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Tajbi, Minor by Father and Next Friend Mohamed Alli Vs. Nattar Sheriff - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1940Mad888; (1940)2MLJ345
AppellantTajbi, Minor by Father and Next Friend Mohamed Alli
RespondentNattar Sheriff
Excerpt:
- - th6 subordinate judge held that the defence was well founded and gave the appellant a decree for rs......was only entitled to half the amount as the marriage was never consummated. the district munsif gave a decree for the full amount; but this decree was set aside by the subordinate judge of ellore on appeal. th6 subordinate judge held that the defence was well founded and gave the appellant a decree for rs. 362-8-0 only. the appellant has appealed to this court.2. it is quite clear that the decision of the subordinate judge was correct. hedaya, book ii, chapter 3, page 124, expressly states that if the husband divorces his wife before consummation she receives half her specified dower. the authority of this statement cannot be questioned. in fact it is unreservedly accepted by the learned authors of text books on mahomedan law. the learned advocate for the appellant has contended that.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The appellant, who is a Sunni and therefore governed by the Hanafi law, brought this suit in the Court of the District Munsif of Ellore to recover a sum of Rs. 725 which she claimed as mahar. She was married to the respondent on the 31st March, 1930, when she was only nine years of age. On the 24th November, 1932, before the marriage had been consummated, the respondent divorced her. It is common ground that the respondent agreed at the time of the marriage to pay the appellant the sum of Rs. 725 as mahar, but it was contended in the trial Court that the appellant was only entitled to half the amount as the marriage was never consummated. The District Munsif gave a decree for the full amount; but this decree was set aside by the Subordinate Judge of Ellore on appeal. Th6 Subordinate Judge held that the defence was well founded and gave the appellant a decree for Rs. 362-8-0 only. The appellant has appealed to this Court.

2. It is quite clear that the decision of the Subordinate Judge was correct. Hedaya, Book II, Chapter 3, page 124, expressly states that if the husband divorces his wife before consummation she receives half her specified dower. The authority of this statement cannot be questioned. In fact it is unreservedly accepted by the learned authors of text books on Mahomedan law. The learned Advocate for the appellant has contended that inasmuch as the mahar in this case was prompt and not deferred, she was entitled to the full amount as soon as the marriage contract was completed irrespective of the consummation of the marriage. This statement runs contrary to direct authority, and cannot be accepted. The appeal will be dismissed with costs.


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