1. This is an appeal by Bibi Rehana Khatun whose suit to recover Rupees 25,500 as prompt dower from the defendant Iqtidar Uddin Hasan has been dismissed by the Civil Judge of Budaun. The plaintiff claims Rs. 25,500 as being a half of Rs. 51,000 fixed as dower, there having been no sum specified as prompt dower. The defendant alleges that there was no valid marriage as he entered into it under undue influence and similarly under undue influence the amount of Rs. 51,000 was fixed as dower, that there was a divorce by the Eela form in September 1933 so that this claim is time-barred, that the suit is not maintainable as there was no prior demand, that in any case the amount fixed as prompt dower should not exceed one fifth of Rs. 51,000 and finally that he, is entitled to pay only by instalments in view of the provisions of the Agriculturists' Relief Act. The learned Civil Judge found in favour of the defendant on all these, points and in addition he found against the plaintiff on the ground that she did not willingly enter into the marriage. It was never the case of the defendant that the plaintiff did not willingly enter into the marriage and in fact such an assertion would have been contrary to the ease that the marriage is invalid owing to undue influence. The learned Civil Judge held that the plaintiff had not proved that she willingly entered into the marriage and that she had said that it was after the marriage that she came to know that she had been married which showed that at the time of the marriage she was not willing. Actually the statement of the plaintiff was that when she was married she knew that she was married and obviously she could not know that she was married before she was actually married. As it had never been suggested that she had not willingly entered into the marriage, she did not specifically mention that the marriage had taken place with her consent. There should have been no finding by the learned Civil Judge on this point which was not a point at issue but in any case there is no evidence to support his view.
2. The first point that I shall consider is whether the marriage is invalid owing to undue influence having been exercised on the defendant. The defendant is the son of Khan Bahadur Fasihuddin who was a retired Collector and who died in 1938. The plaintiff is the daughter of Faizuddin, brother of Fasihuddin, so that the parties are first cousins. What the learned Civil Judge found to be undue influence amounts to no more than this that the father of the defendant might or would have ceased to give pecuniary help to the defendant had he not married the plaintiff. There was no duty on the defendant's father to continue to help the defendant who at the time was about 25 years of age and had started practising as a lawyer. It may be that the defendant's father put before the defendant an unpleasant alternative of marrying the girl and receiving financial assistance or of not marrying the girl and receiving no such assistance, but it cannot possibly be said that the placing of this alternative before the defendant amounted to undue influence. When the defendant was asked to state what was the undue influence, he said that on the part of the father of the plaintiff it amounted to a threat to break off the relationship and, on the part of the defendant's father, it was a threat of depriving the defendant of financial support and eventually inheritance. It is obvious that there was no undue influence on the defendant on the part of the plaintiff's father and that the plaintiff's father was in no position to exercise undue influence on the defendant's father who was an elder brother so that it cannot be said that any influence brought to bear upon the defendant by his father came either from the plaintiff or from the father of the plaintiff. The same undue influence is alleged as regards fixing the amount of the dower. I am bound to find, therefore, that there was no undue influence exerted. Learned Counsel for the defendant has referred to Bindu v. Mt. Bugli ('09) 1909 P.R. 73 where it was held that a marriage ceremony did not bind a purdahnashin woman as the facts showed that she had not consented and had been practically only a spectator of the ceremony, but that decision cannot help one to decide the present case.
3. I will next consider the alleged divorce by the Eela form. The defendant's case is that on the day after the Rukhsat ceremony in the month of September 1933 his parents pushed him into a room with his wife and that he at once took a vow in the presence of his wife that he would never have sexual intercourse with her, that immediately afterwards he came out of the room and repeated the vow in the presence of his mother and his mother's sister, that his father then came out of another room and he once more repeated that vow.
4. This form of divorce is rare and Amir Ali in an early edition mentions it saying that it had fallen into desuetude and in a later edition does not mention it at all. It appears (vide Hamilton's Hedaya or Taiyahji's Mohammedan Law) that it is a vow by a husband not to have sexual intercourse with his wife for four months or more and, if the vow is kept, under the Hanafi law there is an automatic divorce on the expiry of the period of four months. To prove the taking of this vow, the plaintiff besides himself has examined his mother, Mt. Akhtar Bano, and her sister, Mt. Neyaz Bano, as well as certain witnesses who say that either the defendant or the defendant's father mentioned that such a vow had been taken. On the other hand, the plaintiff has produced a brother of her father and of the defendant's father and the husband of their sister. They both say that they never heard of this Eela vow having been taken by the defendant. They are equally closely related to the parties and had such a vow been taken and had the defendant's father mentioned it to anyone he would naturally have mentioned it to his brother and to his brother-in-law before mentioning it to mere friends. There is also on the record, EX. A, a letter by the father of the plaintiff to the defendant, dated 5th February 1938, in which the plaintiff is clearly referred to as being the wife of the defendant. When the defendant was asked about this letter he was unable to say that he had answered saying that he had divorced the writer's daughter. There is no documentary evidence to show that there had been this Eela vow and the subsequent conduct of the defendant was not that of a man who asserted that he had divorced his wife. It may be that as the defendant was not keen on this marriage he did say on the night after the Rukhsat that his wife would be a wife in name only but this does not amount to an Eela vow. The mere fact that he made the assertion, if this was really so, first in the presence of his wife, then immediately afterwards to his mother and finally to his father makes me doubtful as to the assertion being a vow. A vow is a solemn thing not taken in a moment of excitement and not repeated as it is said to have been repeated here.
5. It is the case of the defendant that he entered into this marriage not to lose the financial help that his father was giving him and it seems unlikely, therefore, that he would have taken a vow of Eela which, if his father was prepared to cut off his allowance would probably have the same result as would have had a refusal on the part of the defendant to marry the plaintiff. If the defendant really meant on the night after the Rukhsat to divorce the plaintiff, there is no reason why he should not have done so by the ordinary form of divorce instead of resorting to this rare Eela form of divorce. On the other hand, an equivocal declaration would have had manifest advantages for the defendant, namely if it was taken to be a divorce and a claim for prompt dower had been made he could have answered that it was not really an Eela vow while if it was not considered by any one at the time to be an Eela vow but eventually a suit for dower was filed he could say that it was time-barred as there had in fact been a divorce in the year 1933. The defendant had opportunities to take a firm stand at different times for he could have refused to carry out the Nikah ceremony, the Rukhsat ceremony and the Bahora ceremony but he did not do so, so that his making an equivocal declaration instead o taking the Eela vow fits in more with his conduct on other occasions. The defendant is an only son and the evidence of his mother and of his mother's sister as to this Eela must be received with caution. As regards the evidence of witnesses to the affect that either the defendant or the defendant's father mentioned the taking of an Eela vow, they may well have regarded a mention of a refusal of the defendant to have sexual intercourse with his wife as being an Eela vow. I consider that there is considerable doubt as to whether what the defendant did or said amounts to the Eela form of divorce and it was for the defendant clearly to establish that there had been a divorce in the Eela form.
6. Learned Counsel for the defendant-appellant has further urged that even if the marriage was valid and there was no divorce, prompt dower is not payable because it is not proved that there was connubial inter, course between the parties. Learned Counsel has not been able to quote any authority in support of his view and indeed the authorities are against him. Amir Ali says : 'The prompt portion of the Mahr may be realised by the wife at any time before or after consummation.' Tyabji says : 'Mahr may be prompt or exigible, i.e., payable immediately after marriage if demanded by the wife or be deferred.' Sircar on p. 351, para. 270 says: 'Dower is usually divided into two parts, one prompt which is payable immediately.' Counsel has referred to Hosseinoodden Chowdree v. Tajunnissa Khatoon (1864) 1864 W.R. 199 at page 201 where it was stated that prompt dower was payable from consummation. This, however, was not the point to be decided and it was a mere obiter dictum. Learned Counsel has also urged that it is not proved that a demand had been made by the plaintiff before filing this suit and, therefore, this suit does not lie. This contention was raised in a case reported in Mohammad Taqi Ahmad Khan v. Farmoodi Begam : AIR1941All181 where it was held that a suit in such circumstances is at once a suit for determination of the amount and for its recovery and for the success of such a suit a previous demand and refusal of an ascertained sum of money is not a condition precedent.
7. I have, therefore, found that there was a valid marriage, that there was. no valid divorce, that prompt dower can be claimed In the suit so that it is now to be decided what proportion of the amount of Rs. 51,000 must be held to be prompt dower. For the plaintiff half that sum has been claimed but the learned Counsel has not been able to show that this proportion of a half has been held proper in other cases. In Eidan v. Mazhar Hussain ('75-77) 1 All. 483 one-fifth out of 5000 was held to be prompt dower but the learned Counsel urges that in that ease the wife had formerly been a prostitute and it was due to this that the small proportion of one-fifth was fixed. In Taufik-un-nissa v. Ghulam Kambar ('75-77) 1 All. 506 the dower was Rupees 51,000 and one-third was held to be prompt. Learned Counsel has also referred to Mirza Bedar Bukht Muhammad Ali Bahadoor v. Mirza Khurrum Bukht Yahya Ali Khan Bahadoor ('73) 19 W.R. 315 at p. 319 where their Lordships of the Privy Council held that the whole of the dower was prompt but this was a case of Shias. In the 1941 case to which I have already referred, it was held that there was no such practice as that of awarding one-third and no good purpose would be served by taking as precedent the proportion fixed in reported eases and each case would have to be considered on its own merits. The first Court had considered Rs. 16,000 out of Rs. 80,000 to be an adequate proportion and this Court held that it was substantially just. In Umda Begam v. Muhammadi Begam ('11) 33 All. 291 one-fifth had also been fixed by the first Court and this Court held that there was no reason to interfere with it. In Mt. Fatima Bibi v. Nur Muhammad ('20) 7 A.I.R. 1920 Lah. 328 though the dower was only a sum of Rs. 100 again one-fifth was fixed as prompt dower.
8. In Mohammad Taqi Ahmad Khan v. Farmoodi Begam : AIR1941All181 the question of the principle on which the figure of prompt dower be fixed has been considered. It was pointed out that according to Mulla the proportion of prompt dower was regulated by custom and, in the absence of custom, by the status of the parties and the amount of dower settled, and in Mt. Maimuna Begam v. Sharafat Ullah Khan : AIR1931All403 it had been stated that the status of the family, the amount of the dower and the custom, if any, prevailing in the plaintiff's family were to be considered. Reference was also made to the Fatawah Alamgiri that regard should be had to the woman and the dower mentioned in the contract in addition to custom. The difference is only whether the status of the wife or the status of the parties should be considered and that is immaterial here as the wife and the husband are children of brothers. The plaintiff is the daughter of a Tahsildar and her uncle, that is to say the father of the defendant, rose to the rank of a Collector before he retired. From the evidence on the record, I gather that the parties, though not especially wealthy, were at any rate well off and cannot be said to have been poor for the status occupied. There is no evidence showing that there was any custom. Taking into consideration, therefore, the status of the family of the parties and the amount of dower which was Rs. 51,000, I think that a sum of Rs. 12,000 is suitable as prompt dower.
9. There is the final contention of the respondent's counsel that the defendant is entitled to the provisions of the Agriculturists' Relief Act and, therefore, a decree for payment by instalments should be passed. For this to be done it must be shown not only that the defendant is an agriculturist but also that the transaction is a loan or is in substance a loan. In my opinion, dower can-not be called a loan as there has been no advance. I would, therefore, set aside the decision of the Court below dismissing the suit and grant the plaintiff a decree for Rs. 12,000 plus interest pendente lite and future interest at the rate of 6 per cent. As the plaintiff has claimed a considerably larger sum than what I think I consider due, costs should be in accordance with the proportion of success and failure of the parties.
10. I concur.