MAFIZUDDIN MANDAL Vs. RAHIMABIBI

JUDGEMENT

(1.) In this case the petitioner has moved against a declaration made by the District Judge of Rangpur that the opposite party Rahima Bibi had repudiated her marriage with him on attaining puberty on the grounds: (1) That the learned District Judge had no jurisdiction to make such a declaration inasmuch as the option of puberty is a civil right for which a suit should have been, brought in a proper Court against the decision of which first and second appeals would lie. (2) From the statements of the opposite party herself and her witnesses the learned Judge ought to have concluded that there had been no-repudiation of the marriage of Rahima with the petitioner according to the-provisions of Mahomedan law.

(2.) As regards the second point the Judge has come to a finding on the evidence that the marriage which was contracted by the girl's paternal uncle was in fact repudiated by her on her attaining puberty. This is a finding with which one cannot interfere in revision Under Section 115, Civil P.C, or Section 107, Government of India Act. As to the first point admittedly the opposite party had the option of puberty and under the Mahomedan law no decree was required to confirm it, but in order to impress on the act a judicial imprimatur an order of the Judge is necessary: vide Amir Ali's Mahomedan Law, Vol. 2, p. 375. Under the Mahomedan regime the Judge was the "kazi" and the question is whether under the British Administration the District Judge has the jurisdiction of the "kazi" in this matter. It appears that shortly after Warren Hastings became Governor of Bengal the East India Company established civil Courts which took over the powers and duties of the Mahomedan Courts and administered Mahomedan law: vide Cowan's Tagore Law lectures on Mahomedan Law, and Under Section 4, Civil P.C, the civil Courts retain this jurisdiction in the absence of any specific provision to the contrary. Under Mahomedan law to make the repudiation of marriage by a girl on reaching puberty effective she must make a declaration before the "kazi" or Judge and get his order thereon.

(3.) If the husband denies that there was any repudiation the onus was on her to establish it by evidence. The place of the application to the kazi cannot be taken by a suit Under Section 42, Specific Relief Act, for a declaration that the marriage has been repudiated, for such a declaration is at the discretion of the Judge, whereas under the Mahomedan law the girl had an absolute right to repudiate the marriage on attaining puberty. But it is objected that even if the civil Court has taken over the powers of the kazi those powers should have been exercised by a Subordinate Court and not by the District Judge. There is however authority for the view that the District Judge is the proper person to perform the functions of the kazi, vide the case of Shama Char an Roy V/s. Abdul Kabeer (1899) 3 CWN 158, where it is laid down that the civil Court of superior jurisdiction in the district is vested, generally speaking, with the powers exercised by the kazi under the Mahomedan regime.