A birth certificate of a person is conclusive evidence of his age unless disproved by the evidence of the witness of the party denying the correctness of it

A birth certificate of a person is conclusive evidence of his age unless disproved by the evidence of the witness of the party denying the correctness of it written by Avdhesh Parashar student of Maharashtra National Law University Aurangabad

Mst. SHABNAM v. Mohd. SHAF AIR 2004 Raj. 303

FACTS OF THE CASE:

The appellant/plaintiff Mst. Shabnam was married to Mohd. Shafiq on 02-11-1991. She was married by her father because she was a minor at the time of Nikah aged 14 years. She filed a suit for dissolution of marriage under Section 2(vii) of Dissolution of Muslim Marriages Act, 1939 on the ground that she was being married by her father before she attained the age of 15 years which was repudiated by her before attaining the age of eighteen years. She disclosed her date of birth as 15-3-1978. It was further averred that the marriage of the plaintiff was never consummated with the defendant.
The defendants denied that at the time of Nikah she (Shabnam) was 14 years i.e., on 2-11-1991. It was said that she was the age of 16 years (dated 15-3-1975) according to pro forma filled by Shahar Qazi Shri Abid Ali. But, thereafter the father of the plaintiff managed to change the date of birth by producing false affidavits before the District Education Officer. It was also contended that the marriage was consummated between them after Nikah and the defendants have filed for the restoration of conjugal rights before Bikaner Family Court.
This is the plaintiff’s appeal under Section 19 of the Family Courts Act against the judgment dated 27- 7-1996 whereby the Judge, Family Court, Jodhpur dismissed the appellant’s petition for dissolution of marriage.

ISSUES FRAMED:

1. Whether the marriage of the petitioner was solemnized before she attained 15 years of age and she repudiated the same before attaining her 18 years of age?
2. Whether the petitioner ever discharged her conjugal duties after her marriage?

RULE OF LAW:

• Section 2 of Dissolution of Muslim Marriage Act, 1939
• The Evidence Act, 1872

OBSERVATION:

Section 2 of the Dissolution of Muslim Marriage Act, 1939 provides the grounds of divorce of Muslim Marriages. Sub-section (vii) reads as follows:
“(vii) that she, having been given in marriage by her father or another 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;”

In Muslim law, Marriage is considered as in the nature of the Contract. In the case of a minor, in Muslim law, married before attaining the age of puberty i.e., 15 years can always repudiate or ratify the contract made by her father during the minority after the attainment of puberty. The minor on attaining puberty may apply to the Court for dissolution of marriage on the ground as mentioned under Section 2 of the Act of 1939 but she has to establish that the marriage is not consummated. The Kerala High Court has held that even after there was any cohabitation before she had attained puberty, it would not affect her right to repudiate the marriage which right she gets only after attaining puberty. The cohabitation by a minor girl would not be sufficient to put an end to her right to repudiate the marriage after attaining puberty.
Further, the plaintiff produced many certificates regarding her date of birth (15-3-1978) i.e., secondary school certificate, date of the birth certificate issued by Municipal Council, marriage certificate, etc.
Defendant has produced as many as 50 documents. All the documents are nothing but certificates obtained from different schools to show the date of birth of the plaintiff.
The court observed that there is also no reason to disbelieve the birth certificate issued by the Municipal Council. The certificate issued by the Municipal Council with respect to the date of birth of a person is a public document under the provisions of Sections 35 and 77 of the Evidence Act. “A certificate of birth of a person is evidence and conclusive evidence of his age unless disproved by the evidence of the witness of the party denying the correctness of it.”
The opinion of the court was that Birth and Death certificate are statutory certificates and birth certificate issued by Municipal Council is presumed to be correct unless any contravention arises. As regards the issue of the consummation of the marriage, the court observed that the best witness available is the plaintiff herself. She has stated in terms that marriage was never consummated. Even if the version of the defendant that after the marriage on 2-11-1991, the plaintiff stayed with him and the marriage was consummated, is accepted the plaintiff’s date of birth being held to be 15-3- 1978, on that date she was a minor. She attained the age of puberty on 15-3-1993. There is no evidence worth the name to show that marriage was consummated after she attained the age of puberty. The court has the opinion that the consent to intercourse by a girl who had not attained puberty is not of any consequence.

JUDGEMENT:

The High Court confirms that the evidence produced on the record fully satisfies the essential ingredient of sub-section (vii) of Section 2 of Dissolution of Muslim Marriage Act, 1939. The Order of Family Court, Jodhpur set aside and marriage between plaintiff and defendant is dissolved.