D.N. Mitter, J.
1. The question raised by this appeal is one of considerable importance. It appears that the appellant was the defendant in the suit brought by the plaintiff-respondent Sreemati Koleman Bibi for dissolution of her marriage with the appellant. The grounds on which the application was rested are: (1) that she had been subjected to ill-treatment and beating, and ultimately turned out of his house, that is cruelty; and (2) that after having been turned out of his house the husband failed to bring her back and to maintain her. These are substantially the two grounds on which this suit was founded. The defence was that the petition for dissolution of marriage was not maintainable according to Muhammadan Law and custom. A further defence was taken denying the allegation of cruelty. The positive case of the defendant was that his father-in-law was under undue influence of other persons with one of whom he was negotiating with his daughter's marriage and consequently the petitioner was detained by her father in his house. It was further said by way of defence that the appellant was willing to maintain his wife and keep her in his house. The learned District Judge after taking the evidence on both sides has come to the following conclusions: (1) that there has been habitual beating and cruelty as a result of which the wife was compelled to leave the house of the defendant and (2) that the defendant failed to provide her with maintenance. He has accordingly granted a decree to the plaintiff. Hence the present appeal.
2. In appeal it has been contended by Mr. Chakravarty that cruelty and desertion are no grounds for dissolution of marriage under the Muhammadan Law as administered in British India. It has been further contended that assuming that cruelty is a ground for dissolution, the cruelty must be a legal cruelty and not the cruelty such as has been proved in this case. It is said further that there has been no desertion as understood in the Muhammadan Law. The next ground is that the offer made by the husband not having been considered, the decree contravenes the provisions of the Muhammadan Law. Mr Chakravarti wants to raise an additional ground that the learned District Judge has no jurisdiction to entertain the petition as a Court of first instance. We do not think it right in the circumstances of this, appeal that this point should be allowed to be raised for the first lime in this appeal. It is true it is a question of law and question of jurisdiction of the District Judge which goes to the root of the matter Courts of Appeal should always be chary of entertaining points which are not sifted in the Court below. Nothing need be said further with regard to this ground. The real point which we need consider is as to whether having regard to some texts of Muhammadan Law cruelty or desertion constitutes any ground for a suit for dissolution of the marriage by the wife. It has been contended on behalf of the appellant that the grounds on which dissolution can be allowed are stated by Sir Dinshah F. Mulla in his Principles of Muhammadan Law, tenth edition at page 209. Impotence of the husband is said to be a ground which entitles a Muhammadan wife to sue for divorce. In Article 241 the learned author says this:
The wife is not entitled to claim a judicial divorce on any other ground such as conjugal infidelity on the husband's part, or inability to maintain her or cruelty.
3. In support of his statement of the law to the effect that inability to maintain the wife is no ground for a suit at the instance of a wife for dissolution of marriage, the learned author refers to a passage in Baillie's Digest of Muhammadan Law to which we will presently refer. That passage runs as follows:
A man is not to be separated from his wife for inability to maintain her. But the Judge may direct her to raise her maintenance by borrowing on his credit. And if a Judge should decree a separation, the decree would not be valid; nor even though allowed by another Judge would it become operative, because it is not within the power of a Judge to pass such a decree, for the reason already given that inability to maintain a wife is not a sufficient reason for separating the parties.
4. According to the finding of the learned Judge in this case, however, there is something more than mere inability to maintain. The learned Judge has found, to quote his own words.
that the defendant habitually ill-treated the plaintiff and subjected her to considerable physical cruelty; that ultimately, over four years ago, he turned her out of her house after a severe beating (though she was at the time with child) and that after that he never sought to bring her to his house or to arrange for her maintenance.
5. On this finding in our view the case of desertion has been made out. That being so, there being cruelty as deposed to by the plaintiffs' witness which deposition we have no reason to disbelieve, in addition to desertion we think according to the view taken by the modern Muhammadan jurists the plaintiff has a right to maintain the suit. In Mr. Syed Ameer Ali's Muhammadan Law Vol 2 at page 520 the learned author gives the reasons for which a wife is entitled to a divorce. He says this:
A wife is entitled to a divorce for the following among other reasons and his reason No. 10 is: 'When he (husband) treats her (wife) habitually in a cruel manner. 'His reason No. 11 is: 'When he (husband) is in the habit of beating her (wife) or threatening her (wife) with bodily injuries.
'According to the Hanafis,'
says the learned author,
'mere inability to provide maintenance is not a sufficient ground, for asking for a divorce. When the husband is possessed of means and is able to provide for the support of both himself and his wife, and wilfully refuses to do so and neglects her, then only can she apply for a divorce. The Kazi or Judge has the power of granting a divorce when the refusal or neglect is wilful and unjustifiable.
6. We think, having regard to this statement of law in Mr. Syed Ameer Ali's book, that the suit of the plaintiff can be sustained. Having found cruelty and wilful neglect to maintain the wife, it was open to the District Judge to entertain the suit. This view is also supported by a passage which has been quoted by Mr. Wilson in his well-known treatise on Anglo-Muhammadan Law. The passage is taken from Baillie's Digest of Muhammadan Law. At page 301 the learned author says thus:
When married parties disagree and are apprehensive that they cannot observe the bounds prescribed by Almighty God (or, in other words, perform the duties incumbent on them by the marriage relation) there is no objection to the woman's ransoming herself from the husband with property in consideration of which he is to give tier a khoota, and when they have done one, irrevocable repudiation takes place, and she is liable for the property. When the aversion is on, the part of the husband, it is not lawful for him to take anything from her in exchange for the khoota
7. With reference to this passage Mr. Wilson in his Anglo-Muhammadan Law, sixth edition, at page 154 says this:
As to judicial divorce for the husband's cruelty,, or adultery, the Hedaya and Fotawa Alamgiri are silent, unless indeed, we are to understand in a compulsory sense an isolated expression in an extract from the latter work which is thus rendered by Baillie, p, 301.
8. Then he quotes the passage at which we have quoted already. After citing this passage the learned author observes this:
If this means that the kazi must, or may, on the wife's demand, compel the husband to give her a khuta, we must further suppose (1) that he can pass such a decree on mere proof of incurable disagreement or incompatibility, irrespective of actual cruelty or other breach of conjugal duty; and (2) that he can fix at his discretion the price at which the woman is to purchase her freedom. These propositions, if accepted, would, to a certain degree, assimilate the woman's position as regards divorce to that of the many but the point has never come up for judicial decision in that form.
9. The learned author then refers to a Burma case namely the case of Khalilal Rahaman v. Mariam Bibi 59 Ind. Cas. 804, and says that the grounds for a judicial divorce are stated there in wide terms, including habitual cruelty, and perhaps even desertion and neglect. Having regard to the view taken by the modern Muhammadan jurists including Mr. Syed Ameer Ali and the view taken in Baillie's Digest of Muhammadan Law at page 304 we think it right to hold that a suit can be maintained at the instance of a Muhammadan wife if cruelty is accompanied with desertion of wife as in the present case. We think, therefere, that appeal must be dismissed.
10. No order is made as to costs.
11. The findings of facts have also been challenged by Mr. Chakrabarty but having regard to the remarks made by the learned District Judge that he has seen the witnesses and that by observing their demeanour he has come to the conclusion that the defendant's witnesses are all unreliable, we think that we should not interfere with his finding on an issue on such a simple question of fact as arises in the present case, as to whether desertion and cruelly has been established on the part of the husband.
12. I agree.