R. Bhattacharya, J.
1. This second appeal is by the plaintiff Nur Jahan Bibi against the judgment and the decree passed by the Additional District Judge, Murshidabad in the first appeal seting aside the decision of the learned Munsif of the trial court decreeing the suit of the plaintiff.
2. Nur Jahan Bibi filed the original suit against the defendant Md. Kejem Ali for dissolution of her marriage with the latter. The allegation of the plaintiff is that she was married with Kajem Ali according to Mahommedan Law. In the year 1964, she brought a suit against the defendant for dissolution of her marriage. In that suit the defendant submitted a written statement and therein he stated that the plaintiff was of bad character, that she was enamoured of one Asgar Ali and that she committed adultery with him. During evidence also the defendant made such statement. In consequence of these statements of the defendant, she is entitled to dissolve her marriage with the defendant on the basis of 'Li'an'. It has been alleged by the plaintiff that those allegations are false and they were not retracted by the defendant. The defendant Kajem Ali filed a written statement and his defence is that whatever statements he made in the previous written statement and during evidence were true and the present suit is not maintainable. Other material allegations made by the plaintiff against the defendant have been denied. The learned Munsif decreed the suit in favour of the plaintiff on ground that as the defendant failed to prove that the plaintiff had committed adultery with Asgar Ali, the plaintiff would be entitled to the decree prayed for. The plaintiff examined herself alone on her side, but the defendant besides himself examined several other witnesses. The learned Munsif was of the view that the wife should always be presumed to be devoted to her husband and when the defendant failed to prove the allegation of adultery against her, the learned Munsif was inclined to accept the evidence of the plaintiff as true. In the appeal the learned Additional District Judge in order to appreciate the allegation of the plaintiff as to whether the statements made in the previous suit amounted to a charge of adultery, on the prayer of the respondent-plaintiff and for ends of justice, admitted in evidence without objection from the side of the appellant, the deposition of the defendant given in the previous suit. The said deposition was marked Exhibit 3. On consideration of the pleadings of the parties as well as of the evidence of the defendant in the previous suit, the learned Additional District Judge held that the statements made in the previous suit did not amount to any charge of adultery which would give right to the plaintiff to dissolve her marriage with the defendant. On this finding the appeal was allowed with the setting aside of the judgment and the decree of the trial court and the suit was dismissed. Against that decision the present appeal has been taken to this Court
3. I have heard Mr. Islam, the learned Advocate appearing on behalf of the appellant and Mr. Roy for the respondent.
3-A. The parties in the suit are governed toy the Muslim Law. The wife has come forward with the suit for dissolution of her marriage with the husband. The Dissolution of Muslim Marriages Act, 1939 was passed as it was found 'expedient to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by woman married under Muslim Law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim women on her marriage tie.' Section 2 of this Act enumerates several grounds of which one or more may be the basis on which the Court may pass a decree for dissolution of marriage in a suit brought by a Muslim woman. Ground No. (ix) says, 'On any other ground which is recognised as valid for the dissolution of marriages under Muslim Law'. Article 240 appearing in 12th Edn. of Mulla'a Mahommedan Law is quoted below:--
(1) The wife is entitled to sue for adivorce on the ground that her husbandhas falsely charged her with adultery.She must file a regular suit for dissolution of her marriage as a mere application to the Court is not the proper procedure. If the charge is proved to be false, she is entitled to a decree, tout not if it is proved to be true. No such suit will lie if the marriage was irregular. At page 596 of Amir Ali's Mahommedan Law Vol. II 4th Edn. we get:
'When a false accusation is preferred against a woman, and the husband is unable to establish the charge, the woman is entitled to claim a divorce from the Court.'
In this connection two instances were mentioned as cited by Sautayra on the subject. The first was a case of Yehia bin Mohammad where he accused his wife of misconduct. She denied the charge and required him before the Kazi to establish it by formal evidence. As the husband failed to do so, an order was passed for dissolution of the marriage. The other case mentioned is a case decided by the Court of Algiers in 1871. There the husband demanded a cancellation of contract on the ground that the wife had been guilty of immorality before her marriage. The allegation was denied by the wife and wanted a divorce on that ground of false allegation. The husband could not prove the immorality of the wife and the Kazi passed order for a divorce.
4. In Zafar Husain v. Ummat-ur-Rahaman reported in (1919) 17 All LJ 78 = (AIR 1919 All 182) decided by & Division Bench of the Allahabad High Court, it was held that a Mahomedan wife is entitled to bring a suit for divorce against her husband and obtain a decree on the ground that the latter falsely charged her with adultery. In that case the plaintiff's wife's allegation was that her husband stated before several persons that she had illicit intercourse with her brother and imputed fornication to her. Among other grounds, a plea was taken that the law of 'L'aan' had no place on Anglo Mahommedan Law and must foe considered obsolete. The ground was rejected and it was held that Kazi of the Muslim Law was replaced by the Court. Besides the judgment of Knox, J. there is a separate judgment of Banerji, J. where he referred to the decision of a Division Bench of the Calcutta High Court in the case of Jaun Beebee v. Sheikh Moonshee Beparee reported in (1865) 3 WR 93. It appears to me that Banerjee, J. had the impression that the decision was of the view that the charge of adultery of the wife made by the husband could not be the ground of divorce by the wife and in this connexion only a part of a sentence from the judgment was quoted. The quotation is 'a charge of adultery does not operate as a divorce'. Of course Banerji, J. could not accept that view. I have gone through the said Calcutta case. There the husband Beparee brought a suit for restitution of conjugal rights against his wife Jan Beebee. The husband got the decree duly affirmed by the Principal Sudder Ameen in the appeal. The wife came up before the High Court with the special appeal. The matter was heard by a Bench consisting of Shamboonath Pandit and G. Campbell, JJ. In the original suit by the plaintiff a Mahommedan against his wife of the same religion, the latter pleaded that the husband had charged her with infidelity and proved it and that it operated as a divorce. There are several other pleas taken by the wife not relevant for our purpose. Regarding the charge of infidelity, the Bench held:
'On hearing the special appeal of the wife, we think that the Courts below have rightly held that a charge of adultery does not operate as a divorce, though a false charge might be an item of ill-usage towards making up a sufficient answer. A true charge would be no step towards such an answer.'
Going through the entire judgment I do not find any decision to the effect that the false charge of adultery made by the husband against the wife would not be a ground for the wife to claim a decree for dissolution of her marriage with the offending husband. That was a case by the husband for restitution of conjugal rights against the wife and in that proceeding the defendant's claim for divorce against the wife did not arise. Moreover mere charge of adultery by the husband against the wife will not automatically terminate the relationship between the husband and the wife. For the dissoluion of marriage on that ground, the wife has to start a separate suit in Court against the husband.
5. The principles laid down in the case of Jafar Husain were accepted by the Allahabad High Court in Rahima Bibi v. Fazul appearing in (1926) 24 All LJ 881 = (AIR 1927 AH 56). My attention has not been drawn to any authority which has declared that the doctrine of 'L'aan' or 'Li'an' has become obsolete. I am, therefore, of the view, that a Mahommedan wife can bring a suit for a divorce against her husband on the ground that her husband has charged her with adultery falsely.
6. An important point has been raised before me as to whether the statement made by the husband about the adultery of his wife by way of defence in a suit brought by the wife against him could be legally availed of by the wife in a subsequent suit for dissolving her marriage with the husband. In the present case before me, the plaintiff admittedly brought a suit against the defendant-husband for dissolution of marriage on the ground that the defendant, a 'Ghar-jamai' of the plaintiff's parents, had left her after ill-treating her and making no provision for her maintenance. There were other grounds not relevant for our purpose. That suit was registered as Matrimonial Suit No. 6 of 1964. Kajim Ali appeared there and filed a written statement denying the allegations made by the plaintiff. His case was that he lived with his wife at the house of his mother-in-law. He loved his wife. The plaintiff had fallen in love with her cousin Asgar. The defendant doubted that the suit had been brought at the instigation of Asgar and other relatives. It was also stated in the written statement that recently the plaintiff was residing at the house of Asgar. During evidence in that previous suit, the defendant said during examina-tion-in-chief that at that time he was residing in his own house. As Asgar used to make frequent visits in the house of the plaintiff's mother, he fled away from that house. It was stated also that the plaintiff was given in marriage with Asgar on Baisak last meaning subsequent to the filing of the previous suit. The defendant was cross-examined and during such cross-examination from the side of the defendant, he said that the plaintiff was a bad woman and Asgar was residing in the house of the plaintiff with bad motive and that plaintiff and Asgar were in love with each other. That previous suit was dismissed by the learned Munsif and the findings were against the plaintiff. The grounds urged by the plaintiff in that suit were not accepted by the Court and the suit was dismissed.
7. According to the Mahommedan Law the wife is entitled to a divorce if the husband makes a false charge of adultery against the wife. This false charge of adultery by the husband must be a voluntary and aggressive charge. If the allegation or the charge is by way of self defence or meant to disprove or counteract some allegations of the wife in attack, it cannot be said that the allegation of the husband regarding the adultery is voluntary or actionable for getting a decree for divorce. If any wife brings a suit for dissolution of marriage on certain grounds against the husband and if the husband in his written statement makes allegation of the plaintiff's adultery with some other person by way of defence so that the plaintiff may not be believed and may not get a decree, such allegation cannot amount to a voluntary or aggressive or independent statement of adultery against the wife. The husband by way of defence is compelled to make such allegation for his own protection. Such allegation is certainly not a voluntary one which might give rise to a cause of action to the wife for dissolution of marriage. The law allows the defendant-husband to oppose the case of the plaintiff by appropriate grounds to defend himself. When the law allows the defendant to take up a relevant plea for self defence as against the plaint case, such plea cannot, in my view, be used as a weapon against him. If he is prevented from making such allegation in the written statement, it will go against the public policy and consequently proper justice and decision cannot be made in any civil action. If such allegation by the defendant made in the written statement be allowed to be used by the plaintiff-wife as a ground for a future litigation for dissolution of marriage, then certainly the privilege of law will be denied to the defendant who may be hesitant to make a relevant allegation due to the uncertainty of the decision to be made in the suit. This position for the defendant, if allowed, will mean denial of a legitimate right to the defendant. In my view if the statement regarding the adultery of the wife made by the defendant-husband is relevant in the suit and necessary to meet the attack of the wife in the suit, it cannot be called voluntary accusation of adultery against the wife and cannot be a ground for dissolution of marriage in a subsequent suit by her.
8. The other point which is relevant in the present second appeal is whether the statements made by the defendant in the previous suit would amount to accusation of adultery against thewife. The written statement of the previous suit has been marked Ext 2. The relevant portion of the written statement says that the defendant did not misbehave with the plaintiff, that the plaintiff has recently been in love with her cousin Asgar and that she is now living in his house. His deposition in the previous suit has been marked Ext. 3. In Ext. 3 the plaintiff, it appears, says that he fled away from the plaintiff's mother's house as Asgar used to make frequent visits and that the plaintiff was given in marriage (Nika) with Asgar presumably by his mother on 10th Baisak last, that is to say, after the institution of the suit. During cross-examination the defendant says that the plaintiff and Asgar are in love with each other, that plaintiff is a bad woman and that Asgar has been residing in the house of the plaintiff with bad motive. On consideration of the statements made by the defendant, it cannot be stated, in my view, that there was any clear or positive allegation of adultery as required for the purpose of L'aan. At best there was the imputation of love and attachment between the plaintiff and Asgar and their ill motive. No accusation of plaintiff's adultery is there. The defendant never stated that the plaintiff and Asgar were living in the same room or sharing the same bed. I find that the learned Additional District Judge on consideration of the materials before him could not find any allegation of adultery made by the defendant and he was of the view that the defendant could resist the suit by the plea of justification. I find no reason to interfere with the decision of the learned Additional District Judge in the first appeal below. It appears that the learned Munsiff of the trial court did not consider the pleadings of the previous suit and also the evidence adduced before him. His decisions are not based upon evidence but mostly upon surmises. The evidence on record clearly proves that the defendant's allegations were acceptable and proved regarding the intimacy of the plaintiff with Asgar. There can be no doubt that the defendant's allegations were all bona fide. The first appellate court was justified in setting aside the judgment and the decree of the trial court. I find no reason to interfere with the decision of the first appellate court below.
9. In the result, the appeal fails and the same is hereby dismissed with costs.