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Kalloo Vs. Mt. Imaman - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1949All445
AppellantKalloo
RespondentMt. Imaman
Excerpt:
.....explained that this position was clearly affirmed by the fact that while the act did contain provisions regarding cases in which the wife claimed relief on grounds other than a false imputation of adultery by her husband it had none for a case of that particular class. in his judgment observed that i am not prepared to express any opinion as to what the position would have been if the husband in the written statement had behaved like an honest man and made a full unequivocal retraction. this must necessarily mean that the act did not intend to lay down any method by which a claim made under that clause could be defeated by the husband. 10. a brief consideration of the tendency of the courts in india, even prior to this enactment, would clearly suggest that the technical rule of l'aan..........ground altogether. it held that after the passing of act viii [8] of 1939, the dissolution of muslim marriages act, a plea of retraction of a false charge of adultery was no more available, inasmuch as the said act which was self-contained did not lay down any procedure by which such a charge could be subsequently retracted with the object of avoiding the dissolution of the marriage. the learned civil judge explained that this position was clearly affirmed by the fact that while the act did contain provisions regarding cases in which the wife claimed relief on grounds other than a false imputation of adultery by her husband it had none for a case of that particular class. he also remarked that the act did not recognise a retraction made by a husband after the institution of a suit.....
Judgment:

Mushtaq Ahmad, J.

1. This is a defendant's appeal arising out of a suit by his wife for dissolution of marriage on the ground that the defendant had falsely charged her, the plaintiff, with adultery. The defendant in his written statement admitted having made such an accusation and also that it was false, but he, at the same time, expressed regret for his conduct and retracted the charge.

2. One of the issues before the Courts below was whether, after the above retraction by the defendant-husband, the plaintiff wife was still entitled to a decree for dissolution of her marriage. The trial Court held that she was not, but the lower appellate Court found that she was so entitled. The present appeal is against the latter decree.

3. The ground on which the trial Court held the retraction made by the defendant-appellant to have nullified the legal effect of the charge of adultery was that a Mohamedan husband being given a locus panitennia either to affirm or deny the imputation alleged to have been made by him had also the liberty in the former case of retracting the same at any time before the evidence in the suit for dissolution of the marriage was closed. The lower appellate Court, however, proceeded to decide the case on a different ground altogether. It held that after the passing of Act VIII [8] of 1939, the Dissolution of Muslim Marriages Act, a plea of retraction of a false charge of adultery was no more available, inasmuch as the said Act which was self-contained did not lay down any procedure by which such a charge could be subsequently retracted with the object of avoiding the dissolution of the marriage. The learned civil Judge explained that this position was clearly affirmed by the fact that while the Act did contain provisions regarding cases in which the wife claimed relief on grounds other than a false imputation of adultery by her husband it had none for a case of that particular class. He also remarked that the Act did not recognise a retraction made by a husband after the institution of a suit by his wife.

4. Two points have been urged before me by Mr. Sanyal, the learned Counsel for the appellant, the respondent not being represented before me. One was that retraction made by a husband of charge of adultery against his wife after a suit for dissolution of the marriage by the latter had been filed, if made before the termination of the evidence, must be accepted and given effect to. As I have pointed out, in this case the retraction was made by the defendant in the written statement which he filed in the suit. There is no question that the retraction, so far as it went, was sufficiently full and complete in its form and there is no trouble on that score. The second point urged by the learned Counsel was that Clause (9) of Section 2 of Act VIII of 1939 itself suggested that the provisions of Muslim law, even as regards retraction, were kept in tact by the legislature and that the Act did not have the effect of abrogating those provisions.

5. As regards the first question, the leading case of this Court is that of Zafar Husain v. Ummat-ur-Bahaman A.I.R. (6) 1919 ALL. 182. That case is only an authority for the proposition that a suit for dissolution of marriage lies on the ground of a false charge of adultery. Another case of this Court is that of Mt. Rahiman Bibi v. Fazal : AIR1927All56 , in which a retraction made by the husband after the evidence of both the parties had closed was not accepted, Mears C.J. in his judgment observed that

I am not prepared to express any opinion as to what the position would have been if the husband in the written statement had behaved like an honest man and made a full unequivocal retraction.

Sulaiman J. who delivered a separate though concurrent judgment did not disagree with this observation.

6. This case, therefore, is in no way Against the appellant, as it proceeded on its own peculiar facts which are not present in the case before me. Indeed, the passage quoted by me, to my mind, implies that the learned Chief Justice would have accepted a retraction made by the husband in his written statement as quite in time. In the case of Shamsunnessa Khatun v. Mir Abdul Mannaf : AIR1940Cal95 a retraction made in the written statement was not accepted as having been made after the commencement of the hearing. That view was evidently based on an erroneous conception of the precise stage when the hearing of a suit is deemed to commence. The first hearing in a suit commences when the Court looks into the pleadings in order to formulate the points in controversy between the parties. In cases in which the issues are framed on the day the evidence begins, the hearing no doubt will be deemed to commence on that date. But where issues have to be framed on a date fixed for that purpose the hearing certainly commences when the Court takes up the case to frame the issues. This is possible only after the defendant has filed his written statement. In the present case the defendant made the retraction in the written statement which he filed, so that he made the retraction before-or at and not after the commencement of the hearing. In this view, I think, the lower appellate Court was wrong in suggesting that the retraction must be made before the institution of the suit. The learned Judge, while holding on the second point raised before me that there was no place in Act VIII [8] of 1939 for a plea of retraction, curiously remarked that:

the intention of the Legislature as expressed in the enactment appears to be that the retraction of the husband after the institution of the suit for getting the suit dismissed is not to be considered by the Court.

This was obviously a confusion of thought in so far as it imagined the rule of retraction as embraced by the scope of the Act.

7. In Mt. Fahhre Jahan Begam v. Mohammed Hamidullah Khan A.I.R. (16) 1929 Avadh 16 a retraction was made by the husband in his written statement, and the learned Judges held that the same was valid and could not be ruled out on the ground that it had not been made at an earlier stage.

8. The lower appellate Court has not cited any ruling in support of the proposition that unless a retraction was made prior to the institution of such a suit or even prior to the tiling of the written statement, it would be invalid under the Muslim law. I entirely endorse the contention of Mr. Sanyal that even when the present functions of the Court were discharged by the Kazi, the wife had to take her complaint to him and it was there that the husband was called upon either to admit or to deny the accusation against his wife. If he admitted the charge, then no doubt he had to take the prescribed oath accompanied by the necessary imprecation which constituted what is known as I'aan under the Muslim law. I, therefore, hold: that a retraction made by a husband in his written- statement after his wife has filed a suit for dissolution of her marriage on the ground of a false charge of adultery by him against her, cannot be rejected merely on the ground of de-lay or made only to defeat the suit.

9. I have discussed the first question argued by Mr. Sanyal on the assumption that the rule of Muslim Law, so far as the formality of l'aan, is concerned, was still in force in this country. The law relating to dissolution of Muslim marriages is now contained in Act VIII [8] of 1939, which professes 'to consolidate and clarify the provisions of Muslim law' relating to that subject. While the Act enumerates the grounds in Section 2 of it, on which a wife can claim dissolution of her marriage, it also prescribes the procedure to be followed in giving effect or finality to the decrees, passed on some of those grounds. This procedure is contained in the proviso to the section. Clause (9) of the section, however, relates to 'any other ground which is recognised as valid for the dissolution of marriages under Muslim Law.' It is noticeable that the procedure mentioned in the proviso refers only to decrees passed on the grounds mentioned in some of the clauses of Section 2 of the Act, and it makes no reference to cases covered by Clause (9) at all. This must necessarily mean that the Act did not intend to lay down any method by which a claim made under that clause could be defeated by the husband. The preamble to the Act aims at making the Act a complete and self-sufficient enactment, laying down the grounds for dissolving a Muslim marriage. If the Legislature also contemplated that the rule of I'aan, as understood in Muslim law, should continue to be followed in India, by means of which a husband, who had falsely charged his wife with adultery, could, by an act of his own, evade the normal consequences of his conduct, they must have certainly provided for it in the Act itself, particularly when a detailed procedure was enacted in regard to claims made by the wife under some of the other clauses of Section 2 of the Act.

10. A brief consideration of the tendency of the Courts in India, even prior to this enactment, would clearly suggest that the technical rule of l'aan under the Muslim law had long since ceased to have judicial approbation. The rules of evidence under the Muslim law having themselves been replaced by a statutory enactment, the Evidence Act, much of what we found in the original Muslim law of procedure, must be taken to have been abrogated as a natural and necessary consequence. Ameer Ali in vol. II of his Mohammedan Law, 4th Edn. pp. 591 and 592 remarked as follows:

As M. Sautayra points out, in countries where the Muslim Law is not in force, the proceeding by I'aan has fallen into disuse. The Algerian Kazis, notwithstanding that the practice of I'aan is becoming obsolete, still continue to administer the Musalman Law in those cases where the parties choose to institute the proceedings.

Disapprobation with which the proceeding of I'aan is regarded by Moslem jurists, is shown by the directions contained in the Sharaya and the Fatawai Alamgiri.

11. In Ahmad Suleman Vohra v. Mt. Rai Fatma A.I.R. (18) 1931 Bom. 76 it was held that:

This express opportunity of retraction, even if necessary under the strict form of I'aan as laid down under the Mohammedan Law has no place in the procedure in British Courts.

This view was in accordance with an earlier Bench decision of the same Court in Khatijabibi Umarsaheb v. Umarsaheb Ansersaheb A.I.R. (I5) 1928 Bom. 285 in which it was pointed out that;

The procedure, however it might be applicable in Mahometan countries and where no other evidence exists is not applicable in the Courts in British India.

12. This, therefore, was the tendency not only in British Indian Courts but also among Muslim jurists with regard to the rule of I'aan in this country, even prior to the passing of Act VIII [8] of 1939, That is because the rules of evidence in Muslim law have now been replaced by an entirely different set of provisions contained in the Evidence Act. The formality of I'aan, if strictly observed, embraces a number of declarations which appear to have been deemed as too artificial in modern society, and that is why we find no provision in our statute law as preserving any of those rules. On the contrary, the Evidence Act is in itself a complete enactment and deals with all conceivable forms and formalities of procedure which the Courts in India may have to follow. And this accounts for the restricted scope of Act VIII [8} of 1939, which, except in certain specified-cases, does not preserve the rule of procedure of Muslim law in cases in which a wife sues for the-dissolution of her marriage on the ground of a false charge of adultery.

13. In a case reported in Mian Said Ahmad Jan v. Mt. Sullan Bibi A.I.R. (30) 1943 Pesh. 73 decided after the said Act, it was definitely held that the provisions of this Act were not subject to the rules of Muslim law but were complete and self-sufficient. This, in my view, was the only natural and accurate interpretation of the scope of this particular enactment.

14. As we know, the rule with regard to the administering and effect of oath in India are now contained in the Oaths Act X [10] of 1873, which, under Section 8 of it, provides for the power of the Court to tender oath to a person in judicial proceedings. Section 9 of the Act empowers the Court to decide a dispute between the contending parties merely on the basis of the oath taken by either of them, if the other undertakes to abide by it, otherwise such an oath only cannot form the basis of its decision. This obviously means that there is now no place for the rule of I'aan in the Muslim law of Marriage as now followed in India. While the law, as contained in Act VIII [8] of 1939, retains the validity of all those grounds for the dissolution of a Muslim marriage, which were valid under the Muslim law, it nowhere prescribes that in case the dissolution is sought on the ground of a false charge of adultery against the wife, its effect can be nullified if the husband retracts the charge. To import such a position would be adding an exception or a proviso to Clause (9) of Section 2 of the Act, and thereby enlarging the scope of the Act itself. That would be straying into the domain of legislation.

15. I have, therefore, come to the conclusion that the lower appellate Court was right in holding that the retraction made by the defendant-appellant in this case was wholly ineffective under the law, as it now stands, and that the plaintiff-respondent was entitled to a decree for the dissolution of her marriage.

16. I, accordingly, dismiss this appeal. As the respondent is unrepresented, there is no question of her costs.

17. Leave to appeal under the Letters Patent is allowed.


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