1. This appeal arises out of a suit for restitution of conjugal rights brought by the plaintiff, who is a Muhammadan, against his wife.
2. The defence was that at the time of the marriage it was agreed by a kabinnama that the husband would reside with the wife in her parent's house and that in case he did not act according to the agreement, she would have the power to divorce him. Now, the condition in the kabinnama that the husband should live with the wife in her father's dwelling house and if he broke this condition she would be entitled to divorce him, is void under the Muhammadan Law. It was so held by this Court in the suit brought by the respondent against the appellant for a declaration that a divorce made by her was valid, and for recovery of the dower money. [See the case of Imam Ali Patwari v. Arfatunnessa 21 Ind. Cas. 87; 18 C.W.N. 693.] It is contended that that case merely decided that the condition as to divorce is illegal; but that decision was based upon the ground that the condition that the wife shall be at liberty to live with her parents is void. We may also refer to Macnaghten's Principles and Precedents of Muhammadan Law, in which it is laid down that 'according to the Muhammadan Law such an agreement is illegal and, therefore, it is not incumbent on the husband to abide by it, and he has full power to carry his wife to his own house provided he shall have paid the amount of her dower, but in the event of his not having done so, she is at liberty to object until the amount is paid.' In Wilson's Digest of Anglo-Muhammadan Law, Section 56, the law is stated thus: 'A condition that the wife shall, though adult, be at liberty to live in the house of her parents, is void, and the husband is entitled notwithstanding it to insist on the wife residing with him in his own house, provided he has paid the dower, or the prompt portion of it'. That being the law the defendant is bound to reside with her husband.
3. The learned District Judge, however, has dismissed the suit on two grounds, the first being that the plaintiff has not paid the prompt dower, and secondly that the defendant cannot be compelled to live in the same house with the other co-wives.
4. It is represented to us on behalf of the appellant that he has already deposited the amount of the prompt dower in the Court in which execution of the decree (obtained by the defendant) was pending; and it is also stated that he has set apart a separate hut within his compound for the residence or the defendant. Under these circumstances, we do not see any reason why the plaintiff should not be given a decree for restitution of conjugal rights.
5. It is next contended on behalf of the defendant that although according to Muhammadan Law the wife may be bound to reside in her husband's house, the Court may, on a proper case being made out, select a proper place of residence for the wife other than her husband's house. We are pressed to exercise our discretion in the matter of residence of the defendant and to direct that she be allowed to reside in her father's house and not in the house of her husband where he is living with his two other wives. It appears, however, that before the institution of this suit she had for some time lived with her husband, the plaintiff, in his house with another co-wife without any objection. The plaintiff, we are informed, is her third husband; and having regard to the fact that she did once reside with her husband in his house with another co-wife, we are unable to hold that the plaintiff's house is not a proper and fit place of residence for her.
6. The decree of the lower Appellate Court is, therefore, set aside and a decree is passed against defendant No. 1 for restitution of conjugal rights. Before, however, the plaintiff is allowed to execute the decree he must satisfy the Court of first instance that he has paid the amount of the prompt dower into Court, and that he has also set apart a suitable house for separate residence of defendant within the compound of the plaintiff's own house.
7. We order that each party must bear its own costs in all the Court.