KULSAMBI Vs. ABDUL KADIR

JUDGEMENT

(1.) The parties to the suit are Sunni Mahammadans. The plaintiff filed the suit against her husband to recover her dower. The facts are that the parties were married in 1912 the defendant agreeing to pay as prompt dower 525 putlis. Five months after the marriage, the plaintiff gave birth to a fully developed child. Though it must be presumed that the marriage was consummated as the parties lived together for some time after the marriage, the child was begotten by an unknown father. The defendant turned the plaintiff out of his house shortly after the child was born, but it has not been proved that he divorced her. No question of limitation, therefore, arises. The dower agreed upon was prompt and could be sued for.

(2.) The plaintiff obtained a decree in the Trial Court but this decree was reversed by the learned District Judge on the ground that the marriage was invalid owing to the concealment of pregnancy, and since cohabitation during pregnancy was contrary to Mrbammadan Law the initial invalidity could not be cured by illegal cohabitation.

(3.) Now, although marriage is spoken of as a contract and no doubt in the first instance there must be an agreement between the parties to marry, the performance of the contract accompanied by the appropriate ceremony involves a change of status. The contract is merged in the new status acquired by the parties, and as long as that status continues so long do the rights and liabilities of the parties under the contract continue. There may be facts which, if proved, will bring about the cancellation of the marriage, in which case the parties will be relegated to the position they occupied before the marriage an if there had been no contract at all, or the marriage bond may be dissolved by divorce. But we have not been referred to any authority for the proposition that an agreement to pay dower can be separated after marriage from the marriage status and can be treated as voidable on the ground of fraud, while the marriage bond continues.