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Taufik-un-nissa Vs. Ghulam Kambar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1875)ILR1All506
AppellantTaufik-un-nissa
RespondentGhulam Kambar
Excerpt:
muhammadan law - dower. - .....deferred. the plaintiff contends that, under such circumstances, the entire amount is exigible as prompt dower on demand, though she only claims in this suit a portion. the defendant contends that in such a case the custom of the place should ho referred to, and by the custom of budaun the entire dower is to be considered as deferred. the lower court has dismissed the claim, with reference to what it holds to be the custom. it considers that when there has been no specification of dower, the law requires that a reference should be made to custom to determine not only the proportion of the dower which shall be considered to be prompt, but whether any at all shall be so considered, and it holds that in budaun it is the custom to consider the whole as deferred. this judgment cannot be.....
Judgment:

Oldfield, J

1. This is a claim to recover Rs. 25,000 as prompt dower. It is not disputed that the amount of dower stipulated for at marriage was Rs. 51,000, and it is admitted that it was not specified at the time whether the dower was prompt or deferred. The plaintiff contends that, under such circumstances, the entire amount is exigible as prompt dower on demand, though she only claims in this suit a portion. The defendant contends that in such a case the custom of the place should ho referred to, and by the custom of Budaun the entire dower is to be considered as deferred. The lower Court has dismissed the claim, with reference to what it holds to be the custom. It considers that when there has been no specification of dower, the law requires that a reference should be made to custom to determine not only the proportion of the dower which shall be considered to be prompt, but whether any at all shall be so considered, and it holds that in Budaun it is the custom to consider the whole as deferred. This judgment cannot be supported. The law on the point is that stated in Baillie's Digest from the Fatawa Kazee Khan, which has been followed by this Court in recent decisions--Eidan v. Mazhar Husain 1. L.R. 1 All. p. 483; Habib-un-Nissa v. Nizam-ud-din, decided the 31st July 1877 (unreported). When nothing has been said as to the character of dower, the Court may determine the amount to lie considered prompt with reference to the position of the woman and the amount of the dower named in the contract, taking into consideration at the same time what is customary. The reference to custom appears to be in respect of the proportion to lie held as prompt, and it does not appear to have been contemplated to refer to custom to decide whether or not the entire dower should be deferred. We have been shown a translation of an extract from Jami-ur-Rumuz, a commentary on Mukhtasar Vakaya, which will, however, bear another construction. However this may he, we do not concur with the Subordinate Judge in holding that any custom is proved by which the entire dower is considered deferred. (After considering the evidence as to the custom the judgment proceeded as follows): We hold that neither by law or custom is the plaintiff debarred from obtaining prompt dower, and we consider Rs. 17,000, or one-third of the total dower, a reasonable sum to award. We reverse the decree of the lower Court and decree accordingly with all costs.


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