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Mir Azmat Ali Vs. Mahmud-ul-nissa - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All96
AppellantMir Azmat Ali
RespondentMahmud-ul-nissa
Excerpt:
.....can be no doubt that unless a man is entitled by means of the civil courts to put to silence a woman who falsely claims to be his wife, the man and others may suffer considerable hardship, and his heirs may be harassed by false claims after his death. the suit for jactitation, however, is one not to be encouraged, particularly in a country like this, in which persons unfortunately are too anxious to discover forms of legal procedure by which they can annoy their neighbours......which would forbid the institution of a novel description of suit to set aside a mere assertion. a suit for jactitation of marriage is not by any means a novel description of suit: it was a suit in which relief was given in england in the ecclesiastical courts, and when the jurisdiction of those courts was transferred to the divorce court by the act of 1857, the jurisdiction of the ecclesiastical courts in suits for jactitation of marriage was transferred to the divorce court. in england it was not only a well-known suit within the jurisdiction of the ecclesiastical courts, but it was considered proper that that jurisdiction should be continued by the divorce court in england, and there can be no doubt that unless a man is entitled by means of the civil courts to put to silence a woman.....
Judgment:

John Edge, C.J. and Blair, J.

1. This is a suit for jactitation of marriage which was brought by a Muhammadan, named Mir Azmat Ali, against one Musammat Mahtnud-ul-nissa. She had taken proceedings against him in the Magistrate's Court on more than one occasion to obtain orders of maintenance for herself and her child on the allegation that she was the wife of Mir Azmat Ali and the child was their child. The first Court dismissed the suit, finding for the defendant that she was the plaintiff's wife. The plaintiff appealed. The first appellate Court dismissed the appeal on the ground that such a case came within the ruling of the Privy Council in Rajah Nilmony Singh v. Kally Churn Bhattacharjee L.R. 2 I.A. 83, and that consequently the suit did not lie. But the case before the Privy Council was a very different one. The decision apparently is one which would forbid the institution of a novel description of suit to set aside a mere assertion. A suit for jactitation of marriage is not by any means a novel description of suit: it was a suit in which relief was given in England in the Ecclesiastical Courts, and when the jurisdiction of those Courts was transferred to the Divorce Court by the Act of 1857, the jurisdiction of the Ecclesiastical Courts in suits for jactitation of marriage was transferred to the Divorce Court. In England it was not only a well-known suit within the jurisdiction of the Ecclesiastical Courts, but it was considered proper that that jurisdiction should be continued by the Divorce Court in England, and there can be no doubt that unless a man is entitled by means of the Civil Courts to put to silence a woman who falsely claims to be his wife, the man and others may suffer considerable hardship, and his heirs may be harassed by false claims after his death. The suit for jactitation, however, is one not to be encouraged, particularly in a country like this, in which persons unfortunately are too anxious to discover forms of legal procedure by which they can annoy their neighbours. In our opinion, however, such a suit lies in a Civil Court in this country. The Court trying such a suit will of course take care, before granting a plaintiff a decree, to see that it is strictly proved that the defendant did seriously allege that the disputed marriage had taken place and that the plaintiff did not acquiesce in the claim or allegation of the defendant as to the disputed marriage, and further that in fact no marriage had taken place between the parties. We set aside the decree of the Lower Appellate Court, and remand the case under Section 562 of the Code of Civil Procedure to that Court to be disposed of upon the merits.


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