1. These are two appeals from a decision of the learned District Judge of Noakhali, affirming a decree of the learned Munsif of Feni, dated the 23rd August 1923. The appeals relate to two suits in which the parties were at one time the husband and wife. It appears that the marriage between the parties took place on or about the 7th. January, 1918 at which time a Kabinnamah was executed by the husband in favour of the wife and was registered. Under the Kabinnamah the husband delegated to his wife the power to exercise the right of divorce in her own favour under certain conditions. One of those conditions was that the husband would not by his conduct give his wife or her parents or relative pain in mind. The married life of the parties was apparently of short duration; for it appears that in the month of October 1918 the wife left her husband and returned to her father's house. Therefore, the husband took action in the form of instituting criminal proceedings against the wife and her parents and other relations charging them with misappropriation of money alleging that the wife had been enticed away for immoral purposes and charging the wife herself with adultery. On the 5th June 1919, it was alleged on the part of the wife, she served a notice on her husband stating the breach of the terms of the Kabinnamah and threatening to exercise her power of divorce unless certain conditions which were set out were complied with by him within a month No steps were taken by the husband within that time with the result that on the 31st July, 1919, she actually exercised her power under the Kabinnamah and divorced herself at the same time executing a document (Talaknamah) embodying the step which she was taking. On the 28th August, 1919, the husband sued for restitution of conjugal rights. On the 28th February 1920 the wife instituted her suit for a declaration that the marriage had been dissolved by the Talaknamah.
2. These cases were tried in the Courts below and both the Courts came to the conclusion that the husband was entitled to succeed in his suit and dismissed the suit of the wife. Both the Courts also came to the conclusion that the criminal proceedings instituted by the husband, to which I have already referred, and his action in charging his wife with adultery were frivolous and vexatious accusations. The charge was not substantiated and the Courts found that this action on the part of the husband himself undoubtedly caused pain to her and her relatives in their minds; and that there had been, in consequence, a breach of the particular clause in the Kabinnamah. But the learned District Judge following the decision of the Court of first instance further came to the conclusion that the subsequent conduct of the wife in connexion with the alleged giving of notice to her husband on the 5th June 1919 operated in some manner as a waiver of the right that she had under the Kabinnamah.
3. In point of fact, both the Courts have also found that the notice set up by the wife had never been served on the husband and that the husband had no knowledge of it at all. In that state of affairs it appears to me that both the Courts below have taken an entirely wrong view of the legal position. It is quite clear that if the notice was never served upon the husband and if that was the position on which the case was to be decided, the notice must be left aside altogether. Before the notice had been given the breach of the term in the Kabinnamah had occurred. Therefore, the wife at that time had an absolute aright to exercise her powers under the Kabinnamah and to divorce herself from her husband. I fail to see how it can be said that because she purports to have given a notice which was not served which according to her case would enable her husband to return to her upon his fulfilling certain conditions, therefore, it can be said that it operated in any manner as a waiver on her side of the breach that had already occurred. At most it would be a conditional waiver, effectual only on fulfillment of the condition by the husband. That is the only point really in this appeal. It is upon that ground and upon the action of the wife in connexion with the notice that the learned Judge of the lower appellate Court has come to the conclusion that there was no valid Talak. Here again, there can be no question, in my opinion that whether the notice was served or not does not affect the question. The Talak was exercisable upon a breach of the Kabinnamah and that, as I have stated above, had already occurred, Consequently, it cannot be said that the Talak was not valid. The suggestion is put forward by the learned vakil appearing for the husband that we ought to find that this particular clause in the Kabinnamah was unreasonable. The answer to that is that although the learned District Judge touches upon the question of reasonableness and indicates that in one or two of the clauses in the Kabinnamah, his opinion is that they are 'not quite' reasonable, yet this particular clause with which we are now concerned is not one of those. Moreover, the basis of the decision of the Court below nowhere rests upon any question of reasonableness or unreasonableness of any of the clauses of the Kabinnamah.
4. In the result, the judgment of the lower Court must be set aside, the suit by the husband must be dismissed and the suit of the wife be decreed. The plaintiff is entitled to her costs. We are told that the husband had deposited the sum of Rs. 400 in the Court of first instance as prompt dower payable as a condition of his getting the order for restitution. That amount should be retained by the lower Court and costs awarded to the wife will be paid out of it and the balance, if any, will be returned to the husband.
5. I, agree. I wish to add a few words. It appears that the Talaknamah after reciting the terms of the Kabinnamah and after reciting that she (the plaintiff) had served a notice dated the 5th June, 1919 pronounced the Talak on these terms:
6. you and your family members having harassed me and having caused immense pains to me by instituting a criminal case and having put me to disgrace in various ways before the public by compelling my attendance in the criminal Courts against Shariat and the Pardah and (thus) having contravened the terms of the said Kabinnamah executed before the assembled Majlish (meeting). I hereby free myself from this date from your wifehood by pronouncing three Talaks Bain against my person oh the authority delegated to me by the said deed (Kabinnamah).
7. The Court of first instance has found upon what is called unrebutted evidence that this Talak was duly pronounced by the plaintiff. The learned District Judge finds that the ground alleged by the plaintiff for the Talak was a condition mentioned in the Kabinnamah and it further finds that the defendant by his conduct has committed a breach of this condition mentioned in the Kabinnamah. It may be pointed out that the Kabinnamah mentioned a number of grounds upon each of which the Talak might be justified and it appears to me that the main ground upon which the present Talak was pronounced was the condition which I have just read and a condition of which the learned District Judge finds that there was a clear breach. That being so, the marriage was, after the pronouncement of his Talak, dissolved. The only ground upon which the learned District Judge finds that this Talak was not valid as has been pointed out and fully discussed by my learned brother, was that there was a waiver on account of the notice which was alleged to have been served by the plaintiff, which as a matter of fact, was not received by the husband. The learned District Judge has pointed out that the Kabinnamah did not require any notice before pronouncing the Talak upon the breach of any of the conditions mentioned in the Kabinnamah. That being so, it is difficult to see how the non-service of this notice would in any way affect the rights which were created on account of the valid pronouncement of the Talak by the plaintiff. That being so, I think the marriage was validly dissolved by the Talak and the validity of that dissolution was not in any way affected by the non-service of the notice. On these grounds, I agree with the order made by my learned brother.