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Regular Second Appeal No. 1046 of 1960, decided on 19th June 1964.

Divorce‑Dower, an essential condition of valid marriage‑Non‑payment of prompt dower on demand‑Wife can validly exercise her power of divorce delegated to her at time of marriage‑Exercise of such power by wife not against public policy or Principles of Muslim Law‑Talak‑i‑tafweez ‑ Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(ii), (ix).

Hamidoolla v. Faizunnissa I L R 8 Cal. 327 and Abdul Sukur v. Sm. Machuma Khatun 7 D L R 451 ref.

Fazlul Karim for Appellant.

A. Salam for Respondent.

This second appeal at the instance of the defendant is from the decision of the Subordinate Judge, Second Court, Comilla in Title Appeal No. 350 of 1959, affirming that of the Munsif, 3rd Court, Comilla in Title Suit No. 25 of 1959.

The defendant married the plaintiff‑respondent according to Muslim Law on 4‑11‑55, on a dower of Rs. 5,000. He executed a kabinnama by which he delegated to the plaintiff the right to repudiate the marriage on the happening of any of the contingencies mentioned therein, including non‑payment of prompt dower on her demand and non‑maintenance. After the marriage, the plaintiff stayed in her father's house where the defendant used to go at times. But since 31‑3‑56, the defendant did not take care of the plaintiff and give her any maintenance. Nor did he give her prompt dower though demanded; rather the defendant Treated her with cruelty and neglect, Thereupon the plaintiff, in the exercise of the right delegated to her in the kabinnama (talak‑i‑tafweez) repudiated the marriage on 30‑6‑58, and got a talaknama registered in token thereof

The defendant contested the suit. He denied the plaintiff's allegation about non‑payment of prompt dower and maintenance and the alleged cruelty and neglect on his part. According to him, the plaintiff' did not ever make any demand for prompt dower and maintenance from him, But he, of his own accord, paid her Rs. 3.200 towards prompt dower and maintenance on different dates. Accordingly, the defendant contended that the right to exercise talak‑i‑tafweez did not really accrue to her and as such, the marriage was not dissolved according to law. His further contention was that the suit was an outcome of a grudge of the plaintiff's brother against him.

The trial Court held, amongst others, that the defendant did not pay the plaintiff the prompt dower in spite of her demand for it and that he did not give her maintenance either. In view of this finding, the trial Court, having regard to the plaintiff's delegated power to repudiate the marriage conferred by the kabinnama Exh. 1 and the actual repudiation of the marriage on 30‑6‑58, by her in the exercise of that power as per talaknama Exh. 2, decreed the suit declaring that the marriage between the parties was legally dissolved by the due exercise of talak‑i‑tafweez by the plaintiff.

The defendant appealed against the judgment and decree of the trial Court. The lower appellate Court agreed with the trial Court that the defendant failed to pay the plaintiff's prompt dower in spite of her demand, but took a different view with regard to maintenance on the ground that she had been voluntarily living in her father's house from the time of her marriage when she was studying in a local school. However, the lower appellate Court held that non‑payment of the prompt dower in spite of the plaintiff's demand was a valid ground for repudiating the marriage in exercise of the power delegated to her in the kabinnama. Accordingly, the lower appellate Court upheld the judgment and decree of the trial Court. The defendant has appealed to this Court against the decision of the lower appellate Court.

Mr. Md. Faziul Karim, learned Advocate for the appellant, has pressed only one point in this appeal, namely, Ground No. 1 in the memorandum of appeal which runs thus:

"For that the Court of appeal below erred grievously in law in holding that non‑payment of prompt dower simpliciter; specially after consummation of marriage, can be a‑ valid reason for dissolution of a Muslim marriage."

The kabinnama, Exh. 1, is admitted. In clause (5) of the kabinnama, the defendant delegated to the plaintiff the power to repudiate the marriage in the event of happening of any of the contingencies mentioned therein. Non‑payment of prompt dower on demand and non‑maintenance are two of the several contingencies mentioned in the said clause. After careful and elaborate analysis of the evidence on record, both the Courts below came to a concurrent finding that the plaintiff did, in fact, make a demand of prompt dower and that the dower so demanded was not paid by the defendant. Thus, one of the contingencies mentioned in clause (5) of the kabinnama, according to the concurrent finding of the Courts below, stood satisfied in this case. The learned Advocate for the appellant, however, contends that once the marriage is consummated, the mere non‑payment of prompt dower cannot, under the Muslim Law, be a valid ground for repudiating the marriage by the wife in the exercise of her delegated power. I have been unable to lay my hands on the opinions of the Muslim jurists on this point. Two reported decisions relating to this point have, however, been cited in this case on behalf of the plaintiff‑respondent. In the case of Hamidoolla v. Faizunnissa (I L R 8 Cal. 327), it was held that non‑payment of prompt dower on demand is a valid condition for the exercise of the delegated power, of divorce by the wife. This decision was followed by this Court in the case of Abdul Sukur v. Sm. Machuma Khatun (7 D L R 451). In the latter case, it was held that the wife can validly exercise the delegated power on the failure of the husband to pay the prompt dower on demand. Dower is the essential condition of Muslim Marriage. Judicial opinions appear to be unanimous that a wife may live separately from the husband in case of non‑payment of prompt dower on demand and claim maintenance from the husband while living separately from him. To provide for maintenance of the wife by the husband is enjoined by the Muslim Law, but to pay prompt dower on demand is all the more enjoined by that law, the same being an essential condition of a contract of Muslim marriage. Under the Dissolution of Muslim Marriages Act, wilful non‑payment of maintenance by the husband for two years gives a right to the wife to seek a dissolution of her marriage. When non -maintenance of the wife is a valid ground for the dissolution of a Muslim marriage, there is no reason why the marriage cannot be lawfully repudiated by the wife in the exercise of the delegated q power in case of non‑payment of prompt dower on demand. The exercise of such power by the wife on the husband's failure to pay the prompt dower on demand does not appear to be against public policy or the principles of Muslim Law. Thus the point raised in this appeal has no merit. As regards actual repudiation of the marriage by the plaintiff in the exercise 0f her delegated power, the evidence of the plaintiff and the talaknama Exh. 2 are sufficient to establish it.

The appeal, therefore, fails and is dismissed. But, having regard to the point of law raised in this case, I do not saddle the appellant with any costs.

K. B. A. Appeal dismissed.

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