, it was said, would not satisfy the requirement of section 2 (vii) of the Act. Support was sought to be derived for this proposition from section 2 (a) of the Indian Majority Act, 1875 which provides that nothing contained in that enactment shall affect the capacity of a person to act in the following matters, namely, marriage, dower, divorce and adoption. Support was sought to be derived for this proposition from section 2 (a) of the Indian Majority Act, 1875 which provides that nothing contained in that enactment shall affect the capacity of a person to act in the following matters, namely, marriage, dower, divorce and adoption. This, it was said, statutorily recognised and sanctioned that a person who was not a major according to the Indian Majority Act, still had the capacity to act in matters relating to marriage etc. Therefore, the argument proceeded, a person like the plaintiff, who had become a major under the Mohammedan Law (by attainment of puberty or completion of 15 years whichever is earlier), was a fortiori competent to repudiate the marriage herself. It was even said that she should institute the suit for dissolution of marriage herself, without the intervention of, or representation by, the guardian. The provisions of Order 32 of the Civil Procedure Code which requires suits on behalf of minors to be instituted by a guardian and which confers a right on the defendant to have the suit taken out of the file if not so instituted, was, it was said, inapplicable to the case of one who had become major according to Muslim law. L seems to us that section 2 (a) of the Indian Majority Act is an enabling provision which saves the capacity of any person not a major under the Act to act in the matters specified. Assuming that the right " to act " in the specified matters includes a right to institute suits in regard to them, we see nothing, and were shown nothing, to hold that the right of a person not a major under the Indian Majority Act, to act, or to sue, through a guardian, has either been destroyed or lost. We are therefore inclined to think that the right saved by section 2 (a) of the Indian Majority Act is only supplemental to the right under the general law, of a minor to act through a guardian, and not one in displacement or substitution of it. For the purposes of this case we need not venture a final opinion, and we guard ourselves against doing so. 9. For the purposes of this case we need not venture a final opinion, and we guard ourselves against doing so. 9. In Abdul Azeez v.Patkumma Bi 1952 Madras 754 Rajamannar, C.J. and Venkitarama Iyer, J. on an examination of the provisions of the Indian Majority Act, held that a Muslim woman who is a major according to the personal law, but a minor under the Indian Majority Act, does not cease to be a minor by reason of the exception embodied in section 2 (a) of the Majority Act. That provision, it was said, only saves the capacity of a person to act in certain matters; but does not, in any way affect the disability of a minor under the Indian Majority Act to institute a suit, except in accordance with Order 32, of the C.P.C. Following an earlier ruling of a Division Bench in Ithayi Ummah v. Kairhirapokoil 3 Madras 248 it was ruled that, on a plain reading of section 2 (a) and 3 of the Indian Majority Act, and Order 32, rule 1 of the C.P.C. only one conclusion was possible, namely, that the suit by a person who is a minor within the definition of section 3 of the Indian Majority Act, cannot be instituted except by the next friend of the person. 10. The same view as above, was taken in UsmanAli Khan v. Mt. Khatoon Banu A.I.R. 1942 Oudh.343 and in Najmunnissa Begum v. Sirajuddin Ahmad Khan A.I.R 1939 Pat.1230 (133), and by the Rangoon High Court in Maung Tun Aung v. Ma Ekyt 14 Rangoon 215. A contrary view, it was urged, has been taken by the Bombay, Allahabad, Calcutta and the Jammu and Kashmir High Courts. In Ahmed Suleman Vohira v. Mt. Bat Fatma A.I.R. 1931 Bomb.76, it was ruled that a Muslim wife who is a major under the Muslim law, but not in the sense of Indian Majority Act is entitled to sue for divorce without a guardian. In Casim Husain Beg v. Bibi Kaniz Sakina A.I.R. 1972 Allahabhbad 649 Sulaiman, C. J. and Iqbal Ahmed, J. ruled that a major under the Muslim law but not in the sense of Indian Majority Act, is competent to settle a contract of dower, himself, without the intervention of a guardian. In Casim Husain Beg v. Bibi Kaniz Sakina A.I.R. 1972 Allahabhbad 649 Sulaiman, C. J. and Iqbal Ahmed, J. ruled that a major under the Muslim law but not in the sense of Indian Majority Act, is competent to settle a contract of dower, himself, without the intervention of a guardian. In Naksetan Bibi v. Habibar Rahaman Mandal A.I.R.1948 Cal.60 a learned Judge of the Calcutta High Court ruled that 1973 a suit by a Muslim girl who had attained majority under the Muslim law, but not under the Indian Majority Act, instituted without a guardian was proper. In Abdullah Dar v. Mt. Noori A.I.R.1964 J & K 60 the divergence of judicial opinion as to whether a major under the Muslim law but not within the meaning of Indian Majority Act, can institute a suit without intervention of a guardian, is noticed. The view expressed was that a suit by such a person is maintainable by reason of the exception to section 2 (a) of the Indian Majority Act. None of these decisions lay down that if a suit is instituted by such a person through a guardian, the same would not be competent. Were it necessary to express a definite and final opinion on the point, we would have been inclined to hold that while a major under the Muslim law but not under the Indian Majority Act may be entitled to institute a suit without the intervention of a guardian, such a person is not precluded from instituting a suit also in the ordinary way through a guardian under Order 32 of the C.P.C. Such a view would at least leave it open to the person concerned, to come on record in the suit in cases where allegations are made that the person is under the influence of the guardian. 11. On the facts of this case, it is quite unnecessary to be categoric about the right to institute the suit. The objection that the suit had not been properly instituted was not taken by the appellant either in the first court or in the appellate court; nor even specifically in the grounds of appeal before us. It is unfair to allow this plea at this belated stage, and we are not prepared to do so. The objection that the suit had not been properly instituted was not taken by the appellant either in the first court or in the appellate court; nor even specifically in the grounds of appeal before us. It is unfair to allow this plea at this belated stage, and we are not prepared to do so. We may note also, that pending suit, the plaintiff had become a major, and the plaint was amended declaring her as such, by order dated 7th October 1972. 12. It was then contended that the exercise of the option of repudiation under section 2 (vii) of the Act, must be by the wife herself, and that, in the instant case, it was by her guardian, the father, and that this would not satisfy the requirements of the law. We have little doubt that the exercise of the option of repudiation must be by the wife herself. Here again, the point was not specifically urged, in either of the courts below, that the plaintiff had not herself repudiated, although, the plea, in an alternative form, was raised in paragraph 14 of the written statement, to cover the point now raised. The main defences were that the plaintiff was a major, and had attained puberty at the time of the marriage, and the marriage was consummated. After developing these, paragraph 14 added that even if she was below 15 and there was repudiation, the same was not by the plaintiff, but was unlawfully thrust on her by the guardian. We are satisfied that there is no substance in this plea. The plaint, in paragraph 8 stated that the marriage was thereby being repudiated (namely by the institution of the suit itself). We have no doubt that the filing of the suit is sufficient to constitute a repudiation. There was no argument contra. The plaintiff, as P.W.1 stated at the end of her examination that the suit was filed at her instance on instructions given by her to her father. The plaintiff was declared major and the plaint was amended by order dated 7th October 1972, and her examination was on 8th October 1972. There was no argument contra. The plaintiff, as P.W.1 stated at the end of her examination that the suit was filed at her instance on instructions given by her to her father. The plaintiff was declared major and the plaint was amended by order dated 7th October 1972, and her examination was on 8th October 1972. From the practical point of view also, we do not think it was necessary for a Muslim girl such as the plaintiff, to proceed herself to her lawyer to instruct him in regard to the preparation of the plaint, and to convey repudiation of the marriage in person. It was enough if she conveyed her wishes and her instructions to her father, for the purpose of being conveyed to Counsel. That was done in this case, and we are satisfied that there was a proper and valid repudiation by the plaintiff. 13. We are not satisfied, however, that the ground under section 2 (viii) (a) of the Act has been established. That section requires that the husband should have habitually assaulted his wife or made her life miserable by cruelty of conduct. The only acts of cruelty found by the courts below are that during the period of about 10 days for which the plaintiff lived with the defendant in the latter's house, she was made to do manual labour such as dehusking paddy, and washing clothes of all the individuals in the household. In addition, evidence was offered to show that on one occasion she was beaten on the cheek with chappals for serving impure matter in the food, and on another occasion, was made to stand for hours, neck-deep in a tank. This last incident was rightly disbelieved by the court below, and hardly calls for notice. The beating with the chappals was a stray incident which cannot amount to a habitual assault or cruelty of conduct within the meaning of section 2 (viii) (a) of the Act. The other aspects of cruelty, namely, dehusking paddy and washing clothes, can hardly answer the requirements of the section. At the most, they can only amount to certain burdensome duties thrown upon a house-wife, and no work. We cannot accept the finding of the courts below that the ground for dissolution of marriage under section 2 (viii) (a) of the Act, has been established. At the most, they can only amount to certain burdensome duties thrown upon a house-wife, and no work. We cannot accept the finding of the courts below that the ground for dissolution of marriage under section 2 (viii) (a) of the Act, has been established. But the decree for dissolution can well be sustained under section 2 (vii) of the Act. 14. We dismiss this second appeal, but make no order as to costs.