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Hamidoolla Vs. Faizunnissa - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal327
AppellantHamidoolla
RespondentFaizunnissa
Excerpt:
mahomedan law - divorce by wife. - .....which was entered into between herself and her husband before marriage, she received the power to divorce her husband under certain contingencies, and that, on their occurrence, she has exercised that power, and duly divorced him under the mahomedan law.2. in second appeal it has been argued by munshi serajul islam, who appears for the husband, the plaintiff, that the delegation of such power by the husband to the wife is contrary to mahomedan law. we are unable to find any authority for this contention. the mahomedan law on the subject which has been laid before us provides for the delegation of the power of divorce by the husband to the wife on certain occasions by word of mouth, but it in no way, so far as it has been laid before us, limits the exercise of that power to.....
Judgment:

Prinsep, J.

1. The plaintiff in this case sues for restitution of conjugal rights. The defendant, his wife, pleads that, under the conditions of the kabinnama, which was entered into between herself and her husband before marriage, she received the power to divorce her husband under certain contingencies, and that, on their occurrence, she has exercised that power, and duly divorced him under the Mahomedan law.

2. In second appeal it has been argued by Munshi Serajul Islam, who appears for the husband, the plaintiff, that the delegation of such power by the husband to the wife is contrary to Mahomedan law. We are unable to find any authority for this contention. The Mahomedan law on the subject which has been laid before us provides for the delegation of the power of divorce by the husband to the wife on certain occasions by word of mouth, but it in no way, so far as it has been laid before us, limits the exercise of that power to those occasions. It would seem rather that, by providing how the wife should act, it recognizes her power to divorce her husband, if he should give her the power to do so. All the occasions specially provided for are what I may term casual. We are aware of no reason why an. agreement entered into before marriage between parties able to contract under which the wife consented to marry on condition that, under certain specified contingencies, all of a reasonable nature, her future husband should permit her to divorce herself under the form prescribed by Mahomedan law, should not be carried out. We may observe, too, that the conditions under which it is stipulated that this power should be exercised by the wife are certainly not opposed to the Mahomedan law on the subject.

3. We, therefore, dismiss this appeal with costs.


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