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Mt. Fatima Khatun Vs. Fazlal Karim Mea - Court Judgment

LegalCrystal Citation
Subject Family
CourtKolkata
Decided On
Reported inAIR1928Cal303,110Ind.Cas.52
AppellantMt. Fatima Khatun
RespondentFazlal Karim Mea
Cases ReferredBai Shirinbai v. Kharshedji
Excerpt:
- .....and that he was minor at the time. he further alleged that it had been executed under his wife's undue influence and coercion. he further denied the allegations as to ill-treatment, cruelty, misconduct and desertion. he apparently did not deny that he had violated one of the conditions, namely, that he had remarried twice. the first court found in favour of the plaintiff and granted her the declaration sought for. in appeal the learned judge set aside the decree of the first court and dismissed the plaintiff's suit. he found that the kabilnama was executed not immediately after the marriage, but about a month after the marriage. he found that at the time of the marriage the defendant was under the age of 18. he further found that the contract had been entered into as the result of.....
Judgment:

Cuming, J.

1. This appeal arises out of a suit by a Mahomedan lady for a declaration that the marriage tie between herself and her husband has been dissolved. Her case was that she was married to one Fazlul Karim Mea on the 17th August 1905, that a kabilnama was executed by the defendant in her favour in which he agreed not to remarry during the lifetime of the plaintiff and not to illtreat her. He further contracted not to cause her pain of body or mind, not to desert her, to maintain her wherever she lived of her own choice, not to misconduct himself and always to behave properly; there was a further agreement that if he violated any of these terms embodied in the kabilnama the plaintiff would have the power to divorce herself from her husband. It was the case of the plaintiff that the defendant had violated all these terms and that in the exercise of that power she divorced herself from her husband on the 10th April 1921 by uttering the word 'Talak' three times. She further executed a deed of divorce which was registered. The defendant contended that the kabilnama was not binding upon him, that it was executed after the marriage and that he was minor at the time. He further alleged that it had been executed under his wife's undue influence and coercion. He further denied the allegations as to ill-treatment, cruelty, misconduct and desertion. He apparently did not deny that he had violated one of the conditions, namely, that he had remarried twice. The first Court found in favour of the plaintiff and granted her the declaration sought for. In appeal the learned Judge set aside the decree of the first Court and dismissed the plaintiff's suit. He found that the kabilnama was executed not immediately after the marriage, but about a month after the marriage. He found that at the time of the marriage the defendant was under the age of 18. He further found that the contract had been entered into as the result of undue influence exerted by the wife's relation through the wife. He found that one of the terms of the contract had been violated, namely, the plaintiff's husband had remarried. He further held that this talak by agreement can only he entered into before the marriage. He further found that the contract itself was entered into by the defendant when he was a minor and, therefore, he could repudiate it on obtaining majority specially when the contract was vitiated by undue influence and coercion. He, therefore, allowed the appeal.

2. The plaintiff has appealed to this Court. This appeal raises a number of difficult questions of Mahomedan law and we are in the somewhat unfortunate position that the respondent in the case is not represented before the Court. The first point urged by the learned vakil for the appellant is that the learned Judge was wrong in holding that a talak by agreement must be entered into before the marriage; in support of this contention he cited the case of Sainuddin v. Latifannessa Bibi [1918] 46 Cal. 141. In that case Shamsul Huda, J., had to decide this particular point, namely as to whether a post-nuptial delegation of the power of divorce or tufweer-i-talaq, as it is called by Musalman lawyers, is not valid. The learned Judge remarks:

No authority has been cited for such a proposition. A reference to books on Mahomedan law makes it abundantly clear that such postnuptial delegation is valid.

3. This disposes of the first objection of the learned Judge. The next point that has been raised before us is whether a Mahomedan minor can enter into a contract by which he delegates the power of divorce to his wife in the event of certain circumstances happening. Admittedly the general rule is that a minor cannot contract. The learned vakil for the plaintiff-appellant relies upon Section 2 of Majority Act. Section 2 provides that:

Nothing herein contained shall affect the capacity of any person to act in the following matters, namely, marriage, dower, divorce and adoption.

4. The learned vakil for the appellant contends that the delegation of power to divorce to wife is an act in the matter of divorce and therefore, falls within Section 2, Clause 1, of the Majority Act. This view which the learned vakil would have us adopt of Section 2 of the Majority Act is supported by the decision of the Bombay High Court in the case of Bai Shirinbai v. Kharshedji [1896] 22 Bom. 430 with special reference to p. 436. There the learned Judges remark:

The Majority Act does not use the expression 'capacity to contract' but 'capacity to act' which is of much wider import.

5. The expression includes also capacity to contract. Adopting this view of the meaning of the expression 'capacity to act in the matter of divorce' we hold that a minor can delegate to his wife the power of divorce.

6. There only remains the finding of the learned Judge that the contract was vitiated by undue influence and coercion. In dealing with this point the learned Judge remarks as follows:

The contract under consideration is an ordinary contract and not one of marriage, dower or divorce. As regards the plea of undue influence and coercion, the very terms of the contract show that there must have been some-such thing there to induce defendant to bind himself hand and foot in that way. As regards the statement that it was the wife's act, the meaning must have been that it was exercised' by the wife through other persons of mature age.

7. Therefore, as far as can be seen, the learned Judge in coming to the conclusion that the defendant had established the plea of undue influence and coercion, has relied on the terms of the contract itself. Looking at the contract itself it cannot for one moment be held that the stipulation to allow the wife in certain circumstances to divorce herself from the husband would of itself show that the contract was brought about by undue influence and coercion. There was nothing whatever unreasonable in the husband to delegate to the wife the very same power to divorce in the event of certain circumstances happening. There is a further finding of the learned Judge that the undue influence was exercised not really by the wife, but by her relations. In other words the defendant has not made out the plea that the contract was brought about by the undue influence of the wife; and when we look at the age of the parties and the circumstances is which the contract was entered into this plea of undue influence and coercion is absurd.

8. The picture of a child of some 12 or 13 by undue influence and coercion inducing another child of sixteen or so to enter into a particular contract or to consent to some particular term in a contract borders on the ridiculous. It is to my mind difficult to see how such a plea, could be seriously put forward. It is more difficult to see how it could actually be accepted.

9. The result is that we set aside the decree of the lower appellate Court and restore the decree of the trial Court. The appellant is entitled to her costs both here and in the lower appellate Court.

Mukerji, J.

10. I agree.


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