Skip to content


Bachchoo Lal Vs. Mt. Bismilla and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All387
AppellantBachchoo Lal
RespondentMt. Bismilla and ors.
Excerpt:
- - 10 a month till the end of each month of the english calendar, and after having paid maintenance for four months, he would send for his wife, and in case of default of any condition, the deed would operate as a deed of talaq kamil (absolute divorce). the deed further authorized the father of the girl in case of default to marry her wherever he liked......law, a divorce may be so pronounced as to come into effect not immediately, but at some future time, contingent, on the happening of some specified future event (vide para. 144).2. baillie's digest of mahomedan law also shows:(1) repudiation may be either of the present time, or be referred to the future; and it may be with or without comparison, or description, and may be pronounced either before or after consummation (p. 212),and (2)repudiation is said to be referred to a time when its effect is postponed from the time of speaking to some future time specified, without any condition. and repudiation is said to be suspended on or attached to a condition, when it is combined with a condition and made contingent on its occurrence. in the former case repudiation takes effect.....
Judgment:

Ganga Nath, J.

1. This is an appeal by the plaintiff and arises out of a suit brought by him against the defendants for restitution of conjugal rights with defendant 1. As the defendants are absent, the case has been heard ex parte. The plaintiff's case was that Mt. Bismillah, defendant 1, was his legally married wife. The defendants contended that she had been divorced by the plaintiff. The trial Court did not go into the question of divorce and decreed the suit. On appeal the learned Subordinate Judge found that Mt. Bismillah had been divorced by the plaintiff and dismissed the suit. The only point which has been urged by the learned Counsel for the appellant and is for consideration is whether the plaintiff could divorce his wife under a contingent deed of divorce. Reliance is placed on a deed, dated 5th January 1930, executed by the plaintiff himself. This deed shows that the plaintiff had not made any provision for the maintenance of his wife till the time of the execution of the deed and it provided that the plaintiff would pay Rs. 10 at 12 a. m. on 6th January 1930, to Abdul Shakur, his father-in-law, for the maintenance of his wife and in future would pay Rs. 10 a month till the end of each month of the English Calendar, and after having paid maintenance for four months, he would send for his wife, and in case of default of any condition, the deed would operate as a deed of Talaq kamil (absolute divorce). The deed further authorized the father of the girl in case of default to marry her wherever he liked. The deed was described as a talaqnama in case of default of conditions. The plaintiff has not fulfilled the conditions laid down in the deed. Consequently there can be no doubt that the deed takes effect as a deed;of divorce in accordance with its terms. There can be no question about the validity of a contingent divorce. As laid down in the Principles of Mahomedan law by Tayabji (1913), p. 145: '

In Hanafi law, a divorce may be so pronounced as to come into effect not immediately, but at some future time, contingent, on the happening of some specified future event (vide para. 144).

2. Baillie's Digest of Mahomedan law also shows:

(1) Repudiation may be either of the present time, or be referred to the future; and it may be with or without comparison, or description, and may be pronounced either before or after consummation (p. 212),

and (2)

repudiation is said to be referred to a time when its effect is postponed from the time of speaking to some future time specified, without any condition. And repudiation is said to be suspended on or attached to a condition, when it is combined with a condition and made contingent on its occurrence. In the former case repudiation takes effect immediately on the arrival of the time to which it has been referred; in the latter it takes effect on the occurrence of the event on which it has been made to depend (p. 218).

3. The divorce was made contingent in this case on the default of the plaintiff in performance of the conditions laid down in the deed. The default has been committed and consequently the divorce comes into effect. I therefore agree with the finding of the lower appellate Court. There is no force in the appeal. It is therefore ordered that the appeal be dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //