1. This appeal arises a question of the validity of an agreement in relation to a Mahomedan marriage, which seem to me to be concluded by authorities which I feel compelled to follow, even if I did not agree with them.
2. A Mahomedan husband sues his wife for restitution of conjugal rights. The wife alleges that in breach of an agreement, made on the 1st of March 1921, (an ante nuptial agreement) she is entitled to, and has, in fact, divorced her husband. The lower appellate Court held that there is no proof that the defendant exercised the option of divorce and it also rightly held that the agreement gave no power to the wife to divorce. In my opinion the question of divorce is a side issue, which really does not arise. The real question is whether the agreement is binding upon the husband so as to disentitle him to bring a suit for restitution of conjugal rights.
3. The agreement is not correctly set out in the written statement. In fact, it appears to me to have been deliberately mis stated in the written statement. The material portion of the agreement made by the husband before the date of marriage, as translated into English, runs as follows:
I shall live at the house of wife's mother and shall always live with my wife. If I do not live at her house or live at any other place, I shall have no concern with Mt. Khatun Bibi (the wife), daughter of Mt. Marki (mother in-law), and she will have a right to marry Mt. Khatun Bibi to whomsoever she likes. I shall have no concern with Mt. Khatun Bibi again. I shall not live at any other place without the permission of Mt, Maiki or Khatun Bibi.
4. Two things are clear from the agreement. The word 'she' refers to the mother. There is no provision giving the wife power to divorce, or an option to exercise that power. The appellant contends that the power given to the mother to re-marry her daughter is use less without a previous divorce and that the right to divorce must be implied. That is in a sense true: but it is equally true that interpreting the agreement as it is the power given to the mother is in effectual, in fact, without a prior right of divorce residing in the wife. I do not think that it is legitimate to infer or rather to insert into an agreement a provision which is not there, in order to decide whether the agreement itself is valid or not, or whether it is against public policy. The appellant relies upon a passage in the 1894 Edition of Ameer Ali's book on Muhammadan Law, which recognising the obvious fundamental right of the Muhammadan husband to compel his wife to live with him, states that the law recognizes express stipulation entered into at the time of marriage respecting conjugal domicile, and that, if a husband has agreed to let his wife live at her father's house, he cannot afterwards force her to leave it, which, of course, in this case, he is trying to do by a suit for restitution of conjugal rights. No authority is quoted for that proposition, which probably is only true within limits, which the author has not fully explained. Further, reliance is placed upon Hamidoolah v. Feizuunissa (1882) 8 Cal 327, where it is held that the Muhammadan Law permits the delegation by the husband to the wife of the power of divorce on certain occasions. That does not arise in this case, because the agreement contains no such delegation. The case also holds that an ante-nuptial agreement with reference to the residence of the wife may be valid, if of a reasonable nature. The provision in that case was not that the husband should live at the wife's father's house, but that the wife should be taken to her father's house four times a year. Clearly that case has no bearing upon the present question.
5. On the other hand, there seems to be a fairly clear current of authorities that an agreement by which the husband binds himself to live, presumably for all time so long as the marital relationship continues in his wife's house, is invalid: prima facie it would clearly be so, because it is inconsistent with the fundamental rule of Muhammadan Law, and it is an attempt to bind the liberty of the subject which, as a general rule, is against public policy. The question first arose in Hamid-un-Nissa Bibi v. Zohir-ud-din Sheik (1890) 17 Cal 670, where, without deciding the question because it was unnecessary to do so, the Court, which included the Chief Justice of Bengal, expressed great doubt whether such a stipulation could be valid in any case. That was in 1890. In 1904, in Abdul Piroj Khan v. Hussenbi (1904) 6 Bom LR 728, a Bench, including the Chief Justice, held that it was not competent for the husband and wife to enter into an agreement, by which the husband consented that his wife might live with her parents. That is different from this case. The permission there was not so strong, but, of course, it was a surrender of the husband's ordinary right to decide the residence for himself and his wife. In 1910, in Imam Ali Patwari v. Arfatunnissa AIR 1914 Cal 369, it was held positively by Mr. Justice Stephen and Mr. Justice Mullick, that a condition in kabinnamah that the husband should live with a wife in her father's house and that she would be entitled to divorce him if he did not was invalid in Muhammadan Law. That case is really applicable here. In 1916 another Court in Calcutta, neither of the members of which was a Muhammadan, took the same view after going into the law, and considering the previous decision reported as Imam Ali Patwari v. Arfat-un-Nissa AIR 1914 Cal 369 to which I have already referred. That case is reported as Imam Ali Patwari v. Arfat-un nessa AIR 1916 Cal 223. There is finally the authority of the Punjab High Court in 1920, Fatima Bibi v. Nur Muhammad AIR 1920 Lah 328, in which the matter was gone into very thoroughly and the judgment was delivered by a well-known Muhammadan lawyer, Mr. Justice Abdul Raoof.
6. In the face of all these authorities, I hold that this agreement to the extent to which it bound the husband to live with his wife at her father's house was invalid and could not constitute a defence which was the real defence set up at the trial to a suit for restitution of conjugal rights. I am deciding the point somewhat differently to the way in which it was dealt with in the Court below although in substance the decision is the same. No question, in my opinion, of a divorce arises in this case at all and if it did the finding of the lower Court, that the so-called option in favour of the wife had never been exercised, would be fatal to it in any event. The appeal must be dismissed with costs in this Court on the higher scale.