MAHOMEDALI MAHOMED EBRAHIM QUERASHI Vs. HAZRABAI

JUDGEMENT

(1.) This is an appeal against a decree for dissolution of marriage passed by the learned City Civil Court Judge in a suit filed by the wife against her husband and the ground on which the dissolution has been decreed is that the husband made a false and frivolous allegation of adultery against the plaintiff.

(2.) The ground on which the appeal is preferred is that the husband before the end of the trial retracted the charge made against his wife and-admitted that it was a false charge and Mr. Jethmalani says that the effect of that retraction under the Mahomedan law is to disentitle the wife to a decree for dissolution. . The attitude of the husband can only be characterised as disgraceful. He treated his wife with cruelty. She left him as far back as 1947. She applied to the Presidency Magistrate for maintenance under Section 488, Criminal P. C. The Magistrate made an order of maintenance awarding her Rs. 15 per month arid we are told by Mr. Taraporewala, her counsel, that the husband has not paid the amount of maintenance. She then filed a suit for Mehr and a decree has been passed against him in the Small Causes Court. That decree has also not been satisfied. It was after this order for maintenance was made that the husband filed an application before the Magistrate and charged the wife with adultery and wanted the order of maintenance to be vacated. Now, the suit was filed by the wife on various grounds. She alleged that her husband' had subjected her to unnatural sexual intercourse, ill-treated her and also charged her with adultery. The suit was filed on 14-7-1952, and this accusation of adultery was made by the husband in his application to the Magistrate on 12-2-1952. On 8-8-1952, the plaintiff applied for an amendment of the plaint and by this amendment she took this further ground for dissolution of marriage that her husband had falsely accused her of adultery. The husband filed a supplementary written statement to the amendment of the plaint which was allowed by the learned Judge, and by this written statement he admitted that the charge made by him was baseless and he withdrew the charge. The question that arises for our determination is what is the effect of this retraction on the part of the husband. The learned Judge took the view that in view of the decision of this Court in -' Ahmed Suleman v. Bai Fatma', AIR 1931 Bom 76 (A) the-right accruing to the husband on a retraction was a pure rule of procedure which no longer governed the civil Courts in India. Turning to this decision, we must point out, with respect to the learned Judge, that that is not really the effort of that decision. All that Mr. Justice Madgavkar points out in his judgment at p. 76 is that there is no longer an obligation on an Indian Court to give an opportunity to the husband to retract a charge made against his wife of adultery. But we are not dealing here with a case where no opportunity was given to the husband. We are dealing with a case where there is a specific retraction by the husband, and Mulla's Mahomedaan Law, 13th Edn., sums up the law in the following tenns (p. 280) :

(3.) Order accordingly.