KHATIJABIBI UMARSAHEB Vs. UMARSAHEB ANSERSAHEB

JUDGEMENT

(1.) This was a suit by the appellant wife against the respondent husband for a dissolution of marriage under the Sunni Mahomedan law by which the parties are governed and for the amount of the Meher or dower fixed at the time of the marriage, on the ground that the husband had falsely charged her with adultery. The suit was defended by the respondent on the ground that the charge was true. Both the lower Courts have found that the appellant was guilty of adultery and dismissed the suit for divorce, the trial Court holding that the claim for Meher was premature. The wife appeals.

(2.) Before evidence was led in the case, the pleader for the wife; applied that both the parties should be put upon special oath. The Court granted the application and each took an oath under the form prescribed for "Laan" with the necessary imprecations. The husband asserted, the wife denied the charge. Thereupon the pleader for the wife asked the Court to pass a decree for divorce immediately on the ground, that the wife was so entitled under Mahomedan law. The trial Court held that she was not so entitled and that it was necessary to proceed to record evidence and findings upon the issues. Evidence was then recorded on both sides and a finding as to adultery was recorded against the wife, and her suit was dismissed.

(3.) It is argued for the appellant in this Court that the special oath complied with the form of "Laan" laid down under the Mahomedan law and that the appellant is, therefore, entitled to a decree for divorce, even if we accept in second appeal the finding that she has been guilty of adultery. Reliance is placed on the observations of Sir Roland Wilson in his Anglo Mahammedan Law, 5 Edition, p. 148, which are as follows: The fact of a husband having (whether truly or falsely) charged his wife with adultery, will (probably) entitle her to claim a judicial divorce, without prejudice to any proceedings for defamation which she may be advised to institute, and independently of the result of any such proceedings.