MANGILA BIBI Vs. NOOR HOSSAIN

JUDGEMENT

(1.) Stripped of unnecessary detail the petitioner Monjila Bibi was admittedly married with the opposite party No. 1 Noor Hossain on the 6/03/1986, according to Muslim Rights when a Kabinnama was executed. She contended that after the marriage she came to know that the said opposite party was not a medical graduate as represented before the marriage and further, she was ill-treated at her husband's place and ultimately driven away. In this situation, she dissolved the marriage by virtue of the authority delegated to her by her husband as recorded in the Kabinnama and executed a divorce deed before the Muslim Marriage Registrar and Kazi on the 27/02/1988. The divorce was communicated to the said opposite party but as he did not pay any maintenance and dower and other properties given to her at the time of marriage as noted in the Kabinnama, she made an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, before a competent Magistrate for appropriate relief.

(2.) This application was sought to be resisted on behalf of the said opposite party mainly, on the ground that the petitioner was not a divorced woman as there was never any delegation of power to give talak. He also contended that wen if, there was any such delegation of power to give talak, it could be exercised only in specified contingencies and since no such contingency had taken place, the petitioner could not lawfully repudiate herself. He also no doubt denied the allegation of false representation said to have been made by him before the marriage as well as the allegation of ill-treatment. He has also taken a plea that certain entries in the Kabinnama were made against his will and some others were written subsequently without his knowledge.

(3.) The learned Magistrate has found on evidence that the petitioner had power to dissolve the marriage but such power could be exercised by her only when any of the conditions specified in the agreement was violated by her husband. He has further, held that since there was no such violation she could not validly give a talak and accordingly the marriage was still subsisting and so the application made by her as a divorced woman could not be sustained. Another ground which weighed with the learned Magistrate in dismissing the application was that in any event it was premature because the talak, even if given, was not communicated to the said opposite party and thus he had no opportunity to make payment of dower etc., or to deliver the goods said to have been given to her at the time of marriage. The learned Magistrate has overruled the plea of the said opposite party that certain entries in the kabinnama were made against his will or without his knowledge and also disbelieved the petitioner's case regarding the alleged ill-treatment to her.