AMIRUDDIN Vs. MUSAMMAT KHATUN BIBI

JUDGEMENT

(1.) The dispute between the parties to this appeal, who are husband and wife, is as to whether the conjugal relations between them still subsist. The suit out of which this appeal has arisen was brought by the wife, the plaintiff-respondent, for the recovery of her dower, her moveables in the possession of her husband, the defendant-appellant, or their value, and her maintenance during iddat, The claim was brought on the allegation that she had been lawfully married to the defendant some years ago and had lived with him as his wife up to the 8th of September 1913, when he divorced her at the railway station at Allahabad as she was going with her parents to Mahoba against his wishes. The defendant admitted the marriage, but denied the alleged divorce. He further pleaded that the words used by him at the railway station on the 8th of September 1913 did not in law have the effect of a valid divorce and in any case he had the option of revocation which he exercised within the prescribed period. The Court of first instance believed the story of the plaintiff and repelled all the pleas in defence. It found on the evidence in the case that the defendant had on the 8th of September 1913 addressed words of repudiation three times in immediate succession to his wife, which had the effect of a valid divorce under the Muhammadan Law. As to the plea of revocation it held that the defendant as a matter of fact did revoke the divorce, but he had no option of revocation as he had pronounced a triple divorce which was irrevocable. The claim was accordingly decreed and on appeal the decree of the first Court was affirmed. In second appeal to this Court the husband contends that the divorce he pronounced on the 8th of September 1913 was not under the Muhammadan Law. a valid divorce, and if it was, he had the option of revoking it. He impeaches the validity of the divorce on the ground that under the Muhammadan Law the only effective divorce is and should be that which is pronounced in the form and under the conditions sanctioned by the sunna or the traditions, and any other mode of divorce which is inconsistent with them or disregards the qualifications laid down by them does not dissolve the marriage. In the present case the divorce pronounced by the appellant was admittedly not in accordance with the form sanctioned by the sunna and hence was inoperative. It is conceded on behalf of the appellant that other modes of divorce at variance with those authorized by the traditions have also been recognised by the Muhammandan Jurists as valid forms of repudiation and that the divorce pronounced by the defendant was in one of those forms. But they are, it is argued, innovations introduced by the jurists to oblige the Ommeyyade Caliphs who wanted greater facility and easier rules of repudiation, and should not be recognised. In fact one of the forms recognised by the jurists and which was the mode of divorce in the present rase was distinctly disapproved of by the Prophet, Reliance is placed by the appellant in support of his contention on Mr. Ameer Ali s book on Muhammadan Law. The passages cited to us are to be found in Volume II, page 514, and are as follows: "The Talak-ud- Bidaat, as its name signifies, is the heretical or irregular mode of divorce, which was introduced in the second century of the Muhammadan Era. It was then that the Ommeyyade monarchs, finding the checks imposed by the Prophet on the facility of repudiation galling, looked about for some escape from the strictness of the law and found in the pliability of the jurists a loophole to effect their purpose. As a matter of fact the capricious and irregular exercise of the power of divorce which was in the beginning left to the husbands was strongly disapproved by the Prophet, It is reported that when once news was brought to him that one of his disciples had divorced his wife, pronouncing the three talaks at one and the same time, the Prophet stood up in anger on his carpet and declared that the man was making a play thing of the words of God and made him take back his wife."

(2.) We do not think that the contention for the appellant should prevail, It is true that the sunna or the traditions sanction only two modes of divorce, i.e., ahsan and hasan, but ever since the second century of the Muhammadan Era the bidai or sinful or irregular form introduced by the jurists, which is admittedly inconsistent with the traditions, has been also recognised as a valid mode of repudiation. Mr. Ameer Ali on whose book great stress is laid nowhere says that divorce pronounced in the bidai form is invalid and should not be given effect to. Such a divorce has been upheld in Courts in this country. We would refer to the case of In re Abdul Ali Ishmailji 7 B. 180 ; 4 Ind. Dec. (N.S.) 121. The judgment in that case is a short one and is as follows: "Talak-ul-bidaat or irregular divorce, which is effected by three repudiations at the same time, appears from the authorities to be sinful, but valid; and it was recognised as valid by this Court, In re Kasam Pirbhai 8 Bom. H.C.R. 95 CR."

(3.) The learned Counsel for the appellant wants us to take a different view. He says that the point has never come up before, and has never been decided by, this Court and that we are not bound to follow the Bombay case. We should follow and enforce Muhammadan Law as it is and not as it has been improved upon and added to by the jurists at the instance of the Ommeyyade monarchs. We think that it is too late in the day for the appellant to ask us to disapprove of an established practice which has been in vogue for centuries. He has not cited a single authority in support of his proposition that the bidai mode of divorce is invalid. On the other hand we would quote from Mr. Tyabji s book to show that the bidai form of repudiation is the most favoured. Vide Mr. Tyabji s Muhammadan Law, page 144, which runs as follows: "By a deplorable, though natural, development of the Sunni Law, it is the fourth and the most disapproved or sinful mode of divorce (that is the bidai form) that seems to be most favoured even by the law itself. For, the requirements of the other mode being seldom attended to, it is generally assumed (on the principle that the intention of the parties must as far as possible be given effect to) that the fourth mode was intended to be employed, with the result not only that the formalities for the divorce are done away with, but even its effects are aggravated for, inasmuch as the pronouncement is presumed to be in this mode, it is presumed to be irrevocable. It is indeed possible that the Sunni Jurists wished to inflict on a husband, who disregarded the requirements of Section 136" (that is, divorce according to the traditions), "the penalty of rendering the divorce irrevocable; and there are indications that they considered it always a favour to the wife to relieve her of the husband."