BIBI REHANA KHATUN Vs. IQTIDAR UDDIN HASAN

JUDGEMENT

(1.) This is an appeal by Bibi Rehana Khatun whose suit to recover Rupees 25,500 as prompt dower from the defendant Iqtidar Uddin Hasan has been dismissed by the Civil Judge of Budaun. The plaintiff claims Rs. 25,500 as being a half of Rs. 51,000 fixed as dower, there having been no sum specified as prompt dower. The defendant alleges that there was no valid marriage as he entered into it under undue influence and similarly under undue influence the amount of Rs. 51,000 was fixed as dower, that there was a divorce by the Eela form in September 1933 so that this claim is time-barred, that the suit is not maintainable as there was no prior demand, that in any case the amount fixed as prompt dower should not exceed one fifth of Rs. 51,000 and finally that he, is entitled to pay only by instalments in view of the provisions of the Agriculturists Relief Act. The learned Civil Judge found in favour of the defendant on all these, points and in addition he found against the plaintiff on the ground that she did not willingly enter into the marriage. It was never the case of the defendant that the plaintiff did not willingly enter into the marriage and in fact such an assertion would have been contrary to the ease that the marriage is invalid owing to undue influence. The learned Civil Judge held that the plaintiff had not proved that she willingly entered into the marriage and that she had said that it was after the marriage that she came to know that she had been married which showed that at the time of the marriage she was not willing. Actually the statement of the plaintiff was that when she was married she knew that she was married and obviously she could not know that she was married before she was actually married. As it had never been suggested that she had not willingly entered into the marriage, she did not specifically mention that the marriage had taken place with her consent. There should have been no finding by the learned Civil Judge on this point which was not a point at issue but in any case there is no evidence to support his view.

(2.) The first point that I shall consider is whether the marriage is invalid owing to undue influence having been exercised on the defendant. The defendant is the son of Khan Bahadur Fasihuddin who was a retired Collector and who died in 1938. The plaintiff is the daughter of Faizuddin, brother of Fasihuddin, so that the parties are first cousins. What the learned Civil Judge found to be undue influence amounts to no more than this that the father of the defendant might or would have ceased to give pecuniary help to the defendant had he not married the plaintiff. There was no duty on the defendant's father to continue to help the defendant who at the time was about 25 years of age and had started practising as a lawyer. It may be that the defendant's father put before the defendant an unpleasant alternative of marrying the girl and receiving financial assistance or of not marrying the girl and receiving no such assistance, but it cannot possibly be said that the placing of this alternative before the defendant amounted to undue influence. When the defendant was asked to state what was the undue influence, he said that on the part of the father of the plaintiff it amounted to a threat to break off the relationship and, on the part of the defendant's father, it was a threat of depriving the defendant of financial support and eventually inheritance. It is obvious that there was no undue influence on the defendant on the part of the plaintiff's father and that the plaintiff's father was in no position to exercise undue influence on the defendant's father who was an elder brother so that it cannot be said that any influence brought to bear upon the defendant by his father came either from the plaintiff or from the father of the plaintiff. The same undue influence is alleged as regards fixing the amount of the dower. I am bound to find, therefore, that there was no undue influence exerted. Learned Counsel for the defendant has referred to Bindu V/s. Mt. Bugli ( 09) 1909 P.R. 73 where it was held that a marriage ceremony did not bind a purdahnashin woman as the facts showed that she had not consented and had been practically only a spectator of the ceremony, but that decision cannot help one to decide the present case.

(3.) I will next consider the alleged divorce by the Eela form. The defendant's case is that on the day after the Rukhsat ceremony in the mon September, 1933 his parents pushed him into a room with his wife and that he at once took a vow in the presence of his wife that he would never have sexual intercourse with her, that immediately afterwards he came out of the room and repeated the vow in the presence of his mother and his mother's sister, that his father then came out of another room and he once more repeated that vow.