DAVID SASSOON EZEKIEL Vs. NAJIA NOORI REUBEN

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Wadia, dated September 25, 1930, by which the learned Judge has declared that the betrothal between the plaintiff and the defendant entered into with the minor plaintiff on behalf of the defendant at Basra on July 5, 1929, is null and void and is not binding on the plaintiff. He has further declared that the plaintiff is separated from the defendant and then he has ordered that the defendant do execute a formal bill of divorcement in favour of the plaintiff according to the requirements of the Jewish law within one week from the date of the order by taking such necessary steps and doing all such acts and things as may be necessary according to the directions of the Jewish Conciliation Committee, and has further ordered that the defendant do pay to the plaintiff the costs of the suit.

(2.) The first point taken by Mr. Mathalone, on behalf of the respondent, is that inasmuch as the defendant has not executed the bill of divorcement within the time required by the order he is in contempt and is not entitled to present this appeal. No doubt the general rule is that a party in contempt is not entitled to be heard, but that rule has never been applied to a case in which the order, for the breach of which contempt is alleged, is challenged on the ground of want of jurisdiction; and the grounds of appeal in this case do assert that the learned Judge had no jurisdiction to order the defendant to execute a formal bill of divorcement. It would certainly be a strange thing if a party directed to do an act by an order beyond the competence of the Court to pass, and therefore in law no order, were compelled to do the act before he could challenge the order. I think, therefore, the preliminary objection fails and this appeal should be heard.

(3.) The memorandum of appeal and a further memorandum containing additional grounds of appeal which were lodged by the appellant challenged the whole of the findings of fact and the conclusions of law arrived at by the learned Judge, but on the hearing of the appeal the learned Advocate General on behalf of the appellant has accepted the judgment except in so far as it directs the defendant to execute a formal bilk of divorcement. It is not necessary, therefore, for this Court to consider all the interesting questions which are covered by the judgment, For the purposes of our decision the facts can be set out very shortly. In May 1929, the defendant, who is a resident of Bombay and a member of the Jewish community, sent his mother and sister to Basra with a view to finding him a wife also of the Jewish community. After certain negotiations the mother and sister selected the plaintiff as a suitable wife, and on July 5, 1929, the ceremony of betrothal known as the "Kaseph Kiddushim" was gone through in Basra, the defendant acting by means of a proxy. According to the evidence, under the Jewish law a Jewish marriage consists of two parts, viz., the betrothal ceremony known as the "Kaseph Kiddushim" and a further ceremony known as "Chuppa", that is, a ceremony of nuptials. After the betrothal ceremony had been gone through the parties returned to Bombay, and on their arrival there on July 20, 1929, the plaintiff declined to marry the defendant as she did not approve of him. On June 24, 1930, this suit was filed, and it was heard on September 15.