1. This is a suit to recover maintenance against a Muhammadan husband. The claim is in respect of the period of iddat after divorce. A document of talaknamah was executed by the wife in accordance with the provisions to that effect in her kabinnamah. Both the Courts have come to a conclusion that the wife is entitled to maintenance and that the divorce which she purported to effect, was a good and valid one. On appeal, it has been contended that there is no cause of action either in fact or in law. The facts are that the wife claimed under the terms of the kabinnamah to divorce herself from the husband under the powers which had been given her in the event of his marrying a second wife, and further she alleges that she has the right to divorce herself because he has imputed unchastity to her and refused to maintain her. These are findings of fact with which we cannot interfere in second appeal. It mast be taken that such facts do exist. But it is said that in law, it was not possible for the parties to enter into the terms which they did. We are referred to the provisions of Section 26 of the Indian Contract Act, upon which it is argued that the agreement not to marry a second wife was void. As I pointed out in the course of the argument, we are not concerned, in the circumstances of the case, with the question whether or not the defendant could be restrained from marrying a second wife. The question before us is this, if he does marry a second wife, what is the effect under the terms of the kabinnamah? The effect of the second marriage is to give the wife a power to divorce her husband. That the husband can delegate to her, power to divorce on certain conditions, is not contested before us and as regards the condition against re-marriage which is assailed, we have been referred to the decisions in Badarannissa Bibi v. Mafiattala 7 B.L.R. 442 : 15 W.R. 555 which was before, and Ayatunnessa Beebee v. Karam Ali 1 Ind. Cas. 513 : 12 C.W.N. 907 : 36 C. 23 which was after, the Contract Act. An expression of opinion in Mr. Ameer Ali's work on Muhammadan Law was also referred to.
2. Under these circumstances, we are not prepared to say that the parties could not enter into the contract into which they did enter. Lastly, it is contended that the divorce was bad, because it was not communicated to the defendant by the plaintiff. In the first place, it is by no means clear that in a case of this kind where talaknamah is registered, anything more than this is necessary. The case of Sarabai v. Rabiabai 30 B. 537 : 8 Bom. L.R. 35 has been cited before us. It is not reasonable to suppose that a registered document of this kind could have been executed in a mofussil village without the defendant knowing that it had been done. But apart from this, it is sufficient to dispose of this part of the case on the ground that the question was not raised in either of the two lower Courts. Had it been raised, the question whether or not there was a sufficient communication or whether the defendant had otherwise knowledge of the divorce pronounced by his wife, could have been entered into. The point not having been raised in the lower Courts cannot, in our opinion, be urged here now.
3. The result, therefore, is that we affirm the decision of the Court below and dismiss this appeal with costs.