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Regular Second Appeal No. 86 of 1953, decided on 4th October, 1954, from the decree of the Court of Chaudhry Fazl‑i‑Haq, District Judge, Attock at Campbellpur, dated the 3rd January, 1953, reversing that of Caudhry Muhammad Abdullah Cheema, Senior Civil Judge, Attock at Campbellpur, dated the 4th November, 1952.
(a) Muhammadan Law‑Conjugal rights‑Wife can refuse to live with husband if dower is not paid to her on demand‑Consummation does not affect this right of wife -Decree for conjugal rights passed in favour of husband -Subsequently wife obtained decree for dower‑Suit by wife for dissolution of marriage on ground that husband failed to maintain wife for a period more than two years‑Decree for conjugal rights is insuperable obstacle in wife's way.
In a case for restitution of conjugal rights the husband has to pay the dower if he wants the restitution of conjugal rights. Even after consummation the wife retains the right to refuse the performance of marital obligation till the prompt dower is paid.
There is no principle of justice or reason by which the right of the wife to refuse the performance of marital obligations on account of non‑payment of prompt dower may come to an end by her once surrendering herself.
It is true that unless the wife makes a demand for her prompt dower the husband is entitled to conjugal rights, but if a demand for prompt dower has been made and the dower is not paid, the refusal of the wife to live with the husband would be justified even though this is not assigned as the reason of her refusal. The husband being in default is not entitled to the exercise of conjugal rights and the failure of the wife to live with the husband cannot be a wrong.
The decree for conjugal rights is an insuperable obstacle in the plaintiff's way.
There are two aspects to the effect of this decree. The first is its force as res judicata and the second its effect on account of the right which it establishes. The plea that on account of non‑payment of prompt dower the husband was not entitled to an unconditional decree for restitution of conjugal rights was open to the wife in the suit for restitution. True, it need not have been taken at the time when the written statement was filed in that suit for up to that time the wife had not made a demand for prompt dower and her right to refuse performance of marital obligation could only arise when she did make that demand. She was not bound to make the demand when she presented a written statement. However, she did make the demand during the pendency of the suit on the 14th of November, 1949, by filing a suit for dower. Her right to refuse her person did arise them and she ought to have made non- payment of dower a ground of defence in the suit for the decree would establish the right of the husband to restitution of conjugal rights on the date on which the decree was passed. The wife could not in answer to the execution of the decree plead a fact which had happened before the decree. Had no demand for dower been made before the passing of the decree, it would have been open to the wife to make a demand for dower and then to resist execution on the ground that the decree which was valid when passed had been rendered incapable of execution by a subsequent event. She would be unable, however, to take the plea that would make the decree wrong on the date on which it was passed. Such a plea would be barred by the rule of res judicata.
‑A possible argument would be that the right of the wife to refuse the performance of marital obligations would arise only if she made a specific plea of it with her husband, that is, if she said to her husband "I will not live with you till you have paid my prompt dower", and that as she had never taken up this position before the decree was passed against her, it would be open to her to say after the decree that she would henceforth exercise her right and would not go to her Husband's house till the dower was paid. The principle of res judicata it may be said would not stand in her way as her right came into existence after the decree. I have already rejected the basis of this argument when it was urged by the respondent to suit his own purpose. It is sufficient if a demand for prompt dower has been made and it is not necessary that the wife should make the non- payment of dower a ground of her refusal to live with the husband. By the demand the husband becomes a defaulter and loses the right to an unconditional decree. However, I may state that if I were to accept the argument it would not help the wife for admittedly she never told the husband that she refused to live with him because he did not pay tire dower. Her position even in the present suit has been that she had been willing to live with her husband who had turned her out of the house. I would hold that the plea as to the wife's right to refuse to live with the husband on account of non‑payment of prompt dower is barred by res judicata.
The decree also destroys the wife's case in so far as it grants to the husband the right that the wife should go and live with him. The decree directs the wife to perform her marital obligations although in case of disobedience the wife cannot be delivered to her husband and can only be proceeded against under Order XXI, rule 32 C. P: C. by attachment of her property. . If the husband has the right that the wife should live with him the wife cannot, at least under ordinary circumstances, continue to have a right to be maintained in the place where she chooses to reside.
Mst. Salih Bibi v. Rafi‑ud‑Din 164 P R 1889, 6 P R 1888 (Cr.), Abdool Shukoar v. Raheemun‑nissa N W P H C Rep., 1874 p. 94, Nazir Khan v. Umrao 96 Weekly Notes 1882, p. 96, Willavat Hussain v. Allah Rakhi I t. R 2 All. 831, Abdul Kadir v. Salima I L R 8 All. 149, Wajid Ali Khan v. Sakhawat Ali Khan 15 I C 747=15 O C 127, Chandra Binode Kundu v. Sheikh Ala Bux Dewan 58 I ‑ C 353, Anis Begam v. Muhammad Istafa Wali Khan I L R 55 All. 743, Bashiran Bi v. Abdul Wahab Khan. 188 I C 130, Ramadayal Munnalal Sonar v. Sheodayal A I R 1939 Nag. 186 (F B) and Najiman Nisfa Begum v. Sarajuddin Ahmad Khan A I R 1946 .Pat. 467 ref.
(b) Res judicata‑Generally res judicata is based on judgment‑But it can be 'supported even by decree which embodies operative part of judgment.
Although res judicata is generally based on a judgment it can be supported even by a decree which embodies the operative part of a judgment.
Amriteswari Deb. v. The Secretary of State for India in Council I L R 24 Cal. 504 (P C), Pranal Anni v. Lakshmi Anni and others I L R 22 Mad. 508 (P C) and Kaveri Ammall and others v. Sastr Ramier and another I L R 26 Mad. 104 rel.
Abdur Razaque, and M. B. Khizar Tamimi, for Appellant.
Ghais Muhammad, for Respondent.
‑This, appeal arises out of a suit filed by Mst. Rahim Jan appellant for dissolution of her marriage with Muhammad respondent. The suit was decreed by the trial Court but was dismissed on appeal by the learned District Judge.
The parties were married in March 1949. They lived together only for about a month and a half. On the 8th of August, 1949, the husband filed a suit for restitution of conjugal rights and got a decree on the 20th of December, 1949. During the pendency of the suit, on the 14th of November, 1949, the wife filed a suit for Rs. 500 as prompt dower. A consent decree was passed in this case for a sum of Rs. 200 on the 8th of February, 1950. The present suit was filed on the 30th of July, 1952. The grounds of dissolution relied upon were two : (1) that the defendant had failed to maintain the plaintiff for a period of more than two years; and (2) that he had not performed his marital obligations for a period of more than three years. The trial Court found both issues in favour of the plaintiff and decreed the suit. On appeal the learned District judge came to the conclusion that it was the plaintiff who without sufficient cause had refused to live with the defendant and, therefore, on both issues the judgment should be against her. Before tire learned District judge a new point was raised. It was urged that the defendant had not paid the prompt dower of the plaintiff, and, therefore, the plaintiff was entitled to refuse to live with him. The learned judge held that in this case a decree had been passed in favour of the defendant for restitution of conjugal rights in spite of which she was not prepared to go to her husband. Under the circumstances, the defendant was not bound to maintain her.
The first question that arises for consideration in whether among Hanafis, which the parties are presumed to be, a wife is entitled, even after consummation, to refuse to live with her husband on the ground that her prompt dower has not been paid. On this point there is a difference of opinion between Imam Abu Hanifa and his disciples Imam Muhammad and Imam Abu Yusuf. Imam Abu Hanifa is of the opinion that the consummation of the marriage does not make any difference and that the wife is entitled at any time to refuse to live with her husband until her prompt dower is paid. On the other hand, the two disciples are of opinion that the right of the wife to refuse to live with her husband on account of the non‑payment of prompt dower subsists only till the marriage is consummate The question as to which of these views should be adopted came before a Full Bench of Allahabad High Court in Abdul Kadir v. Salima (I L R 8 All.149). Previously there had been three cases in the Allahabad High Court, namely, Abdool Shukoar v. Raheemun‑nissa (N W P H C Rep., 1874, p. 94), Wilayat Husain v. Allah Rakhi (I L R 2 All. 831.) and Nazir Khan v. Umrao (Weekly Notes 1882, p. 96) in which the viev of Imam Abu Hanifa had been followed. In Abdul Kadir v. Salima, the facts were that the wife pleaded non‑payment of prompt dower in a suit against her for restitution of conjugal rights. At this the plaintiff deposited the amount of the prompt dower in Court. In spite of this the lower appellate Court dismissed the plaintiff's suit on the ground that on the date when the suit was filed no cause of action for a suit for restitution had arisen. The marriage had been consummated before suit. The question before the Full Bench was whether the suit was maintainable. The Full Bench answered the question in the affirmative but ordered a decree to be passed conditional on payment of the prompt dower, This judgment was followed in Madras, Calcutta and Bombay. A Full Bench of the Punjab Chief Court also followed it in Mst. Salih Bibi v. Rafi‑ud‑Din (164 P R 1889) and ordered a decree to be passed in favour of the husband on payment of the prompt dower. Abdul Kadir v. Salima has, however, been dissented from in Oudh and Bhopal and has been criticized by Amir Ali in his book on Muhammadan Law.
Although the decree passed in Abdul Kadir v. Salima was conditional on payment of dower observations in the judgment have been quoted as authority for the proposition that after consummation the wife loses the rights to refuse restitution of conjugal rights on the ground of non‑payment of dower. In view of the importance of Abdul Kadir v. Salima and also in view of the fact that the Full Bench of the Punjab Chief Court approved of the judgment without itself discussing the point involved it is necessary to determine the extent of the authority of Abdul Kadir v. Salima as a precedent and for this purpose I have to refer to the judgment in some detail. As already stated the question before the Full Bench was whether the suit for restitution of conjugal rights was maintainable although at the time when the suit was filed the dower had not been paid. I give below the various conclusions of Mahmood, J. (whose judgment was adopted by the Full Bench) though I have not stuck to the order in which they are stated by the learned Judge,:‑
(1) The learned judge found that there was no proof of any demand for prompt dower having been made by the wife before the suit was filed, and as the right to receive prompt dower did not arise till a demand had been made there could be no objection to the suit.
This would appear from the following passage which appears at page 167 of the report :‑
"But the rule enunciated by me need not be applies in its fullest extent to the present case, because here, in the first place, it has not been found that the wife ever demanded her dower before the suit was filed, or that she declined to cohabit with her husband the plaintiff upon the ground that her dower had not been paid. She relied upon allegations of divorce and cruelty, both of which were found by the Court of first instance to be untrue, and upon these findings I hold that she had no defence to the action. The plaintiff, as I have already shown, acquired by the very fact of the marriage the right of cohabitation ; lie was not bound to pay the dower before it was demanded, and upon the findings of the first Court, the first intimation which he had of such demand was the written defence of his wife (defendant No. 2) in the course of this unfortunate litigation.
(2) On a consideration of the nature of a marriage contract among the Muhammadans and of the rights to which it gives rise the learned judge came to the conclusion that rights and liabilities of the spouses came into existence simultaneously and one could not be a condition precedent for the other.
He said at page 164‑
"I have already said enough to show that the right of dower does not precede the right of cohabitation which the contract of marriage necessarily involves, but that the two rights come into existence simultaneously and by reason of the same incident of law. The right of the wife to claim maintenance from her husband arises in the same manner as one of the legal effects of marriage, and to say that any of those effects are not simultaneously created by the contract of marriage amounts, in my opinion, to a violation of the fundamental notions of jurisprudence regarding correlative rights and obligations arising from one and the same perfected legal relation. Indeed, so far as the question now under consideration is concerned, the rules of Muhammadan Law leave no doubt when that system of law is consulted as a whole and not upon isolated points. The fact of the marriage gives birth to the right of cohabitation not only in favour of the husband but also in favour of the wife, and to say that the payment of dower is a condition precedent to the vestiture of the right, is to hold that a relationship, of which the rights and obli gations are essentially correlative, may come into existence at one time for one party and another time for the other party".
(3). On a consideration of Muslim authorities the learned Judge came to the conclusion that it was the opinion of the two disciples which had been followed in preference to that of Imam Abu Hanifa. The learned judge found that according to the rule adopted by Muslim jurists the opinion of the disciples when they differed from Imam Abu Hanifa was to prevail against that of Imam Abu Hanifa.
He said (p. 167) :‑
"According to the ordinary rule of interpreting Muhammadan Law, I adopt the opinion of the two disciples as representing the majority of the three Masters,' and hold that, after consummation of marriage, non‑payment of dower, even though exigible, cannot be pleaded in defence of an action for restitution of conjugal rights ; the rule so laid down having, of course, no effect upon the right of the wife to claim her dower in a separate action".
However, it must be stated that this conclusion is not quite consistent with an earlier passage at pages 161‑62 where it is regarded as a well‑recognized rule of Muhammadan Law that the wife has the right to refuse cohabitation if the husband has not paid the prompt dower. The passage runs (pages 161‑62) :‑
"The texts cited by the learned pleader for the respon dents undoubtedly show, what is a well‑recognised rule of the Muhammadan Law of marriage, that the marriage contract having been completed and its legal effects having been established, the right of claiming prompt dower comes into existence in favour of the wife, and that she can use such a claim as a means of obtaining payment of the dower and as a defence for resisting a claim for cohabitation on the part of the husband against her consent. And when I say this, I put the case in favour of the respondents in its strongest possible light. for even upon this question in cases where cohabitation has taken place, the conflict of authority is too great to render it an undoubted proposition of the Muhammadan Law."
The last sentence quite clearly shows that the "well‑recognized rule" referred to in the earlier part of the passage includes a case where marriage has been consummated.
It has also to be stated that in spite of his acceptance of the rule that the view of the disciples is to be accepted in preference to the view of Imam Abu Hanifa the learned judge accepted that so far as going on a journey was con cerned, the wife could refuse to do so on the ground that she had not been paid her prompt dower. The learned judge accepted on this point the opinion of the jurist Abdul Qasim Assaffar, who had followed Imam Abu Hanifa so far as going on a journey is concerned and had followed the two disciples so far as cohabitation is concerned. I might refer in this connection to the following passage in the judgment (p. 162), which is an extract from Fatawa Qazi Khan, and has been quoted with approval :‑
"A wife, having surrendered herself to her husband before the fulfilment (i.e., payment) of dower, subsequently denies herself (to him) for securing fulfilment of the dower. She has this right in the opinion of Abu Hanifa : but Abu Yusaf and Imam Muhammad maintain that she has not the right of prohibiting him from connubial intercourse, and doubts have arisen in regard to their opinion as to the power of preventing her from journeying. And according to the opinion of Abdul Qasim Assaffar, it is her right that she may prevent him from taking her on a journey."
(4) The learned judge found that in any case it could not be said that there was no cause of action, even if the payment of prompt dower was a condition precedent to the right of restitution.
The question before the Full Bench was whether a cause of action had accrued or not when the suit was filed and this question had to be answered in the affirmative. The learned judge said at page 170 :‑
"It is one thing to say that such a defence may be set up under certain conditions : it is a totally different thing to say that until the dower was paid no cause of action could accrue to the plaintiff'. The payment of dower not being a condition precedent to the vesting of the right of 11 cohabitation, a suit for restitution of conjugal rights, whether by the husband or by the wife, would be main tainable upon refusal by the other to cohabit with him or her ; and in the case of a suit by the husband, the defence of payment of dower could, at its best, operate in modification of the decree for restitution of conjugal rights by rendering the enforcement of it conditional upon payment of so much of the dower as may be regarded to be prompt".
(5) Regarding the marriage contract as a sale and the right of the wife to refuse cohabitation on account of non‑payment of prompt dower, a kind of vendor's lien, the learned judge held that the right would terminate on consummation as after delivery of goods the lien would cease to exist.
(6) In spite of the fact that the learned judge had recorded the finding that the wife could not, after con summation, be entitled to plead non‑payment of dower as defence to a claim for restitution the learned judge did not pass an unconditional decree in favour of the plaintiff but passed a decree only conditional on the payment of prompt dower. The reasons for so doing are contained in the passage at page 167, which is the first passage I have quoted from the judgment.
It is clear on a reading of the judgment that all the discussion about the right of the wife to refuse herself on account of non‑payment of dower is obiter. It is obiter because the learned judge found that the wife had not demanded prompt dower before suit and as prompt dower becomes payable only on a demand the suit was obviously maintainable. It is an obiter also for the reasons that even if it be accepted that without payment of prompt dower the husband is not entitled to conjugal rights that does not mean that the cause of action had not arisen at all. As the learned judge put it, it is one thing to say that non‑payment of prompt dower is a defence to action for restitution of conjugal rights and another to say that the husband had no cause of action whatsoever. That the husband is entitled to a certain relief only on compliance with a condition precedent does not imply that if before the suit the condition precedent had not been performed there was no cause of action. It should be remembered that the learned Judge was only concerned with the question whether before the suit there was a cause of action and a perusal of the judgment confirms the impression that it is only this question that the learned Judge was trying to determine. That all the remarks about the right of the wife to plead non‑payment of the dower as a defence to an action for restitution of conjugal rights, even after consummation, are obiter was recognized by Sulaiman, C. J. in Anis Begum v. Muhammad Istafa Wali Khan (I L R 55 All. 743.) to which reference will be made later.
The next important point about the judgment is that the learned Judge though apparently finding in favour of the view of the two disciples did not apply it to the case before him. He directed a decree only on the payment of prompt dower. If really the wife had no right of refusal the husband would be entitled to a decree without the payment of dower. The decree passed really recognizes the right of the wife to dower before restitution of conjugal rights, even after consummation. In spite of the expression of opinion at one place against the view of Imam Abu Hanifa, really the decree is in accordance with the passage where the learned judge regarded it as a well‑recognized rule of Muhammadan Law that the wife was entitled to refuse herself on account of non‑payment of dower and the correct basis of the judgment is that the rights arise simultaneously and, therefore, a cause of action for a suit for restitution of conjugal rights exists, even though the wife is entitled to the performance of an obligation in her favour.
Abdul Kadir v. Salima was, as already stated, followed in Bombay, Calcutta, Madras and the Punjab, but it soon became the subject of criticism in other quarters. In Allahabad itself, Maulvi Sami Ullah, who is referred to by Amir Ali in his commentary on Muhammadan Law as "one of the most learned judicial officers in British India", in the case of Mst. Rasulan & Zahuran v. Mirza Nasamullah Beg challenged the view expressed in Abdul Kadir v. Salima with respect to the rule to be followed in case there is a difference of opinion between the disciples and Imam Abu Hanifa as wellas with regard to the rights of the wife to refuse herself to the husband after consummation. Amir, Ali in his commentary on Muhammadan Law expressed the opinion that Abdul Kadir v. Salima proceeded on "wrong analogies" and was "founded on a total misconception of the rules" of Muhammadan Law in case there was a difference of opinion between Imam Abu Hanifa and his disciples. In the Court of the Judicial Commissioner of Oudh in Wajid Ali Khan v. Sakhawat Ali Khan (15 I C 747=15 O C 127.) Lindsay, J. C. and Rafique A. J. C, dissented from Abdul Kadir v. Salima after an exhaustive discussion of the subject. As regards the rule propounded by. Mahmood, J. in case of a difference of opinion between Imam Abu Hanifa and the disciples they came to the conclusion that no such rule had been adopted by Muslim jurists As regards the rights of the wife after consummation the learned J. C.'s found that the majority of the Muslim jurists had adopted the view of Imam Abu Hanifa. As regards the argument based on the analogy of a sale they held in the first place that the analogy was not applicable and secondly that even if it was applicable the conclusion drawn was unjustified.
In Anis Begam v. Muhammad Istafa Wali Khan a Division Bench of the Allahabad High Court had again to consider the right of a Muhammadan wife to plead non payment of dower in a suit for restitution of conjugal rights, even after consummation. Sulaiman, C. J. (with whom Thom, J. concurred) held that there was no rule of inter pretation that the view of the disciples was to be preferred to that of Imam Abu Hanifa. Referring to Wajid Ali Khan p. Sakhawat Ali Khan (15 O C 127) the learned judges said (p. 750) :‑
"On pages144‑7 of the report in that case some of the texts have been reproduced to show that, even in the case of a difference the opinion of Imam Abu Hanifa is to be preferred. Of course, there is no such general rule either. As a matter of fact, there does not appear to be any fixed rule : See Irfan Ali v. Bhagwant Kishore (A I R 1929 All. 180 (187)). Different doctors have followed different rules of pre ference. Those who were more orthodox and, generally speaking, more ancient in many cases preferred the solitary opinion of Abu Hanifa to even the joint opinion of his disciples."
With regard to the argument of Mahmood, J. based on analogy of sale the learned judge conceded that the inference Was unjustified. He said (p. 754) :‑
"The line of reasoning based on the analogy of sale has naturally been very severely criticised at pages 148‑9 in Wajid Ali Khan's case ((1912) 15 Oudh Cases 127) by the Oudh Bench, and so also by Mr. Ameer Ali in his Muhammadan Law, Volume II, pages 459‑60. No doubt the Muslim commentators have, by way of illustration, applied certain principles governing a contract of sale of goods to the contract or marriage, but that was by way of analogy only. The similarity cannot be pushed too far, nor can the principles governing the sale of goods be applied in all their details. Indeed, if one were to pursue the analogy far enough there would be a reductio ad absurdum."
Having thus agreed that both the bases for the conclusion of Mahmood, J. did not exist the learned Judge proceeded to consider independently of Abdul Kadir v. Salima the question whether the wife was entitled to refuse herself to the husband on account of non‑payment of dower even after consummation. He divided Muslim authorities into three groups. In the first group the learned judge placed the ancient text‑books called matan, i.e., Bidaya Tanvir‑ul‑Absar, Kan‑ud‑dakaik and Wikayat‑ur‑rivayah. These he found to be accepting the opinion of Imam Abu Hanifa without even mentioning the difference of opinion. In the second group the learned Judge placed what he called great com mentaries. They are Hedaya, Durr‑ul‑Mukhtar. Bahr‑ur raik, Sharah Vikayah, Fath‑ul‑Kadir, Tahtawi, Radd‑ul‑Muhtar and Fatawa‑i‑Qazi Khan. Of these Durr‑ul‑Mukhtar adopts what is stated in Tanvir‑al‑Absar without mentioning the difference of opinion. The remaining commentaries quote the matan and state the difference of opinion but without expressing any opinion of their own. In the third group the learned judge placed some later books, i.e., Fatawa Ghiyasia, Jami‑ul‑Rumuz, Fatawa Himadya and Fatawa Maulvi Abdul Hai. Of these two, i.e., Fatawa Ghiyasia and Fatawa Maulvi Abdul Hai express an opinion in favour of the view of the disciples. After referring to these com mentaries the learned Judge reached a conclusion which is thus expressed in the head‑note:-
"Although the observation of Mahmood, J. in the case of Abdul Kadir v. Salima was an obiter dictum, founded upon a too closely applied analogy of sale of goods and upon a misconceived rule of interpretation of the Muhammadan Law, and although texts and commentaries of ancient jurists of recognized authority could be cited in support of the opposite view, yet it would be dangerous now to go back upon the long course of decisions which throughout India, excluding Oudh, have accepted and followed that dictum, and thereby to unsettle the law by not adhering to the well recognized principle of stare decisis."
Before concluding a review of the case‑law I have to refer to Bashiran Bi v. Abdul Wahab Khan, a‑ case of the Bhopal High Court reported in 188 I C 130. The identical question arose in that case. It was first referred to a Mufti under section 111/1 of the Bhopal C. P. C. The question referred to was in the following terms :-
"Was a wife entitled after consummation of marriage for refuse performance of her marital obligations on the ground of her prompt dower having remained unpaid "
The Mufti answered it in the affirmative. A further reference was made to an Assembly of Ulma and they gave the following answer :‑
"After consummation of the marriage, and even after birth of children, the right of refusal of person remains with the wife under the circumstances mentioned in the reference. Some of our doctors have held that right of refusal of person is lost after voluntary consummation, but fatwa and practice do not support this view.
In the case under reference it is important to find whether the refusal of person yeas previous or subsequent to the demand of dower, because a refusal previous to the demand was not 'lawful. Her right of refusal comes into play only 'on her making a demand for the exigible dower."
In view of the fact that the answer related only to refusal of person whereas the question involved all marital obligations, M. A. Khan, C. J., who decided the case, went into the question independently and agreed with Imam Abu Hanifa's view.
As the matter has been exhaustively discussed in Courts that hold opposite views it is not necessary for me to refer in detail to authorities and I will briefly state my conclusions and the reasons therefor.
So far as the rule of interpretation in case of difference of opinion between Imam Abu Hanifa and the disciples is concerned it has been conceded by Sulaiman, C. J. that no such rule exists. As the learned Judge observed (p. 749 of I L R 55 All.).‑
"But it would be easy to cite instances in which the opinion of Imam Abu Hanifa alone has prevailed, parti cularly in matters of prayer and ritual, or of Imam Yusuf in matters of inheritance. There appears to be no such invariable rule which would make the decision depend on the majority of votes only."
In Wajid Ali Khan v. Sakhawat Ali Khan a number of instances have been cited and in fact the old Muslim texts on the very point in dispute would show that the opinion of Imam Abu Hanifa was being preferred to that of disciples. In none of the commentaries referred to by Sulaiman, C. J., is it stated that the opinion of the disciples was to be preferred. On a perusal of the instances given in Wajid Ali Khan v. Sakhawat Ali Khan, as well as the quotations on pages 15 td 17 of Amir Ali's Muhammadan Law, Volume I, two things become clear. The first is that the weight of the opinion of the master (Imam Abu Hanifa) depends upon what the Court regards his capacity for interpretation and not because of any religious duty to accept that opinion. In some matters, the opinion of the disciples is accepted while in others the opinion of Imam Abu Hanifa is regarded as supreme. The second is that the opinion even of one who is held in great respect can be disregarded when there is a change of circumstances.
As Sulaiman, C.J. and the learned Judges in Wajid Ali Khan v. Sakhawat Ali Khan have pointed out there is no fixed rule adopted by Muslim jurists. Under the circumstances, I would adopt the rule enunciated by Alhawi which is thus referred to at page 188 of Abdur Rahim s Muhammadan Jurisprudence:-
"Alhawi lays down as the correct rule that in such cases of difference of opinion regard should be had to the authority and. reasons in support of each view and the one which has the strongest support should be followed, and this is undoubtedly in strict accord with the principles of Muhammadan jurisprudence apart from the great weight that attaches to that eminent authority."
With respect to the question whether under Muhammadan Law a wife has a right of refusal of person after consum mation, it will be observed that the original Muslim authorities which are called matan and are placed by Sulaiman, C. J., in class 1 are all in favour of the right of the wife. Out of the authorities of the second class Durr‑ul‑Mukhtar is in favour of the wife while the other refer to the conflict without expressing their own views. Out of the authorities of the third class there are only two, Fatawa Ghiyasia and Fatawa Maulvi Abdul Hai, which express an opinion against the wife but neither of these books can be regarded as an authority. They are not mentioned in any treatise on Muhammadan Law. As Abdur Rahim has pointed out at page 189 of Muhammadan jurisprudence, doubtful authorities should not be followed. This is what the learned commentator says :‑
"In this connection one has to be careful as to the books that he consults. Writings of obscure authors, such as Mulla Miskin's commentary on 'Kanz' or Qahastani's commentary on 'Niqaya', and unreliable books, that is, those in which weak versions of the law are reported such as 'Qinyah' by Zahidi should be avoided and the propositions laid down in them can only be accepted if their authority be known."
I cannot accept the statements in the two books mentioned above in preference to what is stated in the matan.
The argument of Mahmood, J. based on the analogy of sale was conceded by Sulaiman, C. J., as leading to an absurd position. I do not feel the need of saying more about it as I am in respectful agreement with the criticism of the argument in Wajid Ali Khan v. Sakhawat Ali Khan.
As regards the basic argument of Mahmood, J. at page 164, which I have already quoted, I have with great respect to record my dissent. The argument put forward is that the rights of the husband and wife arise simultaneously and, therefore, the one cannot be a condition precedent for the other. But it is agreed on all hands that before consummation the payment of dower does constitute a condition precedent. It cannot, therefore, be urged that the performance of an obligation by the husband cannot be a condition precedent for the exercise of a right by him. The real question was not whether the payment of dower constituted a condition precedent at all but whether it ceased to be a condition precedent on account of the wife having once surrendered herself. It was only some kind of estoppel or relinquishment of right by which the right which the wife had might have been terminated. The matter is not discussed in any judgment from this point of view although resort is being had to a priori reasoning. I do not find any principle of justice or reason by which the right of the wife to refuse the performance of marital obligations on account of non-payment of prompt dower may come to an end by her once surrendering herself.
There is also an inconsistency in the Allahabad view. . As already stated, Mahmood, J. had accepted the view of Abul Qasam Assaffar that after consummation the wife could still refuse to go out on a journey with the husband if her prompt dower was not paid (which otherwise she was not entitled to do) but she could not refuse her body. No effort has been made to explain the principle on which while the wife can use the non‑payment of dower as defence against the performance of one marital obligation she cannot do so in respect of another. In this connection I might refer to that verse in Sura Maida which deals with the payment of dower.
It runs :‑
| "This day are (all) things Good and pure made lawful Unto you. The food Of the People of the' Book Is lawful unto you And yours is lawful Unto them (Lawful unto you in marriage) Are (not only) chaste women Who are believers, but haste women among The People of the Book, Revealed before your time, When ye give them Their due dowers, and desire Chastity, not lewdness, Nor secret intrigues. If any one rejects faith, Fruitless is his work, And in the Hereafter He will be in the ranks Of those who have lost, (All spiritual good).‑(Holy Quran : V .6) |
The least that can be said is that this verse stresses the right of the wife to payment before she can be made the subject of exercise of his rights by the husband.
I may also point out that in Egypt, Turkey and Arabia the right of wife to resist a claim for restitution of conjugal rights exists even after consummation, as will appear from Article 213 of Abdur Rahman's Institutes of Munammadan Law (which book is based on the Droit Musulman, a Code prepared under a commission from the Egyptian Government by a Council presided over by Kadri Pasha, a Judge of the Mixed Tribunal of Appeals at Alexandria) and an extract from the commentary under that Article which I quote below :‑
Article 213.‑ . . . . According to Imam Abu Hanifa, the founder of the Hanifa sect of Mussalmans the wife even after consummation of marriage, can refuse her person to her husband until he has paid in full the prompt prior of the dower. In Egypt, Turkey and Arabia, this rule of law obtains among the Hanifites, and the British Courts in India administered it for nearly a century, as the following notes of their decisions would illustrate."
There were two grounds for the view of Mahmood, J preference of the view of the disciples and logical reasoning. Both these grounds were conceded by Sulaiman, C. J., to be non‑existent. It is clear from Anis Begam v. Muhammad Istafa Wali Khan that Sulaiman, C. J. stuck to the view of Mahmood, J. only on the basis of stare decisis. The principle of stare decisis may be applied to cases where relying on the existence of a particular state of the law people had entered into transactions so that they would be prejudiced if the law was held to be different, but otherwise it cannot, as pointed out in Ramadayal Munrialal Sonar v. Sheodayal (1) and Chandra Binode Kundu v. Sheikh Ala Bux Dewan (2) prevent a Court from interpreting the law correctly. It cannot be said that marriage contracts have been entered into on the strength of Abdul Kadir v. Salima, and that had the husbands known the law to be different they would either not have entered into marriage contracts at all or would have reduced the amount of dower. Even according to the law, as accepted by the disciples and all Courts, till consummation the wife has always the right to refuse herself if prompt dower is not paid. Also in Abdul Kadir v. Salima the decree had been made conditional on the payment of prompt dower and the law had since then been understood to be that a decree for restitution was to be conditional on the payment of prompt dower. I do not think a recognition 'of the right of the wife of dower after consummation would, under the circumstances, have the effect of unsettling the law so as to call for the application of stare decisis. The decree in Abdul Kadir v. Salima had in fact recognized the right of the wife though the judgment did contain observations that the right did not exist and the law, as laid down in the commentaries on Muhammadan Law, has been that a decree is to be passed only on payment of dower.
I would explain that I am respectfully in entire agreement with the view of Mahmood, J. that rights arise at the time of marriage. Only, as in cases of specific performance of contracts, the performance of a reciprocal obligation may become a condition precedent. Just as in a suit for specific performance a plaintiff should be "able and willing" to perform his part of the contract so in a case for restitution of conjugal rights the husband has to pay the dower if he wants the restitution of conjugal rights.
I would hold that even after consummation the wife retains the right to refuse the performance of maritall obligation till the prompt dower is paid.
Another question that arises is this : Is the wife entitled to this protection only if she expressly refuses the performance of marital obligations on account of non‑payment of dower It is true that unless she makes a demand for her prompt dower the husband is entitled to conjugal rights, but if a demand for prompt dower has been made and the dower is not paid, the refusal of the wife to live with the husband would be justified even though this is not assigned as the reason of her refusal. The husband being in default is not entitled to the exercise of conjugal rights and the failure of the wife to live with the husband cannot be a wrong.
It was urged on behalf of the respondent that even if the husband was not entitled to restitution of conjugal rights on account of non‑payment of dower, that would not imply that the husband was bound to maintain the wife. Reliance was placed in this connection on Sadar Din v. Mst. Suban (6 P R 1888 (Cr.)) where an order made under section 488 of the Code of Criminal Procedure .was set aside because the wife refused to live with her husband on the ground that her prompt dower had not been paid. The judgment is very short and contains no reference to any work on Muhammadan ,Law. The whole argument is exhausted in the following two sentences :‑
"The wife may, we suppose, resist her husband on the civil side by a plea of unpaid dower, but if she does, we do not think she can expect her husband to maintain her elsewhere.
We hold, therefore, that she has not shown sufficient cause to justify her refusal to live with her husband, and under the latter part of section 488, Cr. P. C., we set aside the order of maintenance."
The judgment may have been based on the wording of section 488 which requires "a sufficient cause" for the refusal of the wife to live with the husband. While I would not with all respect agree even with this interpretation of "sufficient cause" it is clear that for the decision of the present case the judgment is not of any help. It may be sufficient for repelling the contention put forward to refer to Hamilton's Hedaya, Volume I, page 151, where' it is said :‑
"It is proper to observe, that where the ‑ woman refuses to admit the husband to a repetition of the carnal' act, as above stated, yet she has, nevertheless, (according to Haneefa), a claim to her subsistence as her refusal does not, in this case, proceed from any stubbornness or disobedience, since it is not exerted in resistance to a right, but rather in maintenance of one."
Article 214 of Abdur Rahman's Institutes of Mussalman Law runs :‑
" When the wife has not received her prompt dower in full, after having laid claim to it, she is free to leave her husband's house without his permission and without thereby rendering herself rebellious or losing her right to maintenance."
The same is provided in paragraph 53 (a) of Wilson's Anglo Muhammadan Law which I reproduce below:‑
" The husband is bound
(a) To maintain his adult wife in a manner suitable to his wealth, or at least to the mean between his wealth and hers if she is the poorer, quite irrespective of her ability to maintain herself out of her own property, sc long as she is un-divorced and obedient, and whether obedient or not if she has the right of refusal for non -payment of dower ; but he is not bound to maintain a wife who refuses herself to him without reasonable cause or is otherwise disobedient ;".
To the same effect is paragraph 277 of Mulla's Muhammadan Law. I may also refer to Najiman Nissa Begum v. Sarajuddin Ahmad Khan (A I R 1946 Pat. 467) where the identical question arose. It was held that the wife was entitled to mainten ance and failure by the husband to maintain for two years would entitle the wife to a decree for dissolution of marriage.
I do not, at the same time, find any good reason for refusing maintenance to the wife when the husband does not pay her prompt dower. The husband cannot be allowed to take advantage of his own default and the wife, who is otherwise entitled to maintenance, cannot be deprived of it by the exercise of a right given to her by the law. I find no substance in this contention.
So far the wife is on good ground and had the matters for consideration ended here this appeal would have to be accepted. But there is a matter not argued in the Courts below which I took up suo mote and that is the effect of the decree for restitution of conjugal rights, I had pointed out to the parties at the hearing that the existence of the decree may seriously affect the decision of this case and after giving the matter full consideration I have reached the conclusion that the decree is an insuperable obstacle in the plaintiff's way.
There are two aspects to the effect of this decree. The first is its force as res judicata and the second its effect on account of the right which it establishes. The plea that on account of non‑payment of prompt dower the husband was not entitled to an unconditional decree for restitution of conjugal rights was open to the wife in the suit for restitution. True, it need not have been taken at the time when the written statement was filed in that suit for up to that time the wife had not made a demand for prompt dower and her right to refuse performance of marital obligation could only arise when she did make that; demand. She was not, bound to make the demand when she presented a written statement. However, she did make the demand during the pendency of the suit on the 14th of November, 1949, by filing a suit for dower. Her right to refuse her person did arise then and she ought to have made non‑payment of dower a ground of defence in the suit for the decree would establish the right of the husband to restitution of conjugal rights on the date on which the decree was passed. The wife could not in answer to the execution of the decree plead a fact which had happened before the decree. Had no demand for dower been made before the passing of the decree, it would have been open to the wife to make a demand for dower and then to resist execution on the ground that the decree which was valid when passed had been rendered incapable of execution by a subsequent event. She would be unable, however, to take the plea that would make the decree wrong on the date on which it was passed. Such a plea would be barred by the rule of res judicata. I may point out that although res judicata is generally based on a judgment it can be supported even by a decree which) embodies the operative part of a judgment. Reference may) be made in this connection to Amriteswari Debi v. The Secretary of State for India in Council (I L R 24 Cal. 504 (P C)), Pranal Anni v. Lakshmi Anni and others (I L R 22 Mad. 508 (P C)) and Kaveri Ammall and others v. Sastri Ramier anal another (I L R 26 Mad. 104).
A possible argument would be that the right of the wife to refuse the performance of marital obligations would arise only if she made a specific plea of it with her husband, that is, if she said to her husband" I will not live with you till you have paid my prompt dower", and that as she had never taken up this position before the decree was passed against her, it would be open to her to say after the decree that she would henceforth exercise her right and would not go to her husband's house till the dower was paid. The principle of res judicata it may be said would not stand in her way as her right came into existence after the decree. I have already rejected the basis of this argument when it was urged by the respondent to suit his own purpose. It is sufficient if a demand for prompt dower has been made and it is not necessary that the wife should make the non‑payment of dower a ground of her refusal to live with the husband. By the demand the husband becomes a defaulter and loses the right to an unconditional decree. However, I may state that if I were to accept the argu ment it would not help the wife for admittedly she never told the husband that she refused to live with him because he did not pay the dower. Her position even in the present suit has been that she had been willing to live with her husband who had turned her out of house. I would hold that the plea as to the wife's right to refuse to live with the husband on account of non‑payment of prompt dower is barred by res judicata.
The decree also destroys the wife's case in so far as it grants to the husband the right that' the wife should go and live with him. The decree directs the wife to perform her marital obligations although in case of disobedience the wife cannot be delivered to her husband and can only be, proceeded against under Order 21, rule 32 C. P. C. by attachment of her property. If the husband has the right that the wife should live with him the wife cannot, at least under ordinary circumstances, continue to have a right to be main tained in the place where she chooses to reside.
The result is not at all happy. Here are a husband and wife who have reached a stage where they cannot pull on with one another. There is no charge of any mis conduct against the wife, in fact the record is silent as to the reason for the rift between the spouses. It is hard to believe that Muslim Law, so rational and practical, is unable to provide a remedy. But the question as to the rights of the wife in such a situation has not been determined in the present case and I can do no more than record that her right to agitate this matter is not barred, with which observation I dismiss this appeal but leave the parties to bear their own costs throughout.
K. M. A. Appeal dismissed.
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