A Muslim girl who has attained majority under her personal law is competent to sue for divorce without a next friend, despite the provisions of Order 32, Rule 1 of the Civil Procedure Code.

( 1 ) THIS revisional application is directed against an order of the learned Subordinate Judge, 7th Court, Alipore dated 29th June, 1959 by which he appointed Lal Baivu Bibi, Opposite Party No. 2, as next friend of the plaintiff-petitioner Hanufa Bibi in the divorce suit, being title suit No. 10 of 1957, instituted by her against opposite party No. 11 Mokshad Ali Mondal, and a subsequent order of the learned Subordinate Judge dated 24th November 1959 by which he rejected the petition of the plaintiff-petitioner for review of the earlier order appointing her mother Lal Banu as her next friend, Originally the suit was filed on 1st February 1957 by the petitioner, represented by her paternal uncle Mansur Ali Mondal, and therein it was stated that the then age of the petitioner was 13 years. Accordingly, at the time when the mother Lal Banu, after having been appointed certificated guardian under the Guardians and Wards Act, applied to the Court for being substituted as next friend of her daughter -- the plaintiff-petitioner -- in place of her paternal uncle, the petitioner was over 15 years of age and therefore she had attained majority according to Muslim law.

( 2 ) IT appears that the mother's application was opposed on the contention that the plaintiff-petitioner having attained majority under her personal law could act in the matter of divorce by herself without any next friend, and the appointment of the mother as next friend should therefore be refused and she should be permitted to act for herself without any next friend. This contention wag rejected by the learned Subordinate Judge on the ground that the mother had been appointed as certificated guardian under Guardians and Wards Act, and on the further ground that originally when the suit was filed the plaintiff-petitioner did not sue by herself but sued through her paternal uncle as next friend.

( 3 ) IT is against that order and the subsequent order refusing to review the order that this revisional application has been filed. As regards the ground given by the learned Subordinate Judge that originally the plaintiff did not Sue herself but through her paternal uncle, it would appear that when the suit was filed on 1st February, 1957 she was 13 years of age and not 15 years, and therefore, she had not attained majority according to her personal law. At that stage, therefore, a next friend was necessary; but the next friend could be dispensed with as soon as she attained the age of 15 years, provided in the matter of divorce it is found that a girl who has attained majority according to her personal law can sue without next friend.

( 4 ) ON this point Mr. Benoy Behari Sen for the petitioner has referred us to Section 2 (a) of the Indian Majority Act 1875 which provides that nothing in the Act shall affect the capacity of any person to act in the following matters, viz. , marriage, dower, divorce and adoption. For all other purposes under the Indian, Majority Act, when a certificated guardian has been appointed, the age of majority is 21 years, and where no such guardian is appointed the age of majority is 18 years. But for the purpose of acting in respect of marriage, dower, divorce and adoption, this age of majority as fixed by Indian Majority Act, 1875 does not apply. In respect of a Muslim girl she attains majority under the Muslim law on attaining puberty or on attaining the age of 15 years -- whichever is earlier. It has been held that in spite of the provisions of Order 32 of the Civil Procedure Code, a Muslim woman who is major according to her personal law but minor according to the Majority Act may sue without next friend in the matter of divorce or dissolution of marriage. On this point there is a decision in Nakistan Bibi v. Habibar Rahaman, 50 Cal WN 689, a decision by Akrarn, J. who held that a Muslim girl who has attained puberty is herself competent to sue for dissolution of marriage without a next friend as required by Order 32, Rule 1 o