BAI JINA Vs. JINA KALIA KHARWA

JUDGEMENT

(1.) It is common ground between the parties to these two second appeals, preferred against the decree of the District Court, at Broach, that they belong to the Kharwa community of Mahomedans, which has formed itself into a caste. The respondent, who is the husband of the first appellant, sued her in the Court of the Second Class Subordinate Judge at Broach, for restitution of conjual rights. The appellant resisted the claim upon the ground that the respondent had been excommunicated by the community to which they belonged and that until he should get himself re-admitted into it, she should not be compelled by the Court to go and live with him as his wife. The Subordinate Judge, having found the excommunica tion proved, allowed the appellant's defence and passed a conditional decree in favour of the respondent in these terms :-The appellant "do return" to the respondent "and live with him as his wife" but "that as a condition precedent to the execution of the decree" the respondent "do pay as deposit Rs. 251" to the second appellant (father of the first appellant) to enable the said second appellant "to pay over the fine imposed by the caste of the parties." From that decree the respondent having appealed, the District Court at Broach has varied it by striking out the portion as to the condition precedent.

(2.) The ground upon which the learned Judge of the District Court has proceeded is shortly this. He finds that the respondent has been excommunicated by the Kharwacom-munity to which the parties belong but he holds that the fact of such excommunication ought to have no bearing on the merits of the respondent's claim for restitution of conjugal rights because such claims must be determined solely with reference to the principles of the Mahomedan law; and that law does not regard excommunication from a caste as a recognised cause" entitling a Mahomedan wife to refuse conjugal rights to her husband, so long as such excommunication has not deprived him of "his position as a Mahomedan." The learned Judge has found upon the evidence that the respondent still retains his Position "as a Mahomedan," notwithstanding the sentence of excommunication passed upon him by his community. In the words of the judgment now under appeal, "the only result is that he is debarred from social intercourse with the other members of the community. He still attends the mosque and when he dies he may be buried in the usual burial ground, nor is there anything to prevent himfrom associating with other Mahomedans outside the community which he has offended. His position thus more closely resembles that of a person expelled from a social club than that of a Hindu outcaste." So far as this is a finding of fact, it is binding upon this Court in second appeal and the only question is, whether and how;"in point of law that finding affects the rights of the parties now in dispute.

(3.) It is an established principle of our Courts, sanctioned by the authority of the Judicial Committee of the Privy Council, that suits relating to marriage, where the parties are Mahomedans, must be determined according to the principles of the Mahomedan law. In laying down that principle in Moonshee Buzloor Ruheem V/s. Shumsoonnissa Begum and Jadondth Bose V/s. Shumsoonnissa Begum (1867) 11 M.I.A, 551, p. 610, the Judicial Committee point out that, marriage being, according to the Mahomedan law, a contract, "gross failure by the husband of the performance of the obligations which the marriage contract imposed on him for the benefit of the wife, might, if properly proved, afford good grounds for refusing to him the assistance of the Court. And, as their Lordships have already intimated, there may be cases in which the Court would qualify its interference by imposing terms on the husband. But all these are questions to be carefully considered and considered with some reference to Mahomedan law." Their Lordships are particular in using the words "some reference to Mahomedan law," which must be construed to mean reference to the spirit, not the letter, of the law and not to exclude any ground of refusal which, though not falling within the conditions annexed in express terms to the marriage contract by the Mahomedan law, is based upon the customary law of status to which the parties were subject at the time of marriage. It was held so long ago "as 184-7 by Sir Erskine Perry in the Kojahs and Memons case (1847) Perry O.C. 110 that " customs conflicting with the express text of the Koran can be valid among a Mahomedan sect. " And according to Mr. Ameer Ali in his Mahomedan Law, Vol. II, at p. 372 (2nd Edition): "Every case, in which the question of conjugal domicil is involved, will depend, says De Menerville, upon its own special features, the general principle of the Mahomedan law being the same as in other systems of law, viz., that the wife is bound to reside with her husband, unless there is any valid reason to justify her refusal to do so. The sufficiency or validity of the reasons is a matter for the consideration of the Kazi or Judge, with special regard to the position in life of the parties and the usages and customs of the particular country in which they reside."