MT MAHTAB-UN-NISSA Vs. RAFAQAT ULLAH

JUDGEMENT

(1.) This is an Execution First Appeal arising from an objection raised to the attachment of certain property. The respondent is a purchaser of a decree for dower which had been passed in favour of Saiyid-un nissa deceased against Ali Hasan her husband. Ali Hasan died during the execution proceedings and Saiyid- un-nissa brought on the record the present appellant Mt. Mahtab-un-nissa and her daughters treating them as the heirs of the deceased Ali Hasan. The first application for execution which was made against these parsons was ultimately struck off. A subsequent application was put in and these persons were again treated as the heirs of Ali Hasan deceased Mt. Mahtab un-nissa put in an objection that part of the property sought to be attached belonged to her exclusively as it had been transferred to her under a registered sale deed executed on the 9 of April, 1913, by Ali Hasan in her favour for a sum of Rs. 7,000. The decree-holder by way of reply put in the plea inter alia that the marriage of Mt. Mahfcab-un-nissa with Ali Hasan was illegal inasmuch as she was a Thakur woman and the wife of a living husband, that she had been kidnapped by Ali Hasan unlawfully and without the consent of her husband and could, therefore, not have been lawfully married to the deceased. It was also pleaded that the sale deed in question was a fictitious and collusive transaction executed in order to defeat and delay the execution of the decree. Evidence was recorded on both the points in question, but the learned Subordinate Judge has unfortunately not gone into the question of the collusive and fictitious nature of the sale transaction but has disallowed the objections of the facts admitted or said to have been proved that the marriage of Mt. Mahtab- un-nisa could not have been a legal and valid one. This finding is challenged in appeal. On the question of fact there cannot; be much doubt. The evidence on both aides establishes the fact that some 20 or 25 years ago Mt. Mahtab-un niasa whilst she was a married Hindu woman and her Hindu husband was living eloped and became a Mohammedan. Within a few days of her leaving her husband's house, the went through a form of marriage with Ali Hasan and lived with him as his wife and gave birth to a number of children. The learned Subordinate Judge seems to have been of opinion that in view of the provisions contained in Act No. XXI of 1866 the first marriage of Mt. Mahtab-un-nissa could net have been dissolved without a reference to the civil Court. It is apparent however that the said Act ha3 no application whatsoever to the facts of the present case. That Act was enacted to legalise under certain circumstances the dissolution of marriages of native converts to Christianity deserted or repudiated on religious grounds by their wives or husbands.

(2.) Nor is it correct to any that Mt. Mahtab-un-nissa's first marriage was indissoluble. I am prepared to admit that the mere fact of her changing her religion even though bona fide did not ipso facto dissolve her previous marriage. Though she must be deemed to be governed by the Muhammadan Law after conversion, yet even under that law a convert's first marriage is not dissolved automatically. It is only where the conversion takes place in a country where the Muhammadan Law is not administered that the marriage is so dissolved on the lapse of the woman's term of probation. But when she remains in a country where the Muhammadan Law regarding questions of marriage is in force the has only the right to obtain a divorce after her husband has refused to embrace Islam. The marriage is not dissolved but a separation amounting to a legal divorce can be effected through Court. This was the view expressed by the learned Judges of the Calcutta High Court in the matter of Ram Kumari, In the matter of (1891) 18 Cal. 264. Even though that was a case arising under the Indian Penal Code the rule of law was correctly indicated, and is fully sup ported by Hedaya, Vol.1, Book II, Chapter V.

(3.) Assuming therefore that it was possible to get the previous marriage dissolved in a proper way, the question still remains whether that was really done in the present case.