FAQIR MOHAMMAD Vs. AMINA

JUDGEMENT

(1.) THIS is a revision against an order of the Civil Judge rejecting an appeal against an order of the Munsif dismissing the objections against the award taken by the petitioner.

(2.) IT is necessary to set out the facts in order to appreciate the contentions raised. The respondent wife had filed a suit for dissolution of marriage under the Dissolution of Muslim Marriages Act VIII of 1939 on the ground of cruelty of the husband petitioner and his failure to maintain her. Mr. Kidwai an advocate was appointed Commissioner to examine the respondent wife. The date fixed for this purpose was the 13th of December, 1957 but on that day the parties and their counsel made an application addressed to the court wherein it was stated that the parties had agreed to refer the matter of divorce to the arbitration of Haji Mohd. Ismail. Hakim Murtaza Hussain and Himayat Ullah Kidwai, an advocate of Faizabad. IT was categorically stated that the arbitrators were at liberty to take evidence or to decide the case in any manner they deemed fit or as it pleased them or by making private or secret enquiries. IT was further provided that the arbitrators could decide the matter in any manner they liked and the parties to the application will have no objection and such award will be binding on them in every way and the parties will not have any right to raise any objection thereto. The above is a free rendering of the aforesaid application which is in Urdu. This application was signed by the parties and their respective counsel and handed over to the commissioner appointed by the court, the said Himayat Ullah Kidwai for presentation to the court. This was presented on the 20th of December, 1957 which was the date fixed in the case and the court ordered as follows.: "Let the arbitrators named in the application decide the suit and submit their award by the 20th of January, 1958."

(3.) OBJECTIONS to the award were filed alleging misconduct and some technical objections were also taken that the proceedings could not have been referred to the arbitrators as the Arbitration Act had no application and further that the application for arbitration had not been presented to the court by the parties but it was through the commissioner who had been appointed by the court. These objections were rejected by the learned Munsif who held that a suit for dissolution of marriage could be referred to arbitration. It was also held that the application need not be presented directly to the court and it could be filed before the Commissioner who in his turn could have forwarded it to the court.