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Appeal from Appellate Decree No. 115 of 1961, decided on 27th April 1965.
‑Second appeal‑Finding of fact based on evidence‑Cannot be interfered with.
‑Talak‑i‑Tafweez‑Delegated right of divorce for non‑payment of dower‑Not unreasonable or opposed to policy of Muhammadan Law‑Pronouncement of talak by wife need not be in presence of husband or witnesses. [Mirjan Ali v. Mst. Maimuna Bibi 53 C W N 302 dissented from].
Mirjan Ali v. Mst. Maimuna Bibi 53 C N W 302 dissented from.
Mulla's Muhammadan Law, 14th Edn., p. 169 re'.
Ahmed Ali v. Sobha Khatun Bibi and others 14 D L R 613; Mst. Rabilan v. Sanaullah 11 D L R 124 ; Mitha Khan v. Mst. Hidayat Bibi 11 D L R 17 and Majida Khatun Bibi v. Paghula Muhammad P L D 1963 Dacca 583 distinguished.
Fyzee's Outlines of Muhammadan Law, p. 136 and Baillie's Digest of Mohammadan Law 1887, 2nd Edn., p. 76 ref.
Akhtaruddin Ahmad with Md. Nawab Ali and Nur Mohammad for Appellant.
Dr. M. A. Aleem with Khondkar Mahbubuddin Ahmad for Respondents.
This appeal arises out of a suit for restitution of conjugal rights. The case of the plaintiff is briefly this: Plaintiff married defendant No. 1 on the 24th Falgoon, 1359 B.S. corresponding to 8‑3‑1953. This marriage was duly registered before the local Muslim Marriage Registrar. At the time of the marriage there were stipulations in the kabin relating to the marriage by which the husband authorised the wife to divorce herself from him on the happening of certain contingencies. The marriage was consummated and the wife lived with the plaintiff at his quarters at Barisal where the plaintiff served as a constable. She also lived for some time in the village house of the plaintiff. On several occasions, she was taken by her brother defendant No. 2 to his house on pleasure trips. Finally she was taken to his house at Tuta Bari in Agrohayan, 1364 B.S. She was detained there by defendants 2 and 3. They did not allow her to come back to the plaintiff. On several occasions, plaintiff visited her at her father's house. He also remitted her money by postal money orders. He also sent her clothes etc., by postal parcels. He made repeated attempts to bring her but failed. His final attempt to bring her in Agrahayan, 1365 B.S. also failed. Sub sequently plaintiff came to know that defendant No. l exercised her deligated authority of divorce and that divorce was registered in the office of the local Marriage Registrar. The plaintiff asserted that the alleged Talak‑e‑Tafweez was collusive and fraudulent and without authority as there was no happening of any contingency entitling the defendant No. 1 to exercise the delegated authority of divorce. It is stated that the marriage still subsists. Hence this suit for restitution of conjugal rights.
Defence is that defendant No. 1 exercised the delegated right of divorce as contingencies on the happening of which this right could be exercised, actually happened. At the time of marriage there was a stipulation that the plaintiff would pay ornaments and clothes in cash to the value of Rs. 5,000 00 to defendant No. 1, but plaintiff gave her old clothes and ornaments borrowed from others and those were subsequently taken away from her. Thereafter she demanded new ornaments. There was an altercation between the couple over this. As a result defendant No. 1 was sent to the house of her brother defendant No. 2 in the last part of Ashar, 1364 B.S. Thereafter plaintiff took no care of defendant No. 1. He did not give her maintenance. Defendant No. 1 repeatedly demanded the prompt dower but plaintiff failed to pay it. So defendant No. 1 exercised the delegated right of divorce on 21‑9‑1958. The divorce by Tafweez was duly registered. The marital tie between the couple has been irrevocably dissolved. The plaintiff is not entitled to claim defendant No. 1 as wife.
The learned Munsif on a consideration of the evidence held that the contingencies on the happening of which the defendant No. 1 could exercise the delegated right of divorce, did not take place. The learned Munsif disbelieved the defence case that old ornaments were given. It was also held that although plaintiff was not bound to give the defendant No. 1 maintenance as she refused herself to him, the husband remitted money to her. The learned Munsif also held that there was no demand for prompt dower. It was also found by the learned Munsif that there was no formal pronouncement of talak by the defendant No. 1 as required by law. Accordingly the suit was decreed.
On appeal, the learned District Judge held that the plaintiff failed to pay the prompt dower although it was repeatedly demanded by defendant No. 1. It was further held that plaintiff did not pay defendant No. 1 maintenance during the period from later part of Ashar, 1364 B. S. to Aswin, 1365 B. S. According to the learned District Judge, as the contingencies 2 and 5 as men tioned in the kabinnama happened, defendant No. 1 could exercise the delegated right of divorce and that she exercised that right by formal pronouncement of talak as required by law. The learned District Judge held that the marriage was dissolved and that the marital tie did not exists. The appeal was accordingly allowed, the decision of the learned Munsif was reversed and the suit was dismissed. Hence this appeal at the instance of the plaintiff.
Mr. Akhtaruddin Ahmed, the learned counsel on behalf of the appellant has contended that the lower appellate Court erred in law in holding that the contingencies mentioned in the kabin nama did happen to enable the wife to repudiate the marriage.
The learned District Judge referred to the evidence of defendant No. 1 and her brother D. W. 2 and came to the conclusion from their evidence that the wife demanded the prompt dower herself and also through her brother and that the plaintiff did not pay it. As the finding that the wife demanded prompt dower and that the plaintiff did not pay it is based on evidence, there is no ground for interference with this finding in second appeal.
The learned counsel has contended that as D. W. 1 could not state the date, month or year of the demand for the prompt dower, the lower appellate Court erred in holding that there was demand for prompt dower. The learned Judge did not consider the evidence that D. W. 1 could not state the date, month or year of the demand of the prompted dower. These are not such material omissions for which this Court should interfere with this finding in second appeal.
The learned counsel on behalf of the appellant has drawn attention to the statement in the deed of divorce Exh. D that plaintiff divorced her in 1363 B.S. and that as such there could not be any demand for prompt dower in Ashar, 1364 B.S. It is nobody's case that plaintiff divorced defendant No. 1 in 1363 B.S.
It has also been argued that as the evidence of D. W. 1 Abul Hossain that demands were made for prompt dower were not corroborated by independent witness, the lower appellate Court erred in accepting his evidence. This is a question of fact and it was for the lower appellate Court to believe or not to believe his evidence. It may be noted that a brother was al natural witness to make demands for prompt dower on behalf of his sister. It also may be stated here that plaintiff did not make any denial about the demand for prompt dower made by D. W. 1.
The learned counsel has also contended that the delegated right of divorce for non‑payment of prompt dower is unreasonable and opposed to the policy of Muhammadan Law and that as such defendant No. 1 was not entitled to exercise the delegated right of divorce for non‑payment of prompt dower. In support of this contention, reference has been made to Fyzee's Outlines of Muhammadan Law at page 136. The following observation appears there:‑
"Tyabji has pointed out that the breach of a valid condition in a marriage contract does not necessarily give the wife a right to have the marriage dissolved, and he has discussed exhaustively the problems that commonly arise in India."
Reference has also been made to Baillie's Digest of Muhammadan Law 1887 Second Edition at page 76. The follow ing observations have been made there;
"When anything is stipulated for in a contract of marriage which is contrary to law, as, for example, that the husband shall not marry another wife during the lifetime of the party with whom the contract is made, nor privately entertain a woman as his concubine, the condition is void, and the contract valid together with the dower. In like manner, if the husband should stipulate for the payment of the dower at a certain term, and that in the event of failure the contract shall be null, both contract and dower are binding and the condition void."
These observations do not indicate that delegated right of divorce for non‑payment of prompt dower is unreasonable and opposed to the policy of Muhammadan Law.
The learned counsel on behalf of the appellant has also argued that dower is a simple debt and that as the debt could be recovered by other means, it is not reasonable that delegated right of divorce should be exercised for non‑payment of prompt dower. But when the right is delegated, there is no legal bar to the exercise of this right.
It has also been argued that in the facts of the present case, the plaintiff was not bound to give maintenance, the delegated right of divorce could not be exercised. In support of this contention reference has been to the cases reported in 14 D L R 613, 11 D L R 124, 11 D L R 17,and P L D 1963 Dacca 583..
In the case of Ahmed Ali v. Sabha Khatun Bibi and others (14 D L R 613) it has been held that where the wife has refused to live with her husband and to perform her marital obligations without any valid reason, the husband was not bound to maintain her wife and his failure to do so would not entitle the wife to exercise the power of pronouncing a valid talak and that constituted no defence to the husband's suit for restitution of conjugal rights. But in the present case the wife did not refuse to live with the husband. It was the husband who had sent her to her paternal house and did not give her maintenance for more than a year.
In the case of Mitha Khan v. Mst. Hidyat Bibi (11 D L R 17) it has been held that if by reason of the wife's conduct, the husband was under no obligation to pay her maintenance, the former could not make the non‑payment of ground for dissolution of her marriage under the Act. That observation was made in a suit for dissolution of a marriage. The present suit is one for resti tution of conjugal rights. In the present case there is nothing in the conduct of the wife for which the husband could refuse to pay her maintenance.
In the case of Mst. Rahilan v. Sanaullah (11 D L R 124) it has been laid down that the duty of the husband to maintain his wife is only this that, he is to give the wife food and clothing and a place for residence. Under ordinary circumstances, the food, clothing and residence are to be provided at the house of the husband and there will be no failure to maintain unless the husband is not prepared or refuse to her food clothing at his own house. It is only in exceptional circumstances that there would be a duty cast on the husband to pay maintenance in cash. This will happen, for instance, where, under his direction, the wife is living separately. In the present case the wife was living in the house of her parents as she was sent by him there after a quarrel.
In the case of Majida Khatun Bibi. v. Paghalu Mohammad (P L D 1963 Dacca 583) it has been laid down that where the wife refused herself to return to her husband's house without sufficient cause, she was no entitled to maintenance. The facts of that case are entirely different from the facts of the instant case. In the present case she did not refuse herself to return to her husband's house. , She was sent to her parent's house by the husband and he took no care about her and did not send her any maintenance there. The above‑mentioned cases are of no help to the appellant in the present case.
The learned counsel has also argued that in the talaknama there is mention of one quarrel in 1363 B. S. and that as such the lower appellate court should not have accepted the evidence of defendant No. 1 and of her brother defendant No. 2 that she was sent to her paternal house after a quarrel in the last part of Ashar, 1364 B. S. This is a question of fact and the lower appellate Court was entitled to accept the evidence of defendant No. 1 and of her brother.
It has also been argued that defendant No. 1 did not pronounce the talak by Tafweez according to law. The defendant No. 1 deposed that she pronounced the talak three times. The learned counsel has argued that as her evidence that she pronounced talak three times is not corroborated by any other evidence, the lower appellate Court erred in law in accepting her statement. In support of this contention reference has been made to the case of Mirjan Ali v. Mst. Maimuna Bibi (53 C W N 302). In that case it has been laid down that where by agreement between the parties, a Mohammadan husband confers on his wife the power of divorcing him on the happening of a certain contingency, then the marriage does not automatically stand dissolved on the happening of that contingency. In such cases, it is always necessary that there shall be a formal pro nouncement of talak and it should be made either to the husband and/or in the presence of witnesses. In that case there was evidence that wife pronounced the talak three times. But there was no other corroborative evidence. But in the present case the evidence of defendant No. 1 is corroborated by the deed of divorce.
With great respect, I cannot also agree with the view that pronouncement of talak by the wife is to be made either to the husband or in presence of witnesses. As the husband can exercise right of divorce in the absence of wife or in the absence of witnesses, the wife also in the absence of the husband or witness can exercise the delegated right of divorce on the happen ing of contingencies. It is not necessary that she is to exercise that right in the presence of the husband or in the presence of witnesses. This view is supported by the following observation in Mullah's Muhammadan Law, 14 Edn., page 169.
"An agreement made, whether before or after marriage, by which it is provided that the wife should be at liberty to divorce herself in specified contingencies is valid, if the conditions are of a reasonable nature are not opposed to the policy of the Mohammadan Law. When such an agreement is made, the wife may, at any time after the happening of any of the contingencies, repudiate herself if the exercise of the power, and a divorce will then take effect to the same extent as if a talak had been pronounced by the husband. The power so delegated to the wife is not revocable, and she may exercise it even after the institution of a suit against her for restitution of conjugal rights."
It has also been argued that there was no proper appreciation of the evidence by the lower appellate Court. I cannot accept this contention. The judgment does not indicate that there was no proper appreciation of evidence.
Dr. M. A. Aleem, the learned counsel on behalf of the respondent has represented that as there was no injunction order against defendants, defendant No. 1, after dismissal of the appeal, has taken a second husband. This will have no effect on the merits of the appeal. Had it been found that the delegated right of divorce was exercised illegally, the second marriage would not stand as a bar to the decree. However, it is not necessary to enter into the question in detail as the decision of the lower appellate Court affirming the order of dismissal passed by the trial Court is going to be affirmed.
In the result, the appeal is dismissed with cost. The judgment and decree passed by the lower appellate Court are affirmed.
Leave under clause 15 of the Letters Patent prayed for is refused.
K. B. A.
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