HUSAINKHAN SARDARKHAN Vs. GULABKHATUM

JUDGEMENT

(1.) Two points of law have been argued in this second appeal. First, it is contended that the District Judge is wrong in holding the whole amount of the dower to be-prompt and the decision of this Court in Fatma v. Sadruddtn (1865) 2 B.H.C. 291 is relied upon by the appellant s pleader in support of the contention. There it was held that, where no specific amount of dower had been declared eligible, and there was no evidence of what was customary, it was not an error in law for the Court of facts to hold one-third only of the whole amount to be exigible during the life of the husband, the remaining two-thirds being payable on his death. The decision in question lays down no inelastic principle of law, but merely points out what, in the circumstances of the case, was an equitable rule to follow. The learned Judge is, therefore, right in holding upon the facts of the present case that the whole is exigible.

(2.) Next, it is urged that in the case of prompt dower, the right of the wife is dependant upon, and does not arise until after, consummation of the marriage. According to Mahomedan law, marriage is a civil contract and dower is a necessary result of it, being a part of the consideration for her agreement to become her husband s wife by consummating the marriage : Mastan Sahib v. Assan Bibi Ammal (1899) I.L.R. 23 Mad. 371. Consummation is not a consideration for the marriage contract but is performance of the contract. Prompt dower (Muajjal, as it is called) is payable immediately on the marriage taking place, and it must be paid on demand. If it were payable on consummation, the authorities on Mahomedan Law would have said so, instead of using the word "demand." And this is in accordance with , where it is said :-"the Mahomedan matrimonial contract involves separate and independent contracts by the husband and wife. The wife is by contract bound to submit herself to her husband and he is bound to pay the prompt or other dower according to the contract, or if no sum agreed on, according to the provision of the law. Each has a separate remedy against the other for non-performance of the contract." In Rannee Khejurunnisa v. Rayeesunnissa (1869) 13 W.R., 371 it was held that under Mahomedan Law, it is only by payment of the prompt dower that the husband is entitled to consummate the marriage or enforce his conjugal rights and that "unless delay is stipulated for and agreed to, it should be paid at the time of the marriage." It follows that the right to restitution, so far from being a condition precedent to the payment of prompt dower, arises only after the dower has been paid.

(3.) The decree must, therefore, be confirmed with costs.