1. This is an Execution First Appeal arising from an objection raised to the attachment of certain property. The respondent is a purchaser of a decree for dower which had been passed in favour of Saiyid-un nissa deceased against Ali Hasan her husband. Ali Hasan died during the execution proceedings and Saiyid-un-nissa brought on the record the present appellant Mt. Mahtab-un-nissa and her daughters treating them as the 'heirs of the deceased Ali Hasan.' The first application for execution which was made against these parsons was ultimately struck off. A subsequent application was put in and these persons were again treated as the heirs of Ali Hasan deceased Mt. Mahtab un-nissa put in an objection that part of the property sought to be attached belonged to her exclusively as it had been transferred to her under a registered sale deed executed on the 9th of April, 1913, by Ali Hasan in her favour for a sum of Rs. 7,000. The decree-holder by way of reply put in the plea inter alia that the marriage of Mt. Mahfcab-un-nissa with Ali Hasan was illegal inasmuch as she was a Thakur woman and the wife of a living husband, that she had been kidnapped by Ali Hasan unlawfully and without the consent of her husband and could, therefore, not have been lawfully married to the deceased. It was also pleaded that the sale deed in question was a fictitious and collusive transaction executed in order to defeat and delay the execution of the decree. Evidence was recorded on both the points in question, but the learned Subordinate Judge has unfortunately not gone into the question of the collusive and fictitious nature of the sale transaction but has disallowed the objections of the facts admitted or said to have been proved that the marriage of Mt. Mahtab-un-nisa could not have been a legal and valid one. This finding is challenged in appeal. On the question of fact there cannot; be much doubt. The evidence on both aides establishes the fact that some 20 or 25 years ago Mt. Mahtab-un niasa whilst she was a married Hindu woman and her Hindu husband was living eloped and became a Mohammedan. Within a few days of her leaving her husband's house, the went through a form of marriage with Ali Hasan and lived with him as his wife and gave birth to a number of children. The learned Subordinate Judge seems to have been of opinion that in view of the provisions contained in Act No. XXI of 1866 the first marriage of Mt. Mahtab-un-nissa could net have been dissolved without a reference to the civil Court. It is apparent however that the said Act ha3 no application whatsoever to the facts of the present case. That Act was enacted to legalise under certain circumstances the dissolution of marriages of native converts to Christianity deserted or repudiated on religious grounds by their wives or husbands.
2. Nor is it correct to any that Mt. Mahtab-un-nissa's first marriage was indissoluble. I am prepared to admit that the mere fact of her changing her religion even though bona fide did not ipso facto dissolve her previous marriage. Though she must be deemed to be governed by the Muhammadan Law after conversion, yet even under that law a convert's first marriage is not dissolved automatically. It is only where the conversion takes place in a country where the Muhammadan Law is not administered that the marriage is so dissolved on the lapse of the woman's term of probation. But when she remains in a country where the Muhammadan Law regarding questions of marriage is in force the has only the right to obtain a divorce after her husband has refused to embrace Islam. The marriage is not dissolved but a separation amounting to a legal divorce can be effected through Court. This was the view expressed by the learned Judges of the Calcutta High Court in the matter of Ram Kumari, In the matter of (1891) 18 Cal. 264. Even though that was a case arising under the Indian Penal Code the rule of law was correctly indicated, and is fully sup ported by Hedaya, Vol.1, Book II, Chapter V.
3. Assuming therefore that it was possible to get the previous marriage dissolved in a proper way, the question still remains whether that was really done in the present case.
4. The finding is that the marriage with Ali Hasan took place within a few days of her running away from her husband, that is to say before the expiry of her period of probation. The haste however would have been a mere irregularity which would be perfectly cured by long continued co-habitation and treatment as a wife. But it is also clear that the former marriage had not been dissolved by a decree of the Court. In the absence of any such authorised and legal dissolution I am bound to hold that the marriage tie had not been severed. Her going through a form of marriage a second time therefore could not make this second performance a valid marriage. No question of the doctrine of factum valet would arise in a case where a woman's husband is still alive. The second marriage is not only irregular but illegal and such an illegality cannot be cured either by acquiescence or long continued cohabitation. I cannot therefore hold that any dower debt in its strict sense was due to her from Ali Hasan.
5. But this finding does not dispose of the appeal. The sale-deed purported to have been executed in lieu of Rs. 7,000 out of which Rs. 5,000 represented part of the dower debt and the balance of Rs. 2,000 was left in the hands of the vendee in order to pay of certain mortgage and simple debts of Ali Hasan. As to the sum of Rs. 5,000 it is urged on behalf of the decree holder that it was a void and illegal consideration inasmuch as no legal marriage had taken place. It is then contended that the transfer in lieu of such an unlawful consideration is a nullity under Section 6, Sub-clause (h) of the Transfer of Property Act. I am however of opinion that it is impossible to dispose of the case on any such abstract proposition of law. It is true that every parson is presumed to know the law. On the other hand as the question of law raised was by no means a simple one there is always a possibility of the objector having been deceived and made to believe by the deceased Ali Hasan that a valid marriage was being contracted and that she was entitled to a dower debt of Rs. 5,000. If acting on the representation so made she had submitted to live with him as his wife and had borne children to him there might well have been circumstances under which Ali Hasan himself would have been estopped from challenging the validity of the marriage in question. It was held in the case of Man Kunwar v. Jasoda Kunwar (1875-78) 1 All. 478 as well as in the case of Dhiraj Kunwar v. Bikramajit Singh (1881) 3 All. 787 that past co-habitation was not such an immoral consideration as to make a promise in lieu of it altogether void. It was however pointed out by Aikman, J., in the case of Alice Marry Hill v. William Clarke (1900) 27 All. 266 that in the two cases previously mentioned the cohabitation had not been shown to have been adulterous. In the opinion of the learned Judge adultery being an offence against the criminal law in India co-habitation past or future if adulterous was not merely an immoral but an unlawful consideration. In that case however the plaintiff was trying to enforce a contract the validity of which the defendant was impugning. I would further like to point out that adultery though an offence on the part of the man is not an offence on the part of the married woman. It cannot therefore be urged that the consideration passing from her is necessarily illegal though of course it is indisputably immoral. Bigamy however is an offence committed both by the married woman and the man. Bat in the present case the question is not whether such a contract can be specifically enforced in a Court of law, but the question is whether an out-and-out transfer already effected in lieu of a consideration for immoral and even illegal cohabitation is a nullity. When the agreement is that parties are to live in adulterous co-habitation in future the contract is obviously illegal, but if in order to compensate the woman for the past illicit connection, the offending party gives her some property I would not be prepared to say that the consideration for it is illegal. The offence had already been committed. Payment of compensation for a past criminal offence cannot be deemed to be illegal, even though under certain circumstances it may be immoral. In my opinion there is a clear distinction between a mere contract to pay an allowance in future in order that an illicit connection be continued, and a transfer of property in favour of the woman for co-habitation which has already taken place. In the former case I would have no hesitation in saying that the agreement is illegal but in the latter case I would not be prepared to say that it is so.
6. Under the Muhammadan law dower may be fixed at the time of marriage or even enhanced subsequently. It can thus be a consideration not only for future co-habitation but also for the past one. In the present case Ali Hasan on a demand of the dower debt (fixed at the time of the so-called marriage or enhanced subsequently) having been made, might well have imagined that he was estopped from challenging the validity of the marriage and had no real defence to such a claim. If being estopped he attempted to satisfy that claim by transferring a part of the property I am unable to say that the consideration of the transfer was illegal even though as a matter of law it might have been void.
7. As the dacree holder is a mere attaching creditor and not in any other way a representative of Ali Hasan she may well urge that she is not bound by any personal estopped against Ali Hasan. She would then be entitled to say that the consideration of Rs. 5,000 even though not illegal was certainly void as no legal marriage had in law taken place. But if the consideration of Rs. 5,000 was merely void and not unlawful then the transfer cannot be a nullity unless the balance of Rs. 2,000 was also a void consideration. Under Section 6, Sub-clause (h) the transfer is a nullity when the transfer is for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act. If the consideration is merely void the transfer may hold good if it purports to be in lieu of this void consideration as well as some other consideration which is good. Further in the absence of any clear authority I am not prepared to hold that Section 21 of the Contract Act which prima facie applies to a mare contract and would vitiate the whole of it if any one or any part of several considerations is unlawful, would by implication apply to cases of an out-and-out transfer when that section has not bean expressly made applicable. I am therefore of opinion that the mare fact that consideration of Rs. 5,000 falls to the ground would not make the transfer void if the balance of the consideration was valid. Of course if the reduced consideration is grossly inadequate the transfer itself may be presumed to have been made with intent to defraud, defeat or delay creditors within the meaning of Section 53 of the Transfer of Property Act.
8. I therefore find it impossible to dispose of this appeal without first having the questions of fact arising in this case determined. For ought one knows there might never have been any supposed dower debt or any other outstanding debt and the transaction in question might have altogether been a fictitious one. The questions of law would then become merely academic. I accordingly send down the following issues for determination which have been left undecided:
1. Was any sum of Rs. 5,000 or less fixed as dower at the time of the second supposed marriage or bona fide enhanced subsequently?
2. Ware any debts amounting to Rs. 2,000 or less as referred to in the sale deed actually outstanding against Ali Hasun at the time of the alleged sale?
3. Was the transfer in question an honest and bona fide transfer in lieu of the supposed consideration or was it a mare fictitious transaction intended to defeat and delay the respondent-decree-holder.
9. No fresh evidence will be allowed. The Court below will submit its findings at an early date. On receipt of the findings the usual ten days will be allowed for objections.