(1.) THIS Second Appeal involves an interesting question of law which, we are advised, is not covered by any precedent or authority. It arises out of a suit for dissolution of marriage instituted by the plaintiff -respondent.
(2.) THE plaintiff and the defendant who are Muslims by religion, were married on the 25th of Bysak, 1356 B.S., corresponding to 8 -5 -49. Before this marriage, admittedly the defendant had two other wives, this being permissible under the Muhammadan Law, It appears that these other wives were not living with the defendant. At the time of the marriage, a 'kabinnama' was executed, under the terms of which the parties agreed that in case the defendant would bring any of his formerly married wives to stay with him, without the consent of the plaintiff, the plaintiff would be at liberty to divorce the defendant after performance of the ordinary legal formalities. In Bysak, 1357 B.S., corresponding to April or May, 1950, the defendant brought one of his former wives to stay with him without the plaintiff's consent, and when the plaintiff objected to this, it was alleged she was ill -treated, assaulted and driven out of the house. Thereafter the plaintiff observed the formalities of divorce on the 23rd of Ashar 1357 B.S., which corresponds to 8 -7 -50, and then instituted the present suit.
(3.) BOTH the Courts below have concurrently found that the kabinnama was a genuine document and by virtue of it the defendant had delegated to the plaintiff the right to divorce the defendant in the circumstances mentioned therein. It was also found that the plaintiff had observed the necessary formalities leading to a divorce. The Munsiff, however, who tried the suit, held that the contract was an invalid contract and opposed to public policy. He was of opinion that the two former wives of the defendant were entitled to conjugal association with him and to have marital relations with their husband, and inasmuch as this contract purported to put an impediment in their way, it was an invalid contract under Section 23, Contract Act. He accordingly dismissed the suit. The lower Appellate Court has disagreed with this view and held that the contract was valid, there being nothing illegal or opposed to public policy in the terms thereof; and, accordingly that Court has decreed the suit.