Lakshmi Narain, J.C.
1. The Sessions Judge, Tripura, has referred this motion under Section 438, Cr.P.C. with a recommendation that the conviction and sentence under Section 494, I.P.C. passed on the accused Suroj Mia, Abdul Hamid, Habibullah & Siddio petitioners by Sri S.M. Ali, Magistrate 1st Class be set aside on the ground that the girl Anjuma had already divorced Abdul Majid complainant and therefore her marriage with Suroj Mia after the divorce does not bring home an offence under Section 494, I.P.C. It is alleged in the complaint that Suroj Mia married her with the help of other accused.
2. Two registered documents have been produced by the accused in this connection. One is a kabilnama dated 3.7.47 executed at the time of marriage between Abdul Majid complainant and Anjuma Bibi. By means of para. 4 of this kabilnama, Abdul Majid delegated the powers of divorce to his wife if among other conditions he married elsewhere and caused unhappiness to Anjuma.
3. There is yet another registered document dated 7.8.50 produced by the accused by which Anjuma divorced Abdul Majid on the authority of the delegated power of divorce in the kabilnama dated 3.7.47. In the latter document it is clearly stated that Abdul Majid had married another wile and was living with her. It is also stated therein that Abdul Majid had been ill-treating Anjuma.
4. The view taken by the learned Magistrate that Anjuma should have got her divorce declared valid by a Court of law is not supported by any authority. This view is wrong. When there is a contract between husband and wife at the time of marriage empowering the latter to divorce herself in specific contingencies and which she exercises at the happening of any of them, the divorce will take effect to the same extent, as if it had been pronounced by the husband. It does not require any declaration from a Court of law. The power given to her by the husband is in itself quite sufficient.
5. Abdul Majid in his statement has admitted that he has married another wife. He has also admitted that he did execute the kabilnama mentioned above. J
6. It is given in para. 314 (page 269) of Mahomedan Law by Mulla 1950 Edition that
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 and are not opposed to the policy ,of the Mahomedan law. When such an agreement is made, the wife may, at any time after the happening of any of the contingencies, repudiate herself in 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.
7. This reference is accepted with the result that conviction and sentence passed on the accused petitioner under Section 494 I.P.C. is set aside. The accused are acquitted. The fine imposed If paid, is to be refunded.