QASIM HUSAIN REG Vs. BIBI KANIZ SAKINA

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for recovery of half the dower debt on the ground that the defendant has divorced the plaintiff and that there had been no consummation of marriage. The plaintiff's case was that the defendant without the knowledge or consent of the plaintiff and without any relinquishment of the dower debt pronounced divorce which put an end to the first marriage. The claim was resisted by the defendant on the ground that at the time of the marriage, fraud and misrepresentation were practised by the plaintiff's guardian viz., her father, and the marriage was voidable and therefore no claim for dower could he maintained. It was further pleader that owing to the fact that the plaintiff's maternal aunt was a woman of low caste, the defendant wanted to repudiate the marriage and then it was agreed that there could be a khula in consideration for the relinquishment of the dower and that the khula was ultimately gone through by the plaintiff through the medium of her father in the presence of maulvies.

(2.) Both parties produced oral evidence. On behalf of the plaintiff she herself her father and other witnesses were produced who denied that there had been any relinquishment of the dower either by her or by her father and asserted that it was a simple casa of divorce. They also tried to make out that there had been no disagreement on the ground of a subsequent discovery of the low parentage of the plaintiff. On the other hand, the defendant went into the witness-box and told a story that when he discovered the fraud and misrepresentation, he insisted on a separation and that it was agreed between the parties that a khula should be obtained; that he actually went to the home of the plaintiff and at first the plaintiff relinquished her dower in order to obtain the khula that then the plaintiff's father and the defendant along with witnesses went to maulvies and in their presence the father stated that she had relinquished her dower and that he as guardian also relinquished the dower and it was in consideration of such relinquishment that khula was obtained and Talaq was pronounced by the defendant.

(3.) The learned District Judge has come to the conclusion that the defendant's part of the story is correct and it appears that it was some time afterwards when the defendant discovered that the plaintiff's grin 1-mother on her mother's side was a sweeper woman, he no longer desired to have anything to do with his wife : that the parties had never lived together and ultimately Quasim Husain and the plaintiff's father came to an arrangement. The leaned Judge has mentioned that they went to a maulvi in whose presence the divorce was pronounced in the khula form together with the Talaq form, and that it was agreed that the woman would give up her dower. To this extent the plaintiff's case that there has bean no relinquishment of the dower was found to be untrue. The learned Judge has further found that she had attained the age of puberty being about 16 or 17 years of age at the time, but that she had not attained the age of 18 years so as to be a major under the Majority Act. His conclusion is that the Majority Act applied to her and that she was not competent to relinquish her dower and it was open to her to go back upon such relinquishment and reclaim the dower. He has however considered that it was never the case of either party that the marriage was still existing. Such a case was undoubtedly set up in the written statement, but does not appear to have been pressed before the learned Judge.