1. This is an appeal against a decree for dissolution of marriage passed by the learned City Civil Court Judge in a suit filed by the wife against her husband and the ground on which the dissolution has been decreed is that the husband made a false and frivolous allegation of adultery against the plaintiff.
2. The ground on which the appeal is preferred is that the husband before the end of the trial retracted the charge made against his wife and-admitted that it was a false charge and Mr. Jethmalani says that the effect of that retraction under the Mahomedan law is to disentitle the wife to a decree for dissolution. .
The attitude of the husband can only be characterised as disgraceful. He treated his wife with cruelty. She left him as far back as 1947. She applied to the Presidency Magistrate for maintenance under Section 488, Criminal P. C. The Magistrate made an order of maintenance awarding her Rs. 15 per month arid we are told by Mr. Taraporewala, her counsel, that the husband has not paid the amount of maintenance. She then filed a suit for Mehr and a decree has been passed against him in the Small Causes Court. That decree has also not been satisfied.
It was after this order for maintenance was made that the husband filed an application before the Magistrate and charged the wife with adultery and wanted the order of maintenance to be vacated. Now, the suit was filed by the wife on various grounds. She alleged that her husband' had subjected her to unnatural sexual intercourse, ill-treated her and also charged her with adultery.
The suit was filed on 14-7-1952, and this accusation of adultery was made by the husband in his application to the Magistrate on 12-2-1952. On 8-8-1952, the plaintiff applied for an amendment of the plaint and by this amendment she took this further ground for dissolution of marriage that her husband had falsely accused her of adultery. The husband filed a supplementary written statement to the amendment of the plaint which was allowed by the learned Judge, and by this written statement he admitted that the charge made by him was baseless and he withdrew the charge. The question that arises for our determination is what is the effect of this retraction on the part of the husband.
The learned Judge took the view that in view of the decision of this Court in -- 'Ahmed Suleman v. Bai Fatma', AIR 931 Bom 76 the-right accruing to the husband on a retraction was a pure rule of procedure which no longer governed the civil Courts in India.
Turning to this decision, we must point out, with respect to the learned Judge, that that is not really the effort of that decision. All that Mr. Justice Madgavkar points out in his judgment at p. 76 is that there is no longer an obligation on an Indian Court to give an opportunity to the husband to retract a charge made against his wife of adultery. But we are not dealing here with a case where no opportunity was given to the husband. We are dealing with a case where there is a specific retraction by the husband, and Mulla's Mahomedaan Law, 13th Edn., sums up the law in the following tenns (p. 280) :
'The effect of the decisions, excluding what are merely 'obiter dicta', would appear to be that a retraction of the charge by the husband at or before the commencement of the hearing disentitles the wife to a decree, but she is entitled to a decree if the retraction is made after the close of the evidence, or of the trial. The High Court of Bombay has expressed the opinion that retraction 'has no place in the procedure in British Courts'.'
Now, this last sentence in Mahomedan law does not correctly express the decision referred to.
As we have just pointed out, what the High Court of Bombay has held is not that retraction has no place in the procedure in Indian Courts but that Indian Courts are not bound to give the husband an opportunity to retract. In other words, if there had been no retraction by the husband and a decree for dissolution had been passed, it could not have been contended in appeal that the learned Judge was bound to give the husband an opportunity, and having not done so, the decree for dissolution was not valid.
This statement of the law that a wife is disentitled to a decree for dissolution if the husband retracts before the close of the evidence or before the end of the trial is borne out by a judgment of the Allahabad High Court in -- 'Rahima Bibi v. Fazai', : AIR1927All56 (B). At p. 58 Sulaiman J. discusses the real basis of the procedure Of the Mahomedan law which, according to the Seamed Judge, is that
'....when the wife appeals to the 'qazi' and asks for the dissolution of the marriage on the ground that she 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',
and at the foot of that page the learned Judge says:
'. ...These passages (from the authorities of theMahometan Law) show conclusively that for aproper retraction the husband must acknowledgethat he had falsely accused his wife, and thathe must be punished on his own acknowledgment.'
Therefore, in order that the retraction should be a valid retraction, three conditions are necessary; (1) the husband must admit that he made a charge against his wife of adultery, (2) he must admit that that charge was false and (3) he must make the retraction before the end of the trial. The result of his carrying out the second condition would be to make himself liable to be criminally prosecuted. Therefore, although a retraction permits the husband to successfully resist the wife's suit for dissolution of marriage, it penalizes him for having made a false charge against her by making him liable to criminal prosecution.
Now, it seems to us that on the record here all the three conditions have been satisfied by the husband. He has admitted that he made a charge of adultery against his wife; he has admitted that that charge was baseless and he has made these admissions by his written statement long before the end of the trial or close of the evidence. Therefore however regretfully we must come to the conclusion that the learned Judge was not right, in passing a decree for dissolution in view of the retraction on the part of the husband.
But apart from this ground, as already pointed out, the suit is based on various other grounds and the learned Judge has failed to frame the necessary issues and try them. What we propose to do, therefore, is to ask the learned Judge to frame the proper issues on the various allegations made by the wife in the plaint which would entitle her to a decree for dissolution, try those issues and submit his findings on those issues to us. Pending the receipt of the findings on those issues, the appeal will stand over.
The findings on the issues will be returnedwithin three months from the receipt of the writby the Court below. The parties will be allowedto lead evidence on the issues framed by thelearned Judge.
3. Order accordingly.