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Abi Dhunimsa Bibi Vs. Mahammad Fathi UddIn and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in(1918)ILR41Mad1026
AppellantAbi Dhunimsa Bibi
RespondentMahammad Fathi UddIn and anr.
Cases ReferredBai Shirinbai v. Kharshedji I.L.R.
Excerpt:
muhammadan law - dower, relinquishment of, by a muhammadan woman of the age of 15, whether valid--indian, majority act (ix of 1875), section 2--'act in the matter of dower,' meaning of--indian contract act, section 11. - - the learned district judge has written an interesting judgment in which, while accepting the conclusion of the district munsif that there was a release of the dower, he differs from the lower court on the question of fraud and finds that the release is binding upon the plaintiff. similarly a bequest of an infant is void because it is laid down that it is better for a man that he should leave his heirs rich rather than they should beg of people. he is also not liable to penalties which are in the nature of private rights like retaliation, 13. this passage has some..........hindus and of muhammadans. if this question is not complicated by the exception contained in the indian majority act to which we shall presently refer, there could be no doubt that the renunciation of the dower by plaintiff would, not bind her.8. now the question is whether section 2 of act ix of 1875 has made any difference in this respect. that section lays down that nothing in the indian majority act shall affect the capacity of any person 'to act in the matter of dower.' it was contended by mr. rajagopalachariyar for the respondent that in releasing the right to dower the plaintiff was acting in the matter of the dower. there is some justification for this contention in the language employed by the learned judges of the bombay high court in bai shirinbai v. kharshedji i.l.r. (1898).....
Judgment:

Seshagiri Ayyar, J.

1. This is a suit by a Muhammadan lady for dower. The defence is that when her husband was on his deathbed and she was only fifteen years of age, she relinquished her right to the dower. The question for consideration is whether this relinquishment debars the plaintiff from suing to recover it. The District Munsif found that the dower was released but the release was brought about by undue influence and fraud, and that consequently plaintiff was entitled to recover it. The learned District Judge has written an interesting judgment in which, while accepting the conclusion of the District Munsif that there was a release of the dower, he differs from the lower Court on the question of fraud and finds that the release is binding upon the plaintiff.

2. The question is not covered by any authority and is one of some importance. It has to be decided on first principles. Under the Muhammadan Law a dower, as pointed out by Mr. Justice Abdur Rahim at page 334, in his book on Muhammadan Jurisprudence, is:

a sum of money or other form of property to which the wife becomes entitled by marriage; it is not a consideration proceeding from the husband, for the contract of marriage, but is an obligation imposed by the Law as a mark of respect for the wife.

3. In Hamilton's Hedaya, Chapter 15, section I, the right to dower is said to have been founded upon the text:

Let him support her according to his ability.

4. It is pointed out, in this treatise:

that when a woman surrenders herself to the custody of her husband, it is incumbent upon the latter thenceforth to provide her with food, clothing and lodging, because such is the precept both in the Koran and in the traditions and also because maintenance is a recompense for the matrimonial restraint.

5. The author is apparently of opinion that the fixing of dower is a recompense for the surrender. It is stated in Muhammadan Law books that even though no dower may have been fixed on the date of the marriage, the wife is entitled to some dower from the estate of the husband. That is the nature and origin of dower or Mahar in Muhammadan Law.

6. The character of the obligation to pay the dower is as a debt. The moment that dower is settled, it passes from the domain of a moral precept into an enforceable debt. It has been held that the wife has a lien over the property of her husband in her possession for unpaid dower. It has also been held that she would rank pari pasu with other creditors in the distribution of the estate of her husband: see Meer Mehar Ally v. Mussamut Amanee (1869) 11 W.R. 212 and Syed Imdad Hossein v. Musamat Hosseinee Buksh (1869) 2 N.W.P.H.C.R. 327. Mr. Tyabji in his Principles of Muhammadan Law discusses the cases and says that the widow's claim for dower due from the estate of her deceased husband ranks equally and rateably with the claims of other creditors.

7. Having now arrived at a conclusion as regards the nature and character of dower, the next question is whether a minor can give up her rights to it. There cannot be much doubt that, where a Muhammadan female attains an age which according to Muhammadan Law is the age of majority, she can release her rights to dower. In the present case, the plaintiff was a major according to Muhammadan Law. But as regards general contractual obligations, the Indian Contract Act has superseded the laws of Hindus and of Muhammadans. If this question is not complicated by the exception contained in the Indian Majority Act to which we shall presently refer, there could be no doubt that the renunciation of the dower by plaintiff would, not bind her.

8. Now the question is whether Section 2 of Act IX of 1875 has made any difference in this respect. That section lays down that nothing in the Indian Majority Act shall affect the capacity of any person 'to act in the matter of dower.' It was contended by Mr. Rajagopalachariyar for the respondent that in releasing the right to dower the plaintiff was acting in the matter of the dower. There is some justification for this contention in the language employed by the learned Judges of the Bombay High Court in Bai Shirinbai v. Kharshedji I.L.R. (1898) Bom. 430, That was a case relating to Parsees and the question there was whether a Parsee minor suing to have a marriage declared void was acting in the matter of marriage. The learned Judges seemed inclined to hold that the plaintiff brought herself within the meaning of Section 2 of the Indian Majority Act. In our opinion, the construction placed upon the word 'act' seems far-fetched. As Mr. Venkatarama Sastriyar for the appellant contended, the word 'act' has been used as a comprehensive verb to control the steps to be taken in four specified classes of cases--marriage, dower, divorce and adoption. It is not very apt as applied to dower, although it is full of meaning as applied to the other three, classes. It must be remembered that the primary object of the Indian Majority Act was to reserve liberty to the Indian subjects of the Sovereign to exercise their rights in matters specially pertaining to religion or religious usages. No attempt was made in the Majority Act to indicate the legal consequences which might flow upon the exercise of these rights. The object was to confer a privilege and not to endanger ordinary civil rights. Civil and contractual obligations might flow upon the exercise of such rights. The ordinary law was intended to take its course in respect of these correlative rights. Therefore, in our opinion, when the legislature permitted a person to act in the matter of dower, it only intended to allow that person, who was not otherwise competent under the ordinary law, to act in that matter, to initiate to the religious act or ceremony which under the personal law of the subject he or she was capable of initiating. In our opinion the legal consequences flowing from this primary act was not intended to be controlled by Section 2 of the Indian Majority Act.

9. One other consideration to be borne in mind is this. The Indian Majority Act should not be so construed as to deprive a person of rights which he is otherwise entitled to. What was intended to be a beneficent legislation should not be construed as operating to deprive the ordinary rights of a person. Under the Muhammadan Law, as pointed out by Mr. Justice Abdur Rahim in his book at page 241,

Generally speaking, only such acts and transactions of a minor will be upheld as are of benefit to him, and whatever is injurious to his interest will be disallowed.

10. He says again at page 242,

But an infant, with or without permission of his guardian, cannot do any act which is absolutely injurious to his interests, such as divorcing his wife or making gift or waqf of his property or lending his money. Similarly a bequest of an infant is void because it is laid down that it is better for a man that he should leave his heirs rich rather than they should beg of people.

11. No doubt this prohibition against the act of an infant is removed when he or she attains majority as understood by Muhammadan lawyers. But the question still remains whether when the British Government enacted a uniform rule as to the age of majority, it was intended to deprive minors belonging to the Hindu or Muhammadan communities from enjoying the privileges of that legislation by operation of Section 3 of the Indian Majority Act. In our opinion the injunction of Muhammadan Law which prohibits injurious acts being done by a minor to his prejudice must be taken to have been preserved till the age at which he or she attains majority under the ordinary law of the land.

12. There is one other passage at page 241, in Mr. Justice Rahim's book which is rather significant. He says:

An infant even if possessed of understanding is, however, under no obligation with respect to what is regarded in law as a benevolent act, having a semblance of penalty; he is also not liable to penalties which are in the nature of private rights like retaliation,

13. This passage has some bearing upon the finding of the learned District Judge. The act of renunciation by the plaintiff is said to have occurred under the following circumstances: Her deceased husband was suffering from cholera. He was a pious man and was anxious that he should be relieved of all obligations contracted by him prior to his death as he believed that if he died an undischarged debtor he would not be able to attain salvation. It was apparently to case the mind of her husband in this behalf, that the plaintiff is said to have cried out that she released her rights of dower. That is undoubtedly a benevolent act intended to secure religious benefit to her husband. In the passage which we have cited from Mr. RAHIM'S book such a benevolent renunciation would be regarded as not binding upon a person even though he or she be of good understanding. We are not sure whether the learned author intended to lay down that where the age of majority according to the Muhammadan Law had been attained such a renunciation would still be not binding. But apart from that question, in our opinion, such a purely gratuitous act on the part of the minor should not bind her when she attains the age of majority. As we pointed out at the beginning, the moment that the marriage is contracted, the dower due to her becomes a debt and before a debt can be relinquished the person must be of age according to the law of the land. In our opinion the plaintiff was not acting in the matter of dower when she said that she gave up her rights to it. We are, therefore, of opinion that the decision of the district Judge should be reversed and that of the District Munsif restored with costs in this and the lower Appellate Court.


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