KADU Vs. SREEMATI KOLEMAN BIBI

JUDGEMENT

(1.) The question raised by this appeal is one of considerable importance. It appears that the appellant was the defendant in the suit brought by the plaintiff-respondent Sreemati Koleman Bibi for dissolution of her marriage with the appellant. The grounds on which the application was rested are: (1) that she had been subjected to ill-treatment and beating, and ultimately turned out of his house, that is cruelty; and (2) that after having been turned out of his house the husband failed to bring her back and to maintain her. These are substantially the two grounds on which this suit was founded. The defence was that the petition for dissolution of marriage was not maintainable according to Muhammadan Law and custom. A further defence was taken denying the allegation of cruelty. The positive case of the defendant was that his father-in-law was under undue influence of other persons with one of whom he was negotiating with his daughter's marriage and consequently the petitioner was detained by her father in his house. It was further said by way of defence that the appellant was willing to maintain his wife and keep her in his house. The learned District Judge after taking the evidence on both sides has come to the following conclusions: (1) that there has been habitual beating and cruelty as a result of which the wife was compelled to leave the house of the defendant and (2) that the defendant failed to provide her with maintenance. He has accordingly granted a decree to the plaintiff. Hence the present appeal.

(2.) In appeal it has been contended by Mr. Chakravarty that cruelty and desertion are no grounds for dissolution of marriage under the Muhammadan Law as administered in British India. It has been further contended that assuming that cruelty is a ground for dissolution, the cruelty must be a legal cruelty and not the cruelty such as has been proved in this case. It is said further that there has been no desertion as understood in the Muhammadan Law. The next ground is that the offer made by the husband not having been considered, the decree contravenes the provisions of the Muhammadan Law. Mr Chakravarti wants to raise an additional ground that the learned District Judge has no jurisdiction to entertain the petition as a Court of first instance. We do not think it right in the circumstances of this, appeal that this point should be allowed to be raised for the first lime in this appeal. It is true it is a question of law and question of jurisdiction of the District Judge which goes to the root of the matter Courts of Appeal should always be chary of entertaining points which are not sifted in the Court below. Nothing need be said further with regard to this ground. The real point which we need consider is as to whether having regard to some texts of Muhammadan Law cruelty or desertion constitutes any ground for a suit for dissolution of the marriage by the wife. It has been contended on behalf of the appellant that the grounds on which dissolution can be allowed are stated by Sir Dinshah F. Mulla in his Principles of Muhammadan Law, tenth edition at page 209. Impotence of the husband is said to be a ground which entitles a Muhammadan wife to sue for divorce. In Art. 241 the learned author says this: The wife is not entitled to claim a judicial divorce on any other ground such as conjugal infidelity on the husband's part, or inability to maintain her or cruelty.

(3.) In support of his statement of the law to the effect that inability to maintain the wife is no ground for a suit at the instance of a wife for dissolution of marriage, the learned author refers to a passage in Baillie's Digest of Muhammadan Law to which we will presently refer. That passage runs as follows: A man is not to be separated from his wife for inability to maintain her. But the Judge may direct her to raise her maintenance by borrowing on his credit. And if a Judge should decree a separation, the decree would not be valid; nor even though allowed by another Judge would it become operative, because it is not within the power of a Judge to pass such a decree, for the reason already given that inability to maintain a wife is not a sufficient reason for separating the parties.