1. The view that dower, when the payment of it has not been stipulated to be deferred, should be deemed to be payable on demand, appears to me to be most reasonable and most in accordance with the dictates of common sense; but although it is stated by Macnaghten to be the rule of the Muhammadan law, I am constrained to hold in concurrence with the lower Courts that the greater weight of authority is in favour of the doctrine set forth in Baillie's Digest, p. 126+. The inquiry info the custom with the view of determining the portion of the dower-debt payable promptly was therefore proper; and when the question could not be decided by reference to custom, it was proper to determine it with reference to the status of the woman and the amount of the fixed dower. I see no reason to think that the lower Appellate Court has not exercised a sound discretion in awarding one-fifth of the total amount of that dower as the portion of which the appellant may fairly claim prompt payment.... I would disallow the objections taken by the respondent under Section 348 of the Procedure Code.... The first is also bad, for the circumstance that the appellant did not demand her dower before leaving the respondent's house does not preclude her from demanding it when restitution of conjugal rights is claimed; and the circumstance that they have already cohabited with consent since their marriage does not preclude her from refusing further cohabitation until the portion of her dower payable to her has been paid, see Abdool Shukkoar v. Raheemoonnissa H.C.R. N.W.P. 1874 p. 94. The case is one governed by the Muhammad an law, and not by the general law of contract. The appeal should in my judgment be dismissed with costs.
Robert Stuart, C.J.
2. The question of dower in this case arises under peculiar circumstances, and appears to demonstrate another anomaly in the Muhammad an law on this subject. The claim to dower is not made directly by the wife, but by way of answer to a suit at the instance of her husband, the plaintiff, for restitution of his conjugal rights. She on the other hand, while admitting her intimacy with the plaintiff and that she lived in his house, denies that she was over married to him, and although thus contending that she is not his wife, she nevertheless claims the rights of one. The Subordinate Judge finds as a fact (agreeing in this respect with the Munsif) that a marriage between the parties did take place. Any contract, however, between them as to dower is, from the very nature of the case, and especially having regard to the defendant's plea, necessarily excluded, and her claim to dower, therefore, must rest entirely on the Muhammadan law applicable to a woman in her position. She claims in the way explained Rs. 5,000, and that she is entitled to demand it as prompt dower, and to have it paid before she returns to the plaintiff's house. The plaintiff, the husband, admits the amount, hut says that as there was no agreement as to the nature of it, it must be presumed to be deferred dower. It might be supposed reasonable that before a woman could put forward her claim to the dower at all, she ought in the first place to put herself in the right position for asking it by doing her duty as a wife by her husband, and by returning to cohabitation with him, especially as it cannot be said that she left his house because of his refusing her dower. But this reasonable and natural state of things does not appear to find a place in Muhammadan law, according to the principles of which system, on the contrary, a wife can refuse herself to her husband till her dower, being prompt, has been satisfied. But in the present case, although the amount is admitted, and, in the absence of proof to the contrary, must be regarded as prompt, yet the Subordinate Judge considers Rs. 5,000 to be excessive, basing the opinion apparently on his estimate of the defendant's character, whom he describes as a prostitute 'belonging to a like family,' and he considers that one-fifth of the amount claimed as prompt dower is sufficient. I am not disposed to quarrel with this conclusion, nor with his order as to costs. I would therefore dismiss the special appeal, and, as to costs of this Court, I would direct that both parties should hear their own.
+ See, also Fatima Bibi v. Sadruddin 2 Bom. H.C.R. 307, were the law stated in Baillie's Digest was followed, on the other hand, see Jumeela v. Mulleeka, W.R. 1864 p. 252, were the law stated in Macnaghter's principles was followed; and Tadiya v. Hosanebiyari 6 Mad. H.C.R. 9, where apparently the same law was followed.