1. This appeal arises out of a suit brought by the plaintiff for restitution of conjugal rights against his wife the defendant No. 1. The facts of the case are shortly these: The parties were married in 1308 when a kabinnamah was executed but not registered. This document was subsequently lost. A dispute then arose between the parties which was settled by the execution and registration of a second kabinnamah in 1313. Among other matters the new kabinnamah provided that the plaintiff would not take a second wife without the defendant's permission. The document concluded as follows:--'Be it noted that if I violate any of the aforesaid conditions or any portion thereof, I delegate to you my own power of giving three talaqs such as is possessed by males. Whenever you choose you may talaq or repudiate your person three times and then take another husband '
2. It is found that between 1313 and 1320 the plaintiff appellant took a second wife without obtaining the permission of the defendant. When the present suit for the restitution of conjugal rights was instituted the wife gave herself three divorces in accordance with Mahomedan Law under the authority given to her by the husband. Both the lower Courts have dismissed the plaintiff's suit and hence this appeal.
3. It has been contended before us that a post nuptial delegation of the power of divorce or tufwees-i-talaq, as it is called by Masai man lawyers, is not valid. No authority has been cited for such a proposition. A reference to books on Mahomedan Law makes it abundantly clear that such delegation is valid. In fact most of the instances of tufweez given in the books are post-nuptial and refer to authority given by a person to another who is already his wife. Reference may be made to Baillie's Digest of Mahomedan Law, p. 241. The more difficult questions, however, that have been raised before us are the following:
I. That the authority given to the wife could only be exercised immediately in the majlis in which it was given and was lost, not being so exercised.
II. That the authority should have been exercised immediately on the happening of the event upon which it was contingent.
III. That the delegation was revocable and the institution of the suit amounted to such revocation.
4. Before proceeding to a discussion of these questions it would be convenient to refer to certain well-established principles of Mahomedan Law with reference to which the law on the subject of 'delegation' has been discussed in the text books. Mahomedan lawyers make a distinction between isbatat or acts which create rights and isqatat i.e., acts which only extinguish existing rights. Mr. Justice Abdur Rahim refers to the distinction in his extremely valuable work on Mahomedan Jurisprudence at page 195. Tumleek which means making another the malik or owner of a thing and includes ordinary cases of sale, gift and similar other transactions, belongs to the former. The isqatat include release, divorce, emancipation of slaves, etc. Leaving aside exceptions to the general rule, it is a well-established rule of Mahomedan Law that in cases of tumleek, taleeq is not valid, i.e., it is not valid to make the transaction dependent on any condition or contingency.
5. All tumheks must as a rule be unconditional, they must be accepted immediately in the metjlis (sitting) itself and it is open in such cases to the mumallik (i.e., the person making another the malik of his rights) to revoke the tumleek before acceptance whereas in isqatat (i.e., acts causing extinction of rights) taleeq is valid, i.e., these may be made dependent on conditions and generally, acceptance in the majlis is not necessary, nor is the authority revocable. Mahomedan lawyers have found it difficult to apply to cases of delegation of divorce all the incidents of a tumleek. They argue that this is a special kind of tumleek for the reason that in ordinary cases of tumleek on the transference of a right, the transferor is completely deprived of his right which after the transfer, vests in the transferee, but in the case of a delegation of the authority to divorce, the husband is not deprived of his right and both the husband and the wife have in their hands the power of divorce. It is also not strictly included in the isqatat because the delegation does not by itself extinguish any rights, though the exercise of the delegated authority does. They hold that the delegation of an authority to divorce partakes only partially of the character of tumleek. It therefore admits of taleeq, that is, it may be made dependent on conditions. Accordingly they lay down special rules for cases of this class. These may be stated thus:
(1) That where the delegation is unconditional and the woman is present in the majlis, the delegated authority must be accepted and exercised then and there, or as the Mahomedan lawyers call it in the majlis as in ordinary cases of tumleek.
(2) That unlike ordinary tumleeks, acceptance in the majlis is not essential, so that if the woman is absent she may accept the delegation in the majlis in which she hears of it and must exercise the authority then and there, unless any time is fixed, or she is expressly allowed to exercise the power at any time she chooses.
(3) That there is no power of revocation in such cases.
(4) That the delegation may be contingent or be subject to conditions, and in such cases the contingency must have happened and the conditions must have been fulfilled before the delegated authority could be exercised. This is unlike tumleek in Which when coupled with any condition, either the condition becomes void or it vitiates the transaction. In cases of conditional or contingent delegation the power must be exercised as soon as the contingency has happened or if the fulfilment of the condition is not in the immediate power of the wife, when the condition is fulfilled, unless as in the case of conditional delegation, words are used to indicate that the power is to be exercised within a particular period or at any time the wife chooses.
6. The following passages translated, from text books on Mahomedan Law amply establish these propositions. The original texts are quoted in the Appendix to this judgment.
(i). 'It is stated in the Zakhira that this tumleek (i.e. delegation of the right of divorce) is different from other tumleeks inasmuch as it continues after the majlis, when the woman is absent, and is not dependent on acceptance. It is therefore clear that this kind of tumleek does not require the acceptance on which the validity of other tumleeks depend, because it is a tumleek which ends alone with the person giving it without acceptance and is not capable of being revoked:' Fathul-Qadeer, a commentary on the Hedaya by Shaikhul-Islam Ibn-i-Hamam, Vol. III, p. 411, Cal. Ed.
(ii). The woman is authorised (to exercise the power of divorce that may be delegated to her) in the majlis in which she comes to know of the delegation either by being present when the delegation is made or (if absent) when sue hears of it. But if she allows one or more days to pass, she is not entitled to exercise the authority after the majlis, except where the husband adds to the expression Divorce yourself' or similar expressions, words such as when you desire' or 'whenever you desire', in which case the exercise of the authority will not be confined to the majlis and the husband has no right to revoke the authority given: 'Durrul-Mukhtar, Book 2, p, 475, 476 (Egyptian Ed.)
(iii). The use of the words 'when' or 'whenever' embraces all times as if the man had said at any time you desire and the delegation is not confined to the majlis: Raddul-Muhtar, Vol. II, p. 487 (Egyptian Ed.).
(iv). A delegation is confined to the majlis, but where words 'when you choose' are added, the woman is authorised to divorce either in the majlis or after it.'--Bahrur Raiq, Vol. III, p. 354 Egyptian Ed. (Exactly the same language is used in Hedaya Egyptian Ed. p. 435).
(v). If a man says to his wife 'your business is in your hand when or whenever you desire' it is open to her to divorce herself at once in the majlis or outside it at any time she desires Fatawa-i-Alam-giri, Vol. I, p. 562, Cal. Ed.
(vi). A man left the business of his wife in her hand on this condition that when he beat her without fault she could divorce herself whenever she wished. Then she went out of the house without her husband's permission. The husband then beat her. Would her business be in her hand? It is said it would not be in her hand if her prompt dower has been paid, hut if it is not paid, it is open to her to go to her father's house without his permission, or to refuse her person to him for the realisation of her prompt dower. In that case her going out of the house will not be a fault (and the beating being without fault she would have the right to divorce herself)': Alamgiri, Vol. I, p. 569, Cal. Ed.
7. In this case there was a clear delegation of the right of divorce which the defendant was expressly allowed to exercise 'whenever she chose.' She has exercised that power and thus has put an end to the marital relation between her and her husband. The suit for restitution of conjugal rights cannot therefore lie, and has been rightly dismissed. The appeal fails and is dismissed with costs.
8. I agree