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Second Appeal No. 930 of 1951, decided on 4th March 1957.
‑Divorce‑Li'an‑Retraction of charge of adultery‑Must be unconditional.
A retraction of the charge of la'an to be a valid retraction under the Muhammadan Law must imply an admission of having made the charge and then acknowledging such a charge as false. Where, therefore, a person denies having made the charge and says that, if such a charge has been made, he is prepared to retract, that is not sufficient to constitute a retraction according to the rules of Muhammadan Law, for, thereby , he saves himself from punishment for slander or perjury in the previous trial, if any, as also defeats the wife's suit for dissolution of marriage.
Although a false charge of adultery is not a ground for dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939, it is still available as a ground for divorce to Muslims and such a divorce may be asked for by a regular suit instituted for that purpose.
Hamilton's Hedaya Book IV Chapter X Volume I. p. 348 (First Edition) and Baillie's Digest of Muhammadan Law Book III, Chapter X, p. 335 (1865 Edition) ref.
Ahmed Suleman v. Bai Fatma I L R 55 Born. 160 dis tinguished.
Rahima Bibi v. Fazil I L R 48 All. 834 ; Mst. Banno Begam v. Inayat Husain and onother A I R 1948 All. 34 and Mst. Fakhre oJahan Begum v. Muhammad Hamidullah Khan I L R (1929) 4 Luck. 168 ref.
Muhammad Nurul Huda for Appellant.
This appeal is against the decision of the Additional Subordinate Judge, Noakhali, in Title Appeal No. 12 of 1949, reversing the decision of the Munsif, 1st Court, Lakshmipur in Other Class Suit No. 13 of 1948.
The plaintiff is the appellant before me. She instituted this suit for the dissolution of her marriage with the defen dant on the ground of Wan or false imputation of unchastity.
She was married to the defendant in Bhadra, 1348 B. S., corresponding to August/September 1941, and the dower was fixed at Rs. 1,000 of which Rs. 200 was prompt and the rest deferred. The defendant was at that time in military service ; so, about a month 'after the marriage, he left to resume his duties keeping the plaintiff at her father's house. In the first part of 1,351 B.,S., the defendant came home on leave and lived with his wife for 20 or 25 days when the marriage was consummated. The defendant finally came home for good in Falgoon or Chaitra, 1352 B. S. But unfortunately as difference arose between the defendant and the plaintiff's father over money matters, he brought a false criminal case against one Ibrahim Munshi and another under section 498 of the P. P. C. and therein charged the said Ibrahim Munshi, who was the husband of the elder sister of the plaintiff, with having committed adultery with the plaintiff. This criminal case was dismissed and the accused in it were discharged, as no case had been made out against them. The plaintiff claimed that she was a chaste lady and had never committed adultery with anybody. Hence she was compelled to bring this present suit.
The defendant denied the above, allegations generally and in particular that he ever imputed any unchastity to the plaintiff. In paragraph 4 of his written statement, he further denied that he had ever made the allegations contained in the petition of complaint filed in the Criminal Court. He stated that they were wholly false and that the petition had been drafted according to the wishes of the Muktear whom he had engaged and who had given a false colouring in the said petition to the allegations which he wished to make in order to get back the plaintiff whom he loved very much. After such denial, the defendant went to declare that if the statements in the petition of complaint were in the nature of an accusation of unchastity against the plaintiff, then he also retracted them.
The said suit was taken up for hearing on the 15th of December 1948; and after some evidence had been led and the petition of complaint proved, the defendant on the nest day filed an affidavit retracting his charge of adultery against his wife. In his evidence‑in‑chief also, what he stated was this :‑
"So I filed a criminal case against Ibrahim and another for getting my wife back. I did not get it written in the petition of complaint that my wife had illicit connection with Ibrahim. The statement to that effect in the petition of complaint is false. I am repentant for this, I retract from this statement. She is a chaste lady".
Then again in cross‑examination, he stated
"I retract if there is any bad allegation against my wife in the petition of complaint".
The petition of complaint clearly contained such an allegation and his deposition in the criminal trial filed with this case and marked Exh. 2 also supported the allegations in the petition" of complaint which he there claimed to have been written according to his own version, read over to him and signed by him. Upon these facts, the trial Court came to the view that the retraction in the written statement was only conditional and the retraction in the affidavit filed on the 16th of December 1948, was of no effect, as it had been filed after the commencement or the trial and after most of the evidence had been adduced :n the case, and hence it decreed the suit with costs.
On appeal, the only question that was urged was that the trial Court was not right in saying that the retraction was only conditional and of no effect. The learned Subordinate Judge accepted the contention of the appellant and, although he agreed with all the findings of fact of the trial Court, he held that the trial Court was wrong in reading the retraction in the written statement as merely a conditional retraction. According to the learned Subordinate Judge, the retraction was a bona fide and an honest one showing that the husband was repentant and was, therefore, a valid defence under the Muhammadan Law to such a suit for dissolution of marriage on the ground of Wan. Hence he allowed the appeal, reversed the decree of the learned Munsif and dismissed the suit.
It is from this decision that the plaintiff has come up on appeal before this Court. Mr. Nurul Huda appearing on her behalf has assailed the decision or the learned Subordinate judge solely on the ground that the ;earned Subordinate judge has erred in law in holding that the retraction was, in the present case, a proper and valid retraction in accord ance with the principles of Muhammadan Law. He, of course, even sought to argue that the theory of retraction has no place at all in the procedure of our own Courts, relying upon some observations of the Bombay High Court in the case of Ahmed Suleman v. Bai Fatma (I L R 55 Bom. 160). This contention of the learned Advocate, however, is not correct, for, all that their Lordships of the Bombay High Court said in that case was that the procedure of li an, as provided under the Muhammadan Law, was not available under the procedure followed in the British Courts and that it was not necessary when a party came for divorce on that ground, to give an express opportunity of retraction to the husband, even though such an opportunity may appear to have been given under the strict form of Wan as laid down under the Muhammadan Law.
There is abundant authority for the proposition that although this is not a ground for dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939, it is still available as a ground for divorce to Muslims and that such a divorce may be asked for by a regular suit instituted for that purpose. It is, therefore, necessary to examine what exactly this doctrine is and how far it has been given effect to by the Courts in this sub‑continent.
In Hamilton's Hedaya, Book IV, Chapter X, Volume I. p. 348 (First Edition), it is stated
"And on both making imprecation in this manner, a separation takes place between them ; but not until the Kazi pronounces a decree to that effect . . . If, after imprecation, the husband should acknowledge that his accusation was false, by saying "I falsely laid adultery to her charge", he becomes privileged with respect to her, that is to say, it is lawful for him to marry her as well as any other person . . . . . If a husband, after imprecation, contradict himself, by acknowledging that he had accused his wife falsely, let the Magistrate punish him, because he then acknowledges himself, liable to punishment : and it is afterwards lawful for the husband to marry her again (according to Haneefa and Muhammad), because, having once suffered punishment for slander, competency to make imprecation no longer appertains to him ; and the prohibition which is the effect of the imprecation is re moved".
Again m Baillie's Digest of Muhammadan Law, Book 111, Chapter X. page 335 (1865 Edition), the legal effect of Wan has been thus described :‑
"The legal effect of Wan, as soon as it has passed between the parties, is to render sexual intercourses between them, and all excitement to it, unlawful ; but a separation is not effected by the mete Wan. So that if the husband should repudiate his wife while in this condition by an irrevocable repudiation, it would take effect ; or if he should retract, by declaring that he lied, intercourse would again become lawful without a renewal of the marriage. It is a condition of Wan that the wife shall demand it, and if the husband refuses to take the Wan, the judge should imprison him until he submits or retracts by giving himself the lie, whereupon he would become liable to the hudd for scandal. If he take the Wan, it is then obligatory on the wife to do so ; and if she refusas, the judge should imprison her till she takes it, or acknowledges the truth of the charge. It is better for the woman to abandon litigation and refrain from suing ; and, if she should not abandon it, but persists in bringing the matter before the Judge, he should ask her to abandon it by saying, "Abandon and refrain from this matter". If she does so, good and well ; but if she persists in her demand, she is entitled to do so, even though a considerable time should have elapsed ; for, this right is a right of the individual, and such a right does not drop by delay in prosecuting it".
In Ameer Ali's Muhammadan Law, Vol. II, page 529. 5th Edition, the principle has been enunciated thus :‑
"When both the parties have taken the oath in the prescribed form and the charge has been conclusively estab lished, the Kazi must draw tip an order of separation between the parties, and, in accordance with such decree, the husband must divorce his wife. If he refuses to do so, the judge himself is to pronounce a divorce between them. The marriage, however, continues in existence, with all its concomitant rights, until the judge has made the order. . . . Under the Hanafi Law, however, if the husband retracts the accusation and undergoes the punishment for slander, or if it is found subsequently that, at the time of the proceeding, one or the other of the two parties was labouring under some legal disability which would have invalidated the li an, or, if either of them should apostatize and then return to Islam, they can contract a re‑marriage".
At page 528 again, the learned author states
"It is a condition of li an that the wife should demand it, and if the husband refuses to take the oath, the judge is empowered to imprison him until he submits or retracts, in which case he becomes liable to the punishment for slander".
It will thus be seen that according to the texts the original rule of the Muhammadan Law was that retraction to be valid must be such as will give the husband the lie and he will be visited with punishment for slandering his wife. It seems to me, therefore, that upon these authorities a retraction to be a valid retraction under the Muhammadan Law must imply an admission of having made the charge and then E acknowledging such a charge as false. Where, therefore, a person denies having made the charge and says that, if such a charge has been made, he is prepared to retract, that is not sufficient to constitute a retraction according to the rules of Muhammadan Law, for, thereby he saves himself from punishment for slander or perjury in the previous trial if any, as also defeats the wife's suit for dissolution of marriage.
That such a retraction was not contemplated by Muhammadan Law is clear also from the very authority relied upon by the learned Subordinate judge himself which, according to me, the learned Subordinate judge has misread. I refer to the case of Rahima Bibi v. Fazil (I L R 48 All, 834). In this case, after the evidence on both sides had been recorded, the defendant was advised to retract. He had himself already given evidence on oath and had stated that he had never accused his wife of adultery. In this, he was contradicted by various witnesses of a very reliable character who swore that he had made such an accusation face to face with them. In such circumstances, an admission that the allegation was false would have involved him in a proceeding for perjury. He, therefore, acting upon the advice given to him executed a document proclaiming the innocence of his wife and prayed to the Court that that document may be treated as a retraction of the alleged accusation which he denied ever having made. In these facts, Mears, C. J. and Sulaiman, J. both were in favour of the view that the document was not a retraction at all. Chief Justice Mears thought that it was not a retraction "because it lacked the., necessary element, namely, the withdrawal of a statement previously made".
Similarly, Sulaiman, J. observed that
"The defendant never admitted that he had made the accusation and that it was false. The real basis of the procedure of the Muhammadan Law seems to be that when the wife appeals to the (nazi and asks for the dissolution of the marriage on the ground that he has been falsely accused by her husband of adultery, it is open to the husband to admit that he made a false accusation and thereby render himself criminally liable, or to substantiate the accusation. In the present case, the defendant did not offer to substantiate the accusation, and at the same time took good care to save himself from all criminal liability. The whole object of the retraction was to obtain an admission by the husband of his having wrongly slandered his wife, on the basis of which he could be punished forthwith".
This view also seems to be supported by a more recent decision of the Allahabad High Court in the case of Mst. Banno Begam v. Inayat Husain and another (A I R 1948 All. 34) where the view was taken that the retraction must be a frank withdrawal of the charge. Relying upon the passage of the Hedaya, which I have already quoted, that is to say that the retraction concerned must be to the effect that he "falsely laid adultery to her charge".
Applying these principles to the facts of the present case, it is clear that there was no such retraction.
The reference to the other decision given in the judgment of the learned Subordinate judge is evidently wrong, for, there is no case relating to divorce or retraction at p. 492 of 70 Cal. L J. In that volume, however, there is a decision of Akram, J. as he then was, at page 289, where His Lordship also took the view that the retraction in that case was not unconditional. The retraction in that case also was contained in the written statement and was to the effect that if it be proved by the just decision of the Court that the husband brought a false case of adultery against his wife, the husband would withdraw the accusation. This also does not, therefore, lay down any contrary principle.
The Lucknow case of Mst. Fakhre Jahan Begum v. Muhammad Hamidullah Khan (I L R (1929) 4 Luck. 168) referred to by Akram, in this judgment was a case in which the husband from the very first moment admitted the accusation to have been made by him. He made no attempt to substantiate it and expressed his regret. It was held that in those circumstances it was a valid retraction.
These necessary elements were wanting in the present case. The husband never admitted that he made the allegation of unchastity and therefore, the retraction in the C present case was, as held by the learned Munsif, only a conditional retraction and not a valid retraction according to the Muhammadan Law. The learned Subordinate Judge was, I therefore, wrong in taking a contrary view.
Since this is the only ground upon which the lower appellate Court has reversed the judgment of the learned Munsif, this appeal must, in my view, succeed. The judgment and decree of the lower appellate Court is accordingly set aside and that of the Munsif restored. The appellant will be entitled to her costs throughout.
Z. A. S./A. H.
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