Norman Macleod, Kt., C.J.
1. The parties to the suit are Sunni Mahomedans. The plaintiff filed the suit against her husband to recover her dower. The facts are that the parties were married in 1912, the defendant agreeing to pay as prompt dower 525 putlis. Five months after the marriage the plaintiff gave birth to a fully developed child. Though it must be presumed that the marriage was consummated as the parties lived together for sometime after the marriage, the child was begotten by an unknown father. The defendant turned the plaintiff out of his house shortly after the child was born, but it has not been proved that he divorced her. No question of limitation, therefore, arises. The dower agreed upon was prompt and could be sued for.
2. The plaintiff obtained a decree in the trial Court but this decree was reversed by the learned District Judge on the ground that the marriage was invalid owing to the concealment of pregnancy, and since cohabitation during pregnancy was contrary to Mahomedan law the initial invalidity could not be cured by illegal cohabitation.
3. Now although marriage is spoken of as a contract and no doubt in the first instance there must be an agreement between the parties to marry, the performance of the contract accompanied by the appropriate ceremony involves a change of status. The contract is merged in the new status acquired by the parties, and as long as that status continues so long do the rights and liabilities of the parties under the contract continue. There may be facts which, if proved, will bring about the cancellation of the marriage, in which case the parties will be relegated to the position they occupied before the marriage as if there had been no contract at all, or the marriage bond may be dissolved by divorce. But we have not been referred to any authority for the proposition that an agreement to pay dower can be separated after marriage from the marriage status and can be treated as voidable on the ground of fraud, while the marriage bond continues.
4. The plaintiff as long as she is a wife can sue for her dower unless the defendant can show there was no marriage at all. Where, however, a man marries a woman, and upon the condition that she is a virgin provides a dower higher than the proper dower, he is only bound to pay the proper dower if it is proved that she does not comply with the condition of virginity: Radd-ul-Muktar, Vol. 2, p. 374. Ameer Ali in Vol. II, p. 434 (4th Edn.) of his work on Mahomedan law says : 'under the Shiah law, when a man marries a woman stipulating her to be a virgin, and finds her not one, he has no power to cancel the marriage. Under the Sunni law there is a divergence of opinion, some of the jurists agreeing with the Shiah doctors, others holding that if the husband has been fraudulently deceived, he would have a right of option. The latter is the generally accepted view.'
5. I think it can be inferred from these authorities that where concealment of pregnancy is not by itself a ground for cancelling the marriage, the husband has his remedy by divorce.
6. Though it might be said that there is an implied condition in a marriage contract that the bride is a virgin, still unless there is an express stipulation, the over agreed upon must be paid.
7. We have been referred to Amir Ali, Vol. II, p. 408 as an authority for the proposition that a marriage is invalid where consent has been obtained by force or fraud. It is true that the proposition was accepted in the case of Abdul Latif Khan v. Niyaz Ahmed Khan (1909) 31 All. 343. But it was found in that case after the marriage that the bride was so ill that consummation was impossible, so that the suit by her representatives after her death for her dower was dismissed. There were grounds therefore apart from the question of fraud for treating the marriage as a nullity, which is a different matter from setting aside a contract for dower on the ground that an implied condition has been broken.
8. The Court said, there was concealment of a fact which should have been brought to the notice of the husband in order to obtain his free consent to the marriage and so a fraud was perpetrated on him at the time of the marriage.
9. This is going further than the law as stated by Amir Ali appears to go. If fraud can be a ground for cancellation of marriage it must be express and not implied.
10. In my opinion, therefore, the plaintiff is entitled to succeed. This appeal must be allowed and the decree of the trial Court restored with costs throughout.
11. The appeal being allowed, there must be the usual order for payment of Court fees by the respondent under Order XLIV, Rule 1, read with Order XXIII, Rule 10.
12. The marriage contract under the Mahomedan law is not a bare contract. Amongst Mahomedans, as amongst others, marriage brings about a change of status, which introduces conditions different from those which result from a bare contract. The difference is well illustrated by a consideration of the differences in result and in remedy following from (a) a breach of a promise to marry; and (b) a marriage brought about by deception. In the first case the contract is broken; in the second it is fulfilled, though one party or the other may have been deceived and may obtain something different from what he or she bargained for. What is obtained however is a wife or a husband as the case may be and that, as I understand it, is enough under Mahomedan law.
13. That law provides ample remedies in the case of a husband, and here it was the husband who was deceived. He may divorce his wife.
14. The marriage in this case was not, I think, invalid. It was not prohibited or irregular, and the only ground asserted for invalidity is founded on deception. That is a ground which, as I understand the theory of the Mahomedan law of marriage, is not enough. The case of Abdul Latif Khan v. Niyaz Ahmed Khan (1909) 31 All. 343 may suggest that deception may invalidate a marriage, but in that particular case the object of the marriage could not be fulfilled the wife was too ill. If in the present case the wife claimed that she was the defendant's wife, the claim would, I think, have to be allowed, unless it was shown that the defendant had divorced the plaintiff.
15. As the marriage was a valid marriage it follows that the dower can properly be claimed unless the claim can be defeated either by the provisions of the Mahomedan law or by some relevant provision of the law of contract. We are unable to find anything in the Mahomedan law which forbids the claim to dower in such a case as the present.
16. Nor does the law of contract forbid it unless we can imply some term in the contract vital to the right to dower, which implied term was not fulfilled. There is no implied term that the wife shall be a virgin. Is there an implied term that she shall not at the time of marriage be with child by some man other than the husband? It would not, I think, be irrational to imply such a term; but we are unable to find that it has ever been done.
17. I am not prepared to introduce what would apparently be a new feature into the law regulating marriage in the case of Mahomedans, so I agree to the order proposed by my Lord the Chief Justice.