JUDGMENT Deoki Nandan, J. - This is a plaintiffs first appeal from an order of the Court of the District Judge, Rampur, allowing the respondents' appeal from a decree for restitution of conjugal rights in the plaintiff's favour and remanding the suit for a fresh trial. 2. The factum of the marriage was admitted. The first respondent, who is the wife, pleaded that she was less than 15 years of age at the time of the marriage on the 26th May, 1975, and the marriage having been settled by her mother, defendant-respondent No. 2, she repudiated it in exercise of her option of puberty. The plaintiff's case that the marriage had been consummated or that she had excused the payment of prompt dower was denied and it was pleaded that after the marriage the first defendant-respondent continued to live at her mother's place and since the plaintiff used to ask for money from the first defendant-respondent's mother and used to threaten them, she repudiated the marriage in exercise of her option of puberty. 3. It is not necessary for the purposes of disposal of this appeal to go into further details of the pleadings. It is sufficient to say that the parties went to trial on the following issues : "I. Whether the defendant No. 1 has been kept aloof from the society of plaintiff without any reasonable and probable cause ?" "2. Whether the defendant No. I has exercised her right of repudiation after attaining puberty ? If so its effect ?" "3. Whether the plaintiff is entitled to any other relief?" 4. The trial Court found in the course of consideration of issue No. 2, which it took up first, that the marriage had been consummated; that there was no 89 reliable evidence to show the date of birth or the correct age of the first defendant-respondent at the time of marriage, but went on to hold that in its opinion, the defendant was proved to have been 18 years of age at the time of marriage, and that the dissolution of the marriage by the first defendant-respondent, in exercise of her option of puberty, was not proved in accordance with law. The trial Court then went on to consider the effect of the fact that the right to have a marriage dissolved, in exercise of option of puberty, was made a statutory right under Clause (vii) of Section 2 of the Dissolution of Muslim Marriages Act, 1939, and held that it was necessary for the first defendant-respondent to have obtained a decree for dissolution of her marriage in exercise of the option of puberty if that was so and the first defendant not having done so, the marriage contracted between the parties on the 26th May, 1975 continued to subsist in law. In the result, the trial Court answered issue No. 2 in favour of the plaintiff and against the defendants. On issue No. 1, the trial Court found that the first defendant-respondent was living at her parents' place without any reasonable excuse and also answered that issue in the plaintiff's favour. On issue No. 3 the trial Court found that the plaintiff was entitled to restitution of conjugal rights and decreed the suit. 5. The first defendant appealed to the District Court from that decree. The learned District Judge observed that it was the plaintiff's allegation that dower was fixed at Rs. 10,000/- but the first defendant had "relinquished it as an act of her pleasure," that the first defendant had disputed this allegation and that it was a duty of the plaintiff to establish it, but not a word was said by him in evidence about "the dower debt having been relinquished." According to the lower appellate Court, the plaintiff was, in that view, not entitled to get a decree of restitution of conjugal rights. The complaint before the lower appellate Court appears to have been that proper issues were not framed in the case, and that there was no proper trial. The complaint before the lower appellate Court appears to have been that proper issues were not framed in the case, and that there was no proper trial. The lower appellate Court proceeded to observe that it was as much the plaintiff's duty to have a proper issue framed on the question of relinquishment of dower and lead evidence, that assuming for the sake of argument the marriage had been consummated and the option of puberty had not been exercised the unconditional decree in favour of the plaintiff is legally unsustainable, "and that the proper thing for the trial Court was," to frame specific and clear issues on material points and not frame a vague and general issue and cover several points of law and fact therein." According to the lower appellate Court, "it would have been much better had the learned trial Court framed and tried clear issues on the point of puberty, exercise of option of puberty as also on the disputed question of relinquishment of dower debt." The lower appellate Court then proceeded to observe that, "it is true that evidence on the point of age and consummation was led and these issues have been-contested but as already noted so far as the question of relinquishment of dower debt is concerned, which was such a crucial question in the matter of grant of decree of restitution of conjugal rights, neither a word of evidence was led nor a finding was recorded and yet the decree in favour of plaintiff was granted." It further appears that a document was admitted by the lower appellate Court for proving that the date of birth of the first defendant was 1st July, 1970 and that, therefore, she was less than 15 years of age at the time of marriage. On that, the lower appellate Court thought that both the parties should be allowed an opportunity to lead further evidence. 6. Mr. B.D. Mandhyan, appearing for the plaintiff-appellant, contended that the remand of the suit for purposes of giving the parties an opportunity to lead fresh evidence on the question of age was wholly uncalled for. On that, the lower appellate Court thought that both the parties should be allowed an opportunity to lead further evidence. 6. Mr. B.D. Mandhyan, appearing for the plaintiff-appellant, contended that the remand of the suit for purposes of giving the parties an opportunity to lead fresh evidence on the question of age was wholly uncalled for. It was pointed out that under the law, even if the first defendant-respondent was less than 15 years of age at the time of marriage and, having been given in marriage by her father and other guardian, she had repudiated the marriage before attaining the age of 18 years, it was necessary to establish that the marriage had not been consummated and even that was not sufficient; the wife, who wanted to repudiate the marriage by exercising the option so given to her under Clause (vii) of Section 2 of the Dissolution of Muslim Marriages Act, 1939 had to follow it up by having the marriage dissolved by decree of Court. She could not just sit at home and do nothing and plead the exercise of the option by way of defence in a suit for restitution of conjugal rights. 7. According to the learned counsel, that being so, and the trial Court having clearly recorded the finding that the marriage had been consummated, there was no question of remanding the suit for an inquiry about the age of the first defendant or the question whether she had repudiated the marriage by exercising her option of puberty. The suit could have been remanded, if at all, only for inquiry into the question whether the dower had not been relinquished as claimed by the defendants, if the first defendant had pressed in issue on that point but, in view of her defence that she had repudiated the marriage, the question of claiming dower did not simply arise, and no issue having been raised on that point, no evidence was led. 8. Having heard the learned counsel for the parties, it does appear to me that the remand of the suit for purposes of enquiring into the age of the first defendant-respondent at the time of marriage, or for finding out whether she repudiated the marriage by exercising her option of puberty is not justified. 8. Having heard the learned counsel for the parties, it does appear to me that the remand of the suit for purposes of enquiring into the age of the first defendant-respondent at the time of marriage, or for finding out whether she repudiated the marriage by exercising her option of puberty is not justified. The right of a Muslim girl married before having attained puberty by a guardian other than her father or grand-father, was transformed, under Clause (vii) of Section 2 of the Dissolution of Muslim Marriage Act, 1939, into a ground, on which a Muslim woman could obtain a decree for dissolution of her marriage, obviously by institution of a suit for that relief. The content of the right was also changed, in as much as, under the law, as it stood before that Act, a Muslim girl, whose marriage was contracted by her father or father's father, could not repudiate her marriage on attaining puberty except under very special circumstances, such as fraud or negligence, or if she were married to lunatic. It was only in cases of marriage brought about by guardians other than the girl's father or father's father that she could repudiate it on attaining puberty. There was the added requirement that she should repudiate the marriage without unreasonable delay after being informed of the marriage and of her right t3 repudiate it. Clause (vii) of Section 2 of the Dissolution of Muslim Marriages Act, 1939, is in the following terms ; "(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." 9. The law having been given statutory shape and the option of puberty having been made a ground for dissolution of marriage by decree of a Court, it is not possible to contend that the option of puberty could be exercised in any other manner. A muslim woman married during minority, that is before she attained the age of fifteen years could repudiate the marriage before attaining the age of eighteen years, provided the marriage has not been consummated, but she could do so only by filing a suit and obtaining a decree dissolving the marriage. A muslim woman married during minority, that is before she attained the age of fifteen years could repudiate the marriage before attaining the age of eighteen years, provided the marriage has not been consummated, but she could do so only by filing a suit and obtaining a decree dissolving the marriage. I am supported in this view by the decision of the Madhya Pradesh High Court in Pirmohammad v. State of M.P. AIR 1960 M.P. 24 . 10. My attention was drawn to another decision of the Madhya Pradesh High Court given by another learned Judge of that Court sitting single in Nizamuddin v. Husein AIR 1960 M.P. 212 where it was observed : "The law is settled that when a marriage is contracted for a minor by any guardian other than the father or father's father the minor enjoys the option to repudiate the marriage on attaining puberty and this is technically called Khyarul bulugh (option of puberty)." 11. It is noticeable that all the cases referred to by the learned Judge were decisions before the enforcement of the Dissolution of Muslim Marriages Act except that of Ahmad Husain v. Mt. Amir Bano AIR 1940 Allahabad 63. I have looked into that case. It was a defendant's Second Appeal arising out of a suit for declaration that the marriage of the plaintiff with the defendant stood dissolved in con-sequence of the exercise of the option of puberty. The Second Appeal itself was decided on 13th February, 1939, which was before the Dissolution of Muslim Marriage Act, 1939 which received the assent of the Governor General on the 17th March, 1939. None of these decisions are, therefore, may be an authority for the proposition that after the enforcement of the Dissolution of Muslim Marriages Act, 1939, a Muslim girl may rely on having exercised her option of puberty by way of defence in a suit for restitution of con jugal rights. None of these decisions are, therefore, may be an authority for the proposition that after the enforcement of the Dissolution of Muslim Marriages Act, 1939, a Muslim girl may rely on having exercised her option of puberty by way of defence in a suit for restitution of con jugal rights. She can, if she wants to repudiate the marriage on the ground that she was married before the age of fifteen years by her father or other guardian provided the marriage is not consummated, and she repudiates the marriage before attaining the age of eighteen years, and follows it, up by a suit and obtains a decree dissolving the marriage on that ground The marriage will subsist so long as it is not dissolved by the decree of Court in such a suit. 12. The result is that the inquiry into the question whether the first defendant was less than fifteen years of age or that she had exercised the option of puberty was irrelevant in the present case and the suit could not have been remanded for any further inquiry in respect thereof. 13. The only point that remained was whether the marriage had been consummated and the dower had been relinquished. The lower appellate Court noticed that the plaintiff did not lead any evidence in support of his case that the dower had been relinquished. Indeed, he did not state a word even in his own statement on oath that the dower had been relinquished. Under the circumstances, the plaintiff could not have been allowed any further opportunity to lead evidence on the point. It is also noticeable that the plaintiff had, by an amendment of the plaint, pleaded in the alternative that even if it were established that the first defendant did not come to the plaintiff's place after Rukhsat and had not cohabited with the plaintiff and there was no consummation of the marriage, even then he was---------------------entitled to the relief of restitution of conjugal rights in law. The trial Court has in its finding on the question of consummation of the marriage, which it dealt with in the discussion on issue No, 2, held that there was consummation because the first defendant admitted that the plaintiff used to visit her mother's place, That is not the normal way, in which a marriage is consummated. The trial Court has in its finding on the question of consummation of the marriage, which it dealt with in the discussion on issue No, 2, held that there was consummation because the first defendant admitted that the plaintiff used to visit her mother's place, That is not the normal way, in which a marriage is consummated. Be that as it may, 1 do not wish to express an option on the question whether the marriage had been consummated or not because the lower appellate Court has not applied its mind to that question of fact and the present is not an appeal from a decree, but is an appeal from an order of remand. 1 only wish to make it clear that under the law, as enunciated in Paragraph 293 of Mulla's Principles of Mahomedan Law, Eighteenth Edition : "The wife may refuse to live with her husband and admit him to sexual intercourse so long as the prompt dower is not paid (Baillie, 125). If the husband sues her for restitution of conjugal rights before sexual intercourse takes place, non-payment of the dower is a complete defence to the suit, and the suit will be dismissed. If the suit is brought after sexual intercourse has taken place with her free consent the proper decree to pass is not a decree of dismissal, but a decree for restitution conditional on payment of prompt dower," 14. The question of consummation arises in this context, for if there has been no consummation and the amount of prompt dower has not been paid, the suit has to be dismissed. On the other hand, if there is consummation, a decree for restitution of conjugal rights may be passed, but it is required to be conditional on payment of prompt dower. The lower appellate Court has not applied its mind to the question whether the marriage between the parties had been consummated and as to what was the amount of the dower and what part of it was prompt and what part of it was deferred. 1 have to add that in ail cases of restitution of conjugal rights, the Court has also to consider all the facts and circumstances and decide whether the case is a fit one for passing a decree. 15. 1 have to add that in ail cases of restitution of conjugal rights, the Court has also to consider all the facts and circumstances and decide whether the case is a fit one for passing a decree. 15. I accordingly allow the appeal, set aside the judgment and order of the lower appellate Court and direct that the appeal before it being Civil Appeal No. 10 of 1982 be restored to its original number and heard afresh in accord-once with law and in the light of the observations made in this judgment in the circumstances, I make no order as to costs in this Court.