FUL CHAND BIBEE Vs. NAWAB ALI CHOWDHRY

JUDGEMENT

(1.) This is a suit in which a woman sues the heirs of a deceased Muhammad-an for the deferred portion of the maharana provided for by a kabinnamah. The defence to the suit was that the woman was divorced in 1304 B.S. or 1897, and that the cause of action accrued at the time of her divorce and that she is therefore Statute-barred under Art. 104 of the Limitation Act. To this it is answered that, admitting the facts found by the lower appellate Court, still no divorce took place. The divorce was by talak bring pronounced three times, but it was pronounced in the absence of the wife though in presence of various witnesses including the wife's father.

(2.) The first question, which we have to decide, is whether the absence of the wife makes the pronouncement of the talak void and inefficacious. In our opinion it does not. The point is dealt with in the book of Mr. Ameer Ali in Section 3 of Chapter XII, where he says: "It is not necessary for the husband himself to pronounce talak in the presence of the wife, but it is necessary that it should come to her knowledge." The matter is also dealt with in Wilson's Digest at page 164, but not so decisively. It also seems to be the opinion expressed in Nawab Abdur Rahman's Institutes of Mussalman Law. The matter has twice, as far as we are aware, been dealt with by the Court; in the first place, in the case of Furzund Hossein V/s. Janu Bibee 4 C. 588, and secondly, in the case of Sarabai V/s. Rabiabai 30 B. 537. In the second of these cases a distinct opinion is expressed that it is not necessary for the wife to be present, when the talak is pronounced, although this is an obiter inasmuch as that case dealt with a written instrument of divorce. In the previous Calcutta case, the matter is also dealt with and the point itself is not directly noticed but talak was there pronounced in the absence of the wife, and it is significant that the case is not decided on that point, which it would have been, if it had been fatal to the effect of the divorce. We, therefore, hold that it is not necessary for the wife to be present when the talak is pronounced. It is necessary certainly for the purpose of dower that the fact of the pronouncement of talak should come to her notice. That it came to the notice of the woman there can be no doubt, for before her husband's death she saw him and claimed the dower.

(3.) This, however, leads us to the second question as to whether or not the present suit is barred by limitation. The talak, as we have said, was pronounced in 1897. The suit was brought in 1905 and the husband died a few months only before the suit. If we count the period of limitation from the time of divorce or from a little later, it is obvious that the suit is Statute-barred. Now, the findings are that the talak was pronounced in the presence of witnesses including the woman's father, who took or purported to take a leading part in the proceedings as representing the woman, and the findings also go to show that the woman has been living with her father, apparently continuously, since the time of the divorce. This particular question, when the woman got knowledge of the talak, was not argued in the first instance, and consequently the findings are not as definite on this point as they may be. But on the findings such as they are before us, we have no doubt at all that the woman had notice of the talak anterior to the period of limitation.