McDonell and Field, JJ.
1. The petitioner in this case made an application under Section 536 of the Code of Criminal Procedure for the purpose of obtaining an order for maintenance of herself as the wife of Prince Mirza Kamar Kudar. It is admitted on all hands that the parties are Sheeas, and that she was a wife by the mutta form of marriage contract. She alleges that the period of the contract made between herself and the defendant was fifty years. The defendant, on the other hand, alleges that the period was one month and-a-half only.
2. The Deputy Magistrate, before whom the case came for disposal, was of opinion,--first, that inasmuch as, under the Sheea law, a mutta wife has no right to maintenance, the petitioner was not entitled to obtain an order for maintenance under the provisions of Section 536 of the Code of Criminal Procedure; and, secondly, that as the defendant had given up the remaining term of the period of the mutta marriage, the petitioner was no longer a wife within the meaning of Section 536.
3. As to the first point there is no dispute that, according to the Sheea law, a mutta wife is not entitled to maintenance. But it is contended by Mr. Amir Ali that this provision of the Sheea law cannot interfere with the statutory right to maintenance given by Section 536 of the Code of Criminal Procedure.
4. We think that this contention is correct. A right to maintenance, depending upon the personal law of the individual, is a right capable of being enforced, and properly forms the subject of a suit in a Civil Court. But we think that this right, depending upon the personal law of the individual, is altogether different from the statutory right to maintenance given by Section 536 in every case in which a person, having sufficient means, neglects' or refuses, to maintain his wife.
5. As to the second point, it is admitted by both sides that the husband can give up the remaining portion of the period for which the contract of mutta marriage is made. For the defendant it is contended, that the effect of giving up the rest of the period is to put an end to the relationship of husband and wife No authority has been shown to us in support of this contention, and as at present advised, we are unable to concur in the argument, that the giving up of the remainder of the term terminates the relationship of husband and wife. According to the Sheea law the mutta form of marriage does not admit of repudiation, and if the giving up of the remainder of the term had the effect contended for, this would practically destroy the provision of the law which forbids repudiation in this form of marriage.
6. We think, therefore, that the Deputy Magistrate was not right in dismissing the petition on either of the grounds on which he has proceeded. We must, therefore, set aside his order and remand the case in order that he may determine whether the period of the mutta contract was fifty years, as alleged by the petitioner, or one month and-a-half only, as alleged by the defendant--determine, in other words, whether the petitioner is still the wife of the defendant.
7. In the course of the argument a question was raised before us, upon which we pronounce no opinion, because it was not a point which was raised before the Deputy Magistrate. We refer to the question whether the form of divorce known as zihar may be exercised in the mutta form of marriage. Mr. Baillie says, that there is some difference of opinion on this point, but that, according to the opinion which is founded on traditional authority, it may be exercised. The defendant contended before the Deputy Magistrate that he had given up the remainder of the term, and that this had the effect of terminating the relationship of husband and wife. He made no allegation that he had exercised and had a right to exercise zihar.