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Khatijabibi Umarsaheb Vs. Umarsaheb Ansersaheb - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 273 of 1926
Judge
Reported inAIR1928Bom285; (1928)30BOMLR447; 110Ind.Cas.131
AppellantKhatijabibi Umarsaheb
RespondentUmarsaheb Ansersaheb
DispositionAppeal dismissed
Excerpt:
mahomedan law-divorce-true allegation by husband of wife's adultery-wife no entitled to ditorce by reason of the allegation-indian oaths act (x of 1873), sections 8, 9, 11-oath in 'laan' form-not binding on parties.;under mahomedan law, an innocent wife who proves that her husband falsely charged her with adultery is alone entitled to a divorce, and not where the wife is proved to be guilty.;zafar husain v. ummat-ur rahman (1919) i.l.r. 41 all. 278 and rahima bibi v. fazil [1926] i.l.r. 48 all. 834; followed.;a special oath in the form prescribed for 'laan' by mahomedan law is not permissible in british indian courts. a special oath to be binding must conform to the provisions of the indian oaths act 1873. - - it is not necessary to refer to the following verse as to the well-known..........above, we see no reason to hold that it differs from other systems of jurisprudence or entitles a wife guilty of adultery to divorce, to say nothing of meher. on the contrary, the verses and the context merely point to the principle that in cases where there are no eye witnesses or other evidence, an innocent wife's own denial in the proper form should be accepted. the procedure, however it might be applicable in mahommedan countries and where no other evidence exists, is not applicable in the courts in british india. we agree with the remarks of mr. ameer ali on this point rather than with the observations of mr. tyabji in his note 194 at p. 248 of the principles of muhammedan law (second edition). we cannot agree with the learned pleader for the appellant that the oath, which, on the.....
Judgment:

Madgavkar, J.

1. This was a suit by the appellant wife against the respondent husband for a dissolution of marriage under the Sunni Mahomedan law by which the parties are governed and for the amount of the Meher or dower fixed at the time of the marriage, on the ground that the husband had falsely charged her with adultery. The suit was defended by the respondent on the ground that the charge was true. Both the lower Courts have found that the appellant was guilty of adultery and dismissed the suit for divorce, the trial Court holding that the claim for Meher was premature. The wife appeals.

2. Before evidence was led in the case, the pleader for the wife; applied that both the parties should be put upon special oath. The Court granted the application and each took an oath under the form prescribed for 'Laan' with the necessary imprecations. The husband asserted, the wife denied the charge. Thereupon the pleader for the wife asked the Court to pass a decree for divorce immediately on the ground, that the wife was so entitled under Mahomedan law. The trial Court held that she was not so entitled and that it was necessary to proceed to record evidence and findings upon the issues. Evidence was then recorded on both sides and a finding as to adultery was recorded against the wife, and her suit was dismissed.

3. It is argued for the appellant in this Court that the special oath complied with the form of 'Laan' laid down under the Mahomedan law and that the appellant is, therefore, entitled to a decree for divorce, even if we accept in second appeal the finding that she has been guilty of adultery. Reliance is placed on the observations of Sir Roland Wilson in his Anglo Mahammedan Law, 5th Edition, p. 148, which are as follows:-

The fact of a husband having (whether truly or falsely) charged his wife with adultery, will (probably) entitle her to claim a judicial divorce, without prejudice to any proceedings for defamation which she may be advised to institute, and independently of the result of any such proceedings.

4. For the respondent, reference is made to Baillie, p. 836, and the observations of Mahomed Yusoof Khan Bahadur in his Tagore Law Lectures, Vol. III, para. 2822. It is contended that under Mahomedan law, it is only au innocent and not a guilty wife, who is entitled to a divorce and that the procedure for 'Laan' is only applicable to cases where there is no evidence aliunde as to adultery.

5. The relevant verses from the Koran are to be found in Sura, xxiv, verses 6 to 9. The sixth verse is as follows (Muhammad Ali 2nd Edn., p. 597) :-

And (as for) those who accuse their wives and have no witnesses except themselves etc.

6. Then follow the swearing four times, and imprecation the fifth time, first by the husband and similarly by the wife, if she wishes to avert punishment. It is not necessary to refer to the following verse as to the well-known incident of the slandering of the Prophet's wife Ayesha at p. 289 of Muir's Life of Mahomed. In his Mahommedan Law, Vol. II (fourth edition), at pp. 591, 592, Mr. Ameer Ali observes :-

As M. Sautayra points out, in countries where the Mussulman Law is not in force, the proceeding by laan has fallen into diause.... The disapprobation with which the proceeding of laan is regarded by Moslem jurists, is shown by the directions contained in the Sharaya and the ' Fntaumi Alamgiri'

7. The oldest case on the point is Jaun Beebee v. Sheikh Maonshee Beparee (1865) 3 W.R. 93. That was a suit by the husband for restitution of conjugal rights and therefore is not relevant. The other cases on the point are Zafar Husain v. Ummat-ur Rahman I.L.R (1919) All. 278 and Rahima Bibi v. Fazil Q, in both of which the wife sued for divorce on the ground that her husband had falsely charged her with adultery and succeeded, the Courts holding that the charge was false.

8. Taking the Mahomedan law of divorce in its entirety and the verses of the Koran quoted above, we see no reason to hold that it differs from other systems of jurisprudence or entitles a wife guilty of adultery to divorce, to say nothing of Meher. On the contrary, the verses and the context merely point to the principle that in cases where there are no eye witnesses or other evidence, an innocent wife's own denial in the proper form should be accepted. The procedure, however it might be applicable in Mahommedan countries and where no other evidence exists, is not applicable in the Courts in British India. We agree with the remarks of Mr. Ameer Ali on this point rather than with the observations of Mr. Tyabji in his note 194 at p. 248 of the Principles of Muhammedan Law (second edition). We cannot agree with the learned pleader for the appellant that the oath, which, on the application of the pleader for the plaintiff, the parties were allowed to take in the lower Court, ipso facto, entitles the wife, even if she were found on the evidence to be adulterous, to a divorce.

9. We doubt if the learned Subordinate Judge should have acceded to the application for the plaintiff for these special oaths. They could only be administered under Section 8 of the Indian Oaths Act (X of 1873). But neither party offered under Section 9 to be bound by the oath of the opposite party. Without such undertaking, it could not be conclusive proof under Section 11 of that Act. The whole procedure, therefore, was of doubtful utility.

10. Further, there is authority that where, as here, an illegitimate child is in existence, no room is left for the right or the procedure of 'Laan'; Hedaya, p. 23 and p. 124. To hold otherwise would be contrary to all principles of Mahomedan law and of morality. We agree, therefore, with the view in the Allahabad cases and are of opinion that, procedure apart, an innocent wife who proves that her husband falsely charged her with adultery is alone entitled to a divorce, and not, as in the present case, the wife who is proved to be guilty.

11. We dismiss the appeal with costs throughout on the plaintiff-appellant.


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