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

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in163Ind.Cas.228
AppellantBachchoo Lal
RespondentMusammat Bismilla and ors.
Excerpt:
muhammadan law - divorce--contingent divorce--validity of. - .....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. 141).2. baillie's digest of muhammadan 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.....
Judgment:

Ganga Nath, J.

1. This is an appeal by the plaintiff end arises out of a suit brought by him against the defendants for restitution of conjugal rights with defendant No. 1. As the defendants are absent, the case has been heard ex parte. The plaintiff's case was that Musammat Bismillah, defendant No. 1, was his legally married wife. The defendants contended that the 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 Musammat 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 January 5, 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 January 6, 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 English Calendar and after having paid maintenance for four months, he would send for his wife and increase of default of any condition, the deed would open to as a deed of Talaq kamil (absolute divorce). The deed further authorised the father of the girl in case of default to marry her wherever he 1 ked. 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 Muhammadan Law by Tavabji (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. 141).

2. Baillie's Digest of Muhammadan 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 his 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 commited 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.


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