1. This appeal is by defendants 1 and 2 and is directed against the judgment of the Subordinate Judge of Howrah by which he has decreed the plaintiff's suit for restitution of conjugal rights. Defendant 1 is the wife and defendant 2 is the father-in-law of the plaintiff. The plaintiff's case in the plaint is that he was married to defendant 1 and continued to live with defendant 1 quite happily till defendant 1 field from the house of the plaintiff on the evil advice of her father. Thereafter the wife, that is, defendant 1, instituted a case for maintenance under Section 488, Criminal P. G., against the plaintiff, but that case was dismissed. The plaintiff requested defendant 1 to come to his house on many occasions but without success. Defendant 1 contested the suit by a written Statement in which she alleged that under the terms of Kabinnama which was executed by the plaintiff before the marriage she bad validly divorced herself from her husband and as such she was no longer the wife of the plaintiff and it was further alleged that the plaintiff was guilty of cruelty towards defendant 1. The suit was dismissed by the Court of first instance upon the finding that the plaintiff used to assault his wife and was otherwise guilty of ill-treatment towards her and as such he was not entitled to a decree for restitution of conjugal rights. On appeal by the plaintiff, the decision of the learned Munsif has been reversed by the Court of appeal below upon the view that the wife has failed to prove that the plaintiff was guilty of ill treatment towards her. With regard to the Kabinnama the Court of appeal below has held that an agreement between the husband and the wife to the effect that the wife should be free to leave the husband and take up residence elsewhere in case of being unable to agree with the husband is void. Against this decision of the Court of appeal below the present appeal has been filed by defendants 1 and 2.
2. Mr. Mukherjee appearing on behalf of the appellants has contended in the first place that the proposition of law formulated by the learned Subordinate Judge as to the validity of the stipulation in the Kabinnama is wrong. It has been argued that under the Muhammadan law a husband enjoys an absolute power of divorcing his wife and he may delegate that power to his wife by a contract. In support of this proposition Mr. Mukherjee has invited our attention to Baillie's Digest on Muhammadan Law, Book III Chap. III where the following passage occurs:
'As a man may in person repudiate his wife so he may commit the power of repudiating her to herself or a third party.'
In Wilson's Anglo Muhammadan Law, Edn. VI, there is a passage in Section 66 which runs as follows:
'The husband may confer a power of repudiation on his wife or on some third party, and a divorce will take effect if, and when, the power, so conferred, is exercised.'
Similar observations are to be found in Tyabji's Muhammadan Law in Sections 128 to 134 where the learned author says that the husband may delegate his power of divorce to his wife. Upon these authorities it is quite clear that a Muhammadan husband has the right to delegate his power of divorce to his wife. The learned Subordinate Judge has relied upon Article 216, Clause (3), Mulla's Mahomedan Law for the view that a contract between a husband and wife that the wife would be free to live separately in case of disagreement with her husband is void under the Mahomedan law. A reference to the relevant article shows that the learned author did not formulate any such proposition as stated above. In the first place, Sir Dinsha Mulla in Article 216 (3) was dealing with post-nuptial agreement in the second half of Clause (3) but in the present case we are not concerned with a post-nuptial but with an antenuptial contract. Secondly, in the case of Abbas Ali v. Nazemunnessa Begum reported in 43 C. W. N. 1059, a Division Bench of this Court held that an agreement by a Mahomedan husband in a Kabinnama that he would pay separate maintenance to his wife in case of disagreement is not opposed to public policy and is enforceable under the Mahomedan law. The Kabinnama which has been marked Ex. C. in the present case contains the following provisions : [Here follow the text of the Kabinnama in Bengali language.] From the above passage it is clear that the husband was authorising the wife to live in her father's house in case of disagreement with her husband and was binding himself to pay her maintenance at the rate of Rs. 10 per mouth and was further conferring upon his wife the power to get herself divorced in case the husband failed to pay maintenance for six consecutive months. The learned Subordinate Judge takes the view that so long as cruelty and ill-treatment are not proved, the plaintiff-appellant would not be bound to maintain the wife at the place of her father and upon that view the only question to which he addressed himself was whether the plaintiff was guilty of cruelty towards his wife. We are disposed to hold that this view of the wife's right is not in conformity with the conditions in the Kabinnama because the Kabinnama expressly confers upon the wife the right to live in her father's house in case of disagreement and imposes a liability upon her husband to pay her separate maintenance so long as she lives in her father's house and we hold that this agreement is valid and binding upon the plaintiff.
3. In considering the evidence on the question as to why the wife left her husband's house, the learned Judge has come to the following findings; in the first place, he holds that the father-in-law of the plaintiff took away his daughter with or without the knowledge and consent of the plaintiff at a time when she was carrying for three or four months. In the second place, the learned Subordinate Judge has also found that defendant 1 developed a dislike for her husband and for that purpose she was not willing to live with him and she had a secret desire in her mind for a younger husband. In the third place, it has been found that it is quite likely that the wife is not so much against her husband but she is in the complete control of her father, defendant 2, and the latter is thinking of another marriage for her for his own selfish gain. From these findings it is not clear to us whether defendant 1, left her husband, as contemplated by the Kabinnama, Ex. C. on account of disagreement with her husband. The discussion of the evidence on the question of cruelty is, in our judgment, vitiated to some extent by the surmises made by the learned Subordinate Judge on the circumstantial evidence of the case, Mr. Bannerjee appearing in support of the plaintiff-respondent has cited the case of Mirjan Ali v. Mt. Maimuna Bibi, which is a decision of the Assam High Court in 53 C.W.N. 302 : (A. I. R. (36) 1949 Assam 14), where it has been held that when a Muhammadan wife seeks to exercise a delegated power of divorcing herself, she must establish clearly that the conditions entitling her to exercise the power have been fulfilled. With respect we agree with the view in the said decision but we are afraid that the appreciation of the evidence in the present case by the Court of appeal below has been vitiated by misconception of the legal rights of defendant 1 under the Kabinnama and also by the surmises made by the learned Subordinate Judge on the circumstantial evidence.
4. Mr. Mukherjee appearing in support of the appeal has also argued that the order of perpetual injunction against the father defendant 2, is not maintainable under Section 64, Specific Relief Act. The question under that section is whether there was an obligation on the part of defendant 2, in favour of the plaintiff in the circumstances of this case. The Court of appeal below will, therefore, consider the evidence on this point and come to a specific finding as to whether defendant 2, actually stood in the way of defendant 1's returning to her husband. Upon a consideration of this evidence, the Court of appeal below will come to a decision as to whether any injunction should be granted against defendant 2.
5. In this view of the matter, the appeal is allowed and the judgment and decree of the Court of appeal below are set aside and the case is remanded to that Court for a reconsideration of the evidence in the light of the observations made above.
6. There will be no order for costs in this Court. Further costs will be in the discretion of the Court of appeal below.