Khayar-ul-Bulugh (Option of Puberty) under Muslim Law

Marriage in Muslim law is not just a sacred bond, but also a civil contract. Like all contracts, consent is its foundation. However, many times, minors (boys or girls) may be married off by their guardians before they attain puberty, raising questions about their consent and their future rights.

To address this, Islamic law offers a unique safeguard called Khayar-ul-Bulugh, commonly known as the “option of puberty”. This doctrine allows a minor, upon reaching puberty, to either affirm or repudiate a marriage arranged for them during their minority. This right is a vital protection, ensuring that no one is bound to a marriage they did not truly consent to.

This article discusses the meaning, legal basis, procedural aspects, judicial interpretations, and significance of Khayar-ul-Bulugh under Muslim law, especially in the Indian context.

What is Khayar-ul-Bulugh?

Khayar-ul-Bulugh literally means “option at puberty”. It refers to the right given to a person, who was married before attaining puberty, to ratify or repudiate the marriage upon reaching puberty.

Key Features

• Who can exercise it? Any Muslim boy or girl who was married by a guardian (wali) before attaining puberty.
• When can it be exercised? As soon as the minor reaches puberty (generally presumed to be at the age of 15), and before the marriage is consummated after puberty with the minor’s free consent.
• What can be done? The individual can either:
  • Affirm (continue with the marriage), or
  • Repudiate (annul the marriage).
• What happens if marriage is consummated after puberty? If the marriage is consummated with free consent after puberty, the right to Khayar-ul-Bulugh is lost.
  

Historical and Religious Background of Option of Puberty

The doctrine of Khayar-ul-Bulugh is deeply rooted in Islamic jurisprudence and has been supported by various Hadith (sayings of Prophet Muhammad).

Prophet Muhammad (PBUH) emphasised the importance of consent in marriage. There are several historical instances where girls were given the right to choose once they reached maturity. For example:

• Hadith of Ibn Abbas: A young girl complained to the Prophet that her father married her off without her consent. The Prophet gave her the choice to accept or repudiate the marriage.
• Hadith of Aisha: Similar stories mention the Prophet intervening when girls expressed displeasure with marriages arranged by their guardians.

Stages of Minority and Puberty under Muslim Law

Muslim law divides the age of an individual for marriage purposes into three stages:

1. Saghir (Below 7 years): Marriage is not valid. No contract of marriage can be made.
2. Sariri (7 years to Puberty, usually 15 years): Marriage can be contracted by a guardian (wali), such as father, paternal grandfather, brother, uncle, or even mother if other guardians are unavailable. The marriage is valid but subject to the option of puberty.
3. Bulugh (Puberty, generally 15 years and above): Individual can contract their own marriage with free consent. No longer requires a guardian.

Legal Basis of Option of Puberty in India

While secular law prescribes minimum ages for marriage (18 for girls, 21 for boys under the Prohibition of Child Marriage Act, 2006), Muslim personal law is governed by the principle of puberty (generally 15 years).

Khayar-ul-Bulugh is legally recognised in India under:

Section 2(vii) of the Dissolution of Muslim Marriages Act, 1939: “A woman who, before the age of 15, was given in marriage by her father or guardian, can repudiate the marriage before turning 18, provided the marriage has not been consummated.”

Juristic Opinions

Hanafi School

• Recognises the right of both boys and girls to repudiate a marriage contracted before puberty.
• The right must be exercised immediately after attaining puberty and before cohabitation after puberty.

Shafi, Maliki and Hanbali Schools

These schools also recognise Khayar-ul-Bulugh but with slightly different rules about the guardian’s powers and the timing for exercising the right.

Shia Law

Considers that a marriage contracted by any guardian other than father or grandfather is not valid unless the minor ratifies it after puberty.

Procedure for Exercising Khayar-ul-Bulugh

1. Attainment of Puberty: The minor must have reached puberty, presumed at age 15 unless earlier proof exists (like signs of physical maturity).
2. Awareness: The right arises only when the minor becomes aware of their entitlement. Courts have accepted that the limitation period (usually three years) for exercising this right starts from when the minor learns about it, not from the moment they turn 15.
3. Repudiation: Repudiation must be clear and unambiguous. It can be verbal or written, but it should be communicated to the spouse or the court.
4. Non-Consummation: The marriage must not have been consummated after puberty with the individual’s free consent.
5. Court Proceedings: If the spouse contests the repudiation, the individual may approach the family court under Section 2(vii) of the Dissolution of Muslim Marriages Act, 1939, seeking a decree for dissolution.

Landmark Cases on Khayar-ul-Bulugh

Indian courts have often upheld the rights of minors under Khayar-ul-Bulugh, even when there are conflicts with secular laws.

Behram Khan v. Akhtari Begum

Held: Consummation before puberty does not extinguish the wife’s right to repudiate. The focus is on whether consummation after puberty took place with free consent.

Bismillah Begum v. Nur Mohammad

Held: The right to exercise Khayar-ul-Bulugh arises only after the individual becomes aware of it. Thus, ignorance delays the limitation period.

Abdul Karim v. Amina Bai

Held: Consummation after puberty with free consent ends the right to repudiate.

Mst. Ayesha v. Muhammed Yunus

Held: The wife retains her right to annul the marriage within a reasonable period after discovering her right, even if she did not act immediately upon puberty.

Conclusion

Khayar-ul-Bulugh is a progressive and humane feature of Muslim personal law, focusing on autonomy, consent, and justice. It acts as a powerful check against forced and arranged child marriages, providing a legal exit for those who had no say in their marital destiny. Courts in India have generally upheld the principle, reinforcing its relevance even today.

However, for Khayar-ul-Bulugh to truly protect vulnerable minors, there must be greater awareness, easier access to courts, and community support.