1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in an appeal from appellate decree in a suit for restitution of conjugal rights.
2. The first defendant Barn Bibi was married to one Erfan. On the 12th May 1916 Erfan executed and registered a deed of divorce in her favour. On the 20th May 1916 Erfan saw the lady, pronounced the legal formulas, made over the document to her and Went away. On the 12th August 1916 she went through a ceremony of marriage with the third defendant. On the 3rd September 1916 she went through another ceremony of marriage with the plaintiff. The plaintiff and the third defendant are, consequently, the rival claimants. The case for the plaintiff is that no valid marriage took plate between her and the third defendant on the 12th August 1916 inasmuch as the period of iddat had not expired at that time. If this view is maintained, there is no bar to the validity of the marriage between her and the plaintiff. The determination of the controversy between the parties thus depends on the solution of the question, when did the period of iddat expire? in other words, when did the period of iddat commence? on the 12th May 1916, as the third defendant urges or on the 20th May 1916, as the plaintiff contends? The Court of first instance decided against the plaintiff and dismissed the suit. The Subordinate Judge decided in favour of the plaintiff and decreed the claim. Mr. Justice Newbould has reversed this decision and restored the decree of dismissal made by the Trial Court. On the present appeal, we have been invited to decide whether the divorce became operative from the 12th May 1916 or from the 20th May 1916.
3. It is stated in the Digest of Anglo-Muhammadan Law by Sir Roland Wilson (5th Edition, 1921, Article 62) that a talak divorce may be effected by writing as well as by word of mouth (Baillie, Book III, Chapter II, Section 6, pages 232--235). Such writing must ordinarily be addressed to and reach the wife. Two exceptions are then specified. We are concerned here only with the first exception, namely, that for the purpose of estimating the duration of the iddat, a divorce by writing is considered to take effect from the date of the writing, not from the date of receipt, in default of words showing a different intention. The rule thus enunciated is supported by the judgment of Batchelor, J., in Sarabai v. Rabiabai 30 B. 537 : 8.Bom. L.R. 35, where it is stated that the authorities show that a bain talak such as this, reduced to manifest and customary writing, takes effect immediately on the mere writing : Baillie, page 233 : Muhammad Yusoof, Tagore Law Lectures, Volume III, page 95. The divorce being absolute, it is effected as soon as the words are written 'even without the wife receiving the writing.' It is to be noted that in the case mentioned, the talak was talak-i-bain or irrevocable talak, and belonged to the category of talak-ul bidaat, the only kind of talak which becomes, irrevocable immediately it is pronounced. The other two kinds of talak, namely, talak ahsan, and talak-hasan are always revocable, and the option to revoke continues, in the former case till the expiration of the period of iddat, and in the latter case till the third pronouncement.
4. The effect of a talak by writing, as stated in Sarabai v. Rabiabai 30 B. 537 : 8.Bom. L.R. 35, is accepted by Tayabji in his Treatise on Principles of Muhammadan Law, Article 145. This view is not contradictory to the decision in Furzund Hossein v. Janu Bibee 4 C. 588 : 2 Shome L.R. 117 : 2 Ind. Dec. (N.S.) 373, where the divorce was not by writing, and it was ruled that the mere pronunciation of the word talak three times by the husband without its being addressed to any person is not sufficient to constitute a valid divorce. We observe, however, that the decision in Furzund Hossein v. Janu Bibee 4 C. 588 : 2 Shome L.R. 117 : 2 Ind. Dec. (N.S.) 373 has been doubted in the cases of Ful Chand v. Nawab Ali 1 Ind. Cas.740 : 36 C.184 : 13 C.W.N. 134 : 9 C.L.J. 105 and Asha Bibi v. Kadir Ibrahim Rowther 3 Ind. Cas. 730 : 33 M. 22 : 6 M.L.T.295 : 20 M.L.J. 1, where it was ruled that according to the Hanafi Law, it is not essential that the talak or words of repudiation should be addressed directly to the wife to constitute a valid divorce, and that, consequently, the absence of the wife does not make the pronouncement of talak void and inefficacious. A similar view appears to have been adopted in Wahid Khan v Zainab Bibi 25 Ind. Cas. 387 : 36 A. 458 : 12 A.L.J. 707.
5. The position then is that the divorce in this case took effect from the date of the writing and not from the date of its receipt by the wife, unless there are words in the instrument which show a different intention. As the document has not been produced, it is impossible for us to decide finally its legal effect on the status of the parties and the matter must accordingly be reinvestigated. The respondent has further contended that she was pregnant at the time of her divorce and miscarried : if this fact be established, the period of iddat would be terminated, It has also been urged that in the case of a girl of this age, subject to menstruation, the period of iddat was not three calendar months but three courses. This also has not been considered (Hedaya, Book IV, Chapter XII, page 128). Finally, it has been argued on behalf of the respondent that, as appears from the register of talaknamas, the divorce was in khula form : if the divorce was really in that form, the fact cannot be ignored and may vitally affect the situation of the parties.
6. We hold, accordingly, that the appeal most be allowed, the decree made by Mr. Justice Newbould set aside, and the case remitted to the Court of first instance for re-trial of the question of validity of the marriage between the first and third defendants. The Court will take steps to compel the production of the talaknama and allow the parties to adduce relevant evidence regarding the divorce of the first defendant by her first husband, The costs of the two hearings in this Court and of the hearing before the Subordinate Judge will abide the result.