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Ummat-ur-rahman Vs. Zafar Husain - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in(1919)ILR61All278
AppellantUmmat-ur-rahman
RespondentZafar Husain
Excerpt:
.....p. in order to obviate the evils which would necessarily result from a denial of all evidence to the injured husband, in those numerous instances where he is morally convinced of the guilt of his wife, but has no direct testimony to establish it, or when he alone is cognizant of the fact, the law has prescribed the proceeding by laan'.the muhammadan law of evidence being no longer in force and the ordinary courts having taken the place of kazis, these courts are the authorities which should make a decree for divorce on being satisfied according to the ordinary rules of evidence that a false imputation was made by the husband and it is unnecessary to comply with the formalities of laan......allegation of misconduct against his wife and the wife denies the same, both parties can go to the kazi. the husband, in the presence of the kazi four times over repeats his allegation of misconduct, before the kazi strengthens it by an oath, that oath accompanied by the use of the word 'laan' or curse of god. the wife gives testimony also four times over and accompanies her testimony by the use of the word 'ghazab'. if either of the persons refuse to make laan, the kazi is to imprison that person who refuses until he or she makes the laan. if both husband and wife have made their respective oaths, etc, the kazi can effect separation between them.6. the kazi in the present day is replaced by the court, and, as noted above, the court has found against the husband and has pronounced the.....
Judgment:

George Knox, J.

1. This second appeal arises out of a suit brought by Musammat Ummat-ur-Rahman, wife, against Zafar Husain, her husband. The prayer by the plaintiff is that the marriage of the plaintiff with the defendant be dissolved. There is a further prayer for damages and costs. The reason given is that the defendant has treated the plaintiff with cruelty, intends to kill her or cut off her nose, stated before several persons that the plaintiff had illicit intercourse with her brother, Aziz-ur-Rahman, and imputed fornication to her.

2. The written statement filed by Zafar Husain is to the effect that the plaintiff's claim has been brought on false allegations. There was no ill-feeling between the plaintiff and himself nor quarrel. No charge has been made by the husband against the wife of misconduct with her brother. The story had been invented by the members of the wife's family. The plaintiff is literate and sensible and has always been obedient and doing her duty towards the defendant.

3. The court of first instance, i.e., the Subordinate Judge of Farrukhabad, is a Muhammadan by creed and he has gone very carefully into the case. He declared the marriage to be dissolved. The husband then went in appeal to the Additional District Judge of Farrukhabad. This Judge found that the Civil Courts have jurisdiction to try suits of this nature. That the doctrine of 'Laan' is still part of the Muhammadan law which has to be administered in Indian Courts. I shall refer to the doctrine of Laan again. He found that the allegations of misconduct were as a matter of fact made by the husband, that there had been no retraction by the husband. He held as the result that the lady was entitled to claim judicial separation. He confirmed the decree of the court of first instance. He also found upon the plea that no fair opportunity had been given to the husband to examine the witnesses against the husband, that the husband had had such opportunity, but had not availed himself of it. The husband has come here in second appeal and the memorandum of appeal contains seven pleas--(1) that the law of 'Laan' has no place on Anglo-Muhammadan law and must be considered obsolete; (2) that 'Laan' does no more than give the wife the option of applying to the court to put the husband upon the alternative of either retracting the accusation or stating on oath his wife's treachery and no suit for dissolution of marriage is maintainable without the above formality being strictly complied with; (3) that the husband has not only not made the accusation of his wife's infidelity on oath, but has sworn his wife to be faithful to him and sued his wife for restitution of conjugal rights, and that assuming that the husband charged his wife with infidelity, the statement of the husband on oath coupled with the statements in the duly verified plaint and his whole course of conduct amounted to a retraction of the accusation; (5) that no suit for dissolution of marriage was maintainable; (6) that the appellant was prejudiced by no proper opportunity being given to him for the production of his evidence, and lastly, that the appellant is entitled to a decree for restitution of conjugal rights.

4. I propose to deal first with the 6th plea. Both the courts below show that abundant opportunity was given to the appellant for examination of his witnesses. It was his own fault that he did not take the necessary steps in payment of process fees and fees for interrogatories, etc. That plea entirely fails.

5. I now come to the question raised by the plea relating to Laan. Muhammad Yusuf Khan Bahadur in his Muhammadan Law, Volume II, Edition 1898, page 352, et seq., gives a full account of 'Laan', and the accuracy of the account there given has not been seriously questioned. Briefly put, it is that when a Muhammadan makes an allegation of misconduct against his wife and the wife denies the same, both parties can go to the Kazi. The husband, in the presence of the Kazi four times over repeats his allegation of misconduct, before the Kazi strengthens it by an oath, that oath accompanied by the use of the word 'laan' or curse of God. The wife gives testimony also four times over and accompanies her testimony by the use of the word 'Ghazab'. If either of the persons refuse to make laan, the Kazi is to imprison that person who refuses until he or she makes the laan. If both husband and wife have made their respective oaths, etc, the Kazi can effect separation between them.

6. The Kazi In the present day is replaced by the court, and, as noted above, the court has found against the husband and has pronounced the separation between husband and wife. No authority has been cited, nor do I know of any, which has pronounced that the doctrine of 'laan' has no further place in Anglo-Muhammadan law or that it should be considered, obsolete. Mr. Muhammad Yusuf Khan Bahadur mentions it as still prevalent. Sir R.K. Wilson in his Anglo-Muhammadan Law, 4th Edition, 1912, paragraph 76, says: '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', and in the next chapter deals with it as still part of the Anglo-Muhammadan Law. The first plea is therefore decided against the appellant. Baillie in his Muhammadan Law after describing the form of 'laan' goes on to say, page 338: 'When both parties have taken the laan the Judge is to separate them'. The second plea that no suit for dissolution is maintainable until the husband has been given the option of retraction of the accusation of his wife's adultery has not been supported.

7. This disposes of the remaining pleas in appeal. I agree with the lower appellate court and would dismiss the appeal.

Pramada Charan Banerji, J.

8. I also am of opinion that this appeal should he dismissed and the decree of the court below affirmed. The main question in the case is whether a Muhammadan wife is entitled to bring a suit for divorce and obtain a decree for dissolution of marriage on the ground that her husband has falsely charged her with adultery. The defendant denies having made such a charge, but both the courts below have found that he made it and imputed to the wife incest with her own brother and that this imputation was wholly without foundation. We have therefore to consider whether in those circumstances the plaintiff is entitled, under the Muhammadan law, which must govern questions of marriage and divorce, to have it declared that her marriage with the defendant has been dissolved. The authorities of Muhammadan law on the subject have been laid before us, and in my opinion they clearly establish that she is entitled to such a declaration. The law on the subject is thus stated in Shama Charan Sircar's Muhammadan Law, Tagore Law Lectures for 1873, at p. 406: 'If a husband charges his wife with adultery... the charge is investigated by the Kazi who, upon proof thereof, issues a decree of separation between the husband and the wife and thus their marriage is dissolved. The Separation so effected is an irreversible divorce'.

9. Mr. Ameer Ali lays down the rule in the following terms in volume II, of his well-known work on Muhammadan law, p. 575, 3rd edition: 'Where a false accusation (of adultery) is preferred against a woman, and the husband is unable to establish the charge, the woman is entitled to obtain a divorce from the court'. The same view is propound in Sir Rowland Wilson's Anglo-Muhammadan law and in the Tagore Law Lectures by Khan Bahadur Muhammad Yusuf in the passage cited by my learned colleague.

10. It is contended on behalf of the appellant that the proceeding known as laan in the Muhammadan law should have been gone through and this not having been done in this case the marriage between the parties has not been dissolved and the marriage tie has not been severed. Having regard to the authorities this contention is untenable. The proceeding known as Laan or imprecation is only a procedure which either the wife or the husband could adopt before a Kazi or Judge. The reason for it is thus stated by Ameer Ali: 'Under the Musalman law, a charge of adultery preferred by a husband against his wife can only be established by the direct testimony of four witnesses to the fact. From the nature of the offence, however, the cases in which ocular and direct evidence is available are extremely rare. In order to obviate the evils which would necessarily result from a denial of all evidence to the injured husband, in those numerous instances where he is morally convinced of the guilt of his wife, but has no direct testimony to establish it, or when he alone is cognizant of the fact, the law has prescribed the proceeding by laan'. The Muhammadan law of evidence being no longer in force and the ordinary courts having taken the place of Kazis, these courts are the authorities which should make a decree for divorce on being satisfied according to the ordinary rules of evidence that a false imputation was made by the husband and it is unnecessary to comply with the formalities of laan. This is also the opinion of Mr. Ameer Ali and Sir Rowland Wilson, and this seems to be the legitimate inference to be drawn from the rules of Muhammadan law on the subject.

11. The only reported case to which our attention has been drawn is that of Jaun v. Beparee (1), in which the learned Judges observed that 'a charge of adultery does not operate as a divorce'. No authority is cited in support of this view, nor was it decided that a decree for divorce could not be passed by the court under the circumstances alleged. If the learned Judges intended to hold that a Muhammadan wife cannot sue for divorce, or a court cannot grant a decree declaring her marriage dissolved, on the ground that her husband had charged her with infidelity, I am unable, with great respect, to agree with them, the authorities of Muhammadan law being clear on the point.

12. I agree with the courts below that there was no retraction of the charge and I am of opinion that the decree appealed against is correct.

By The Court.

13. The appeal is dismissed with costs.


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