IMAM ALI PATWARI Vs. SRIMATI ARFATUNNESSA

JUDGEMENT

(1.) This appeal arises out of a suit for restitution of conjugal rights brought by the plaintiff, who is a Muhammadan, against his wife.

(2.) The defence was that at the time of the marriage it was agreed by a kabinnama that the husband would reside with the wife in her parent s house and that in case he did not act according to the agreement, she would have the power to divorce him. Now, the condition in the kabinnama that the husband should live with the wife in her father s dwelling house and if he broke this condition she would be entitled to divorce him, is void under the Muhammadan Law. It was so held by this Court in the suit brought by the respondent against the appellant for a declaration that a divorce made by her was valid, and for recovery of the dower money. [See the case of Imam Ali Patwari v. Arfatunnessa 21 Ind. Cas. 87; 18 C.W.N. 693.] It is contended that that case merely decided that the condition as to divorce is illegal; but that decision was based upon the ground that the condition that the wife shall be at liberty to live with her parents is void. We may also refer to Macnaghten s Principles and Precedents of Muhammadan Law, in which it is laid down that "according to the Muhammadan Law such an agreement is illegal and, therefore, it is not incumbent on the husband to abide by it, and he has full power to carry his wife to his own house provided he shall have paid the amount of her dower, but in the event of his not having done so, she is at liberty to object until the amount is paid." In Wilson s Digest of Anglo-Muhammadan Law, Section 56, the law is stated thus: "A condition that the wife shall, though adult, be at liberty to live in the house of her parents, is void, and the husband is entitled notwithstanding it to insist on the wife residing with him in his own house, provided he has paid the dower, or the prompt portion of it". That being the law the defendant is bound to reside with her husband.

(3.) The learned District Judge, however, has dismissed the suit on two grounds, the first being that the plaintiff has not paid the prompt dower, and secondly that the defendant cannot be compelled to live in the same house with the other co-wives.