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Mozharul Islam Vs. Abdul Gani Ala - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1925Cal322
AppellantMozharul Islam
RespondentAbdul Gani Ala
Cases ReferredAbi Dhunimsa Bibi v. Fati Md. Udnisahib
Excerpt:
- .....has been made to the case of abi dhunimsa bibi v. fati md. udnisahib (1918) 41 mad 1026. there a minor mahomedan wife a major according to her personal law but a minor according to the indian majority act relinquished her dower on her husband's death-bed. the question was whether she had the capacity to do this and the learned judges held that relinquishment of dower is not an act in the matter of dower. this view may be correct though its correctness has been questioned by the recent learned editor of sir rowland wilson's work on anglo-mahomedan law, but it does not give us any assistance in deciding the present point. the remark in one passage of the judgment in that case gives soma indications as to what the learned judges had in mind in construing the words 'acting in the matter of.....
Judgment:

Suhrawardy, J.

1. This appeal raises a question which to my mind does not demand an elaborate, though it needs, careful consideration. The suit was brought by the father of a deceased Mahomedan wife against the husband for his share of the dower due to the deceased wife. At the time of the marriage the appellant, who had a guardian of his person and property appointed by the Court was 20 years of age and legally his age of majority under the Indian Majority Act was postponed to 21 years. The defence was that at the time of the marriage the defendant was a minor under the Indian Majority Act and, therefore, incompetent to enter into a contract for payment of the dower. Both the Courts below have overruled the plea and held that the plaintiff is entitled to a decree. The only point argued in this appeal is that despite anything in Section 2 of the Indian Majority Act, 1875 a Mahomedan husband who is a minor according to the other sections of that Act, read with Section 11 of the Majority Act, is not competent to enter into a contract of dower. The whole argument was directed to the construction of the words 'to act in the matter of dower' occurring in Section 2 of the Indian Majority Act. The learned Vakil for the appellant has been at pains to construe the words as not covering a contract for dower; but I must express my inability to follow the forced construction attempted to be put upon them. His interpretation is that while payment of cash dower by such a minor is a good and valid payment, a contract for deferred dower cannot be entered into by such a minor. It is difficult to conceive that the meaning can be this as the capacity to pay a debt of dower whether prompt or deferred pre-supposes the capacity to contract the debt. As I understand it this expression ' to act in the matter of dower ' means to act or do such acts as may relate to the dower. Section 2 of the Indian Majority Act also declares that the Act would not apply to any person acting in the matter of marriage It is indisputable that dower is a necessary concomitant in a Mahomedan marriage. Some authorities have chosen to call it 'consideration for the marriage,' while others as ' payment' in honour of the wife. But there can be no Mahomedan marriage without a dower either fixed by the parties or presumed under the law. It is not disputed that '' acting in the matter of marriage', moans entering into a contract of marriage. If a Mahomedan minor who is a major by his personal law but a minor under the Indian Majority Act enters into a marriage, as he is capable of doing, he must enter into a contract for payment of dower. Even if he does not do so, the law will presume such contract. Reference has been made to the case of Abi Dhunimsa Bibi v. Fati Md. Udnisahib (1918) 41 Mad 1026. There a minor Mahomedan wife a major according to her personal law but a minor according to the Indian Majority Act relinquished her dower on her husband's death-bed. The question was whether she had the capacity to do this and the learned Judges held that relinquishment of dower is not an act in the matter of dower. This view may be correct though its correctness has been questioned by the recent learned editor of Sir Rowland Wilson's work on Anglo-Mahomedan Law, but it does not give us any assistance in deciding the present point. The remark in one passage of the judgment in that case gives soma indications as to what the learned Judges had in mind in construing the words 'acting in the matter of dower'. The passage is as follows:

Therefore in our opinion when the Legislature permitted a person to act in the matter of that dower it only intended to let person who was not otherwise competent under the law to act in the matter to initiate to the religious act or ceremony which under the personal law of the subject, he or she was capable of initiating.

2. Though this passage is not very clear I think it means that acting in the matter of marriage and dower is doing all things necessary for a valid marriage of which dower is a part. It is a matter of common knowledge that hundreds and hundreds of Mahomedans are in this country contracting marriage who have not attained majority under the Indian Majority Act, but are competent under their personal law to do so and such persons by entering into marriage contracts take upon themselves the liability for payment of the dower. The view that has been placed before us by the appellant, if adopted, would revolutionise the Mahomedan society as it stands at present. I think that the words in Section 2 of the Indian Majority Act to act in the matter of dower mean to do all acts in relation thereto, including entering into a contract for payment of dower, which are permissible under the personal law of the party free from the restriction of age put by the Indian Majority Act. I am further of opinion that Section 11 of the Indian Contract Act does not militate against this view. Therefore I hold that there is no substance in this appeal which must be dismissed with costs.

Duval, J.

3. I agree. It appears to me that Section 2 of the Indian Majority Act has referred to those who have under their personal law attained majority but have not yet attained it under that Act the right to act as majors in matters of marriage and dower and the fixing of the amount and nature of dower is an act in the matter of dower. I agree that the appeal should be dismissed with costs.


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