1. This second appeal by plaintiff' against the decision of the learned District Judge, arises out of a suit for restitution of conjugal rights, which was valued at Rs. 1,000/-.
2. The decision turns upon the interpretation of the Niqahnama, Ex. D-A, which has been reproduced, in extenso, by the learned Senior Subordinate Judge, Chamba. It is common ground that Mt. Naro, respondent, has married Habib, respondent. Mt. Nara sought to justify her action on the ground that, according to the terms of the Niqahnama, her previous marriage with the plaintiff, Aziz, was automatically dissolved, when the letter contracted a second marriage. The trial Court did not accept the interpretation of the Niqahnama put upon it by Mt. Naro. It has pointed out that, according to the terms of the Niqahnama, if the plaintiff contracted a second marriage, all that Mt. Naro was entitled to, was a maintenance allowance of Rs. 10/- p. m. at her father's house. In the absence of evidence to show that the plaintiff had refused to pay the dower money, or the maintenance, as provided in the Niqahnama, the trial Court rejected the contentions put forward by the defendant and decreed the suit.
3. In appeal, the learned District Judge took a contrary view and came to the conclusion that the remarriage of the plaintiff amounted automatically to a pronouncement of 'Talak'. Consequently, he non-suited the plaintiff. Hence, this second appeal.
4. I have heard the appellant in person and learned counsel for the respondents.
5. The learned District Judge is, undoubtedly, right in saying that a condition in a Niqahnama that the husband should not marry a second wife in the presence of his first wife and further that if he does so, the first marriage would stand dissolved is not contrary to the principles of Muslim Law. In-- 'Muhammad Amin v. Aimna Bibi', AIR 1931 Lah 134 (A), the husband entered into an agreement before the marriage that he would not marry another woman in the presence of the wife and if he did so, the first marriage, would automatically be dissolved. Addison J., held that the conditions of the agreement were of reasonable nature and not opposed to the policy of the Muslim law. In a case, reported in--'Bachchoo Lal v. Bismilla', AIR 1936 All 387 (B), the husband entered into an agreement undertaking to pay Rs. 10/- a month for the maintenance of his wife and after having done so for four months, to send for his wife. In the event, of default of any condition, the deed would Operate as a deed of 'talaqamil'. It was held by Ganga Nath J., that the deed would take effect, as a deed of divorce in accordance with its terms. Therefore, as a legal proposition, it cannot be disputed that under certain circumstances the Niqahnama; Ex. D-A, could operate as a deed of divorce.
6. A careful reading of the terms of the Niqahnama, however, does not, in my opinion, support the view of the learned District Judge that the mere fact that Aziz married a second wife would automatically dissolve his previous marriage with Mt. Naro. According to the terms of the Niqahnama, which have been reproduced, in extenso, by the Senior Subordinate Judge, Aziz took upon himself the following two liabilities: (a) To pay Rs. 300/- to Mt. Naro as dower money on demand, (b) To pay her a sum of Rs. 10/- p. m. at her father's house, as maintenance, in case he ill-treated her, or failed to maintain her or married another woman. The third paragraph of this Niqahnama says that in case Aziz made a default of any of the above conditions, the deed itself would be treated as a talaqnama. I agree with the learned Senior Subordinate Judge that the document would operte as a 'talaqnama' only in case Aziz failed to pay either the dower money or the maintenance amount.
The mere fact that he married another woman would not operate automatically to dissolve his first marriage with. Mt. Naro. The Niqahnama does not say so. On the other hand, it clearly says that in that event Mt. Naro would be entitled to receive Rs. 10/- p. m. from Aziz as her maintenance and she could stay at her father's house. If the interpretation put by the learned District Judge is accepted, then it would render paragraph 2 of the Niqahnama meaningless, whereby Mt. Naro would be entitled to receive Rs. 10/-p. m. at her parents' house in case Aziz remarried. If, as was contended on behalf of Mt. Naro, a second marriage by Aziz would automatically dissolve his first marriage with Mt. Naro, where was the point in providing that Mt. Naro would be entitled to receive Rs. 10/- p. m. at her father's house.
7. The situation might have been different, if Naro's case had been that Aziz had not paid her dower money or her maintenance allowance. But this was not her case. She based her case on the fact that Aziz had contracted a second marriage. This, as I have already shown, would not automatically dissolve his first marriage with Mt. Naro. The learned Senior Subordinate Judge has pointed out that there is no evidence to show that Aziz had failed to pay Mt. Naro either her dower money or maintenance.
8. In the result, therefore, I allow the second appeal, set aside the judgment and decree of the learned District Judge of Chamba dated 16-6-1953 in Civil Appeal 46 of 1953 and restore the judgment and decree of the Senior Subordinate Judge, Chamba, dated 27-2-1953 in civil suit 81 of 1952. Having regard to the relationship of the parties, 2 leave them to bear their respective costs both here and in the Courts below.