SAINUDDIN Vs. LATIFANNESSA BIBI

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff for restitution of conjugal rights against his wife the defendant No. 1. The facts of the case are shortly these: The parties were married in 1308 when a kabinnamah was executed but not registered. This document was subsequently lost. A dispute then arose between the parties which was settled by the execution and registration of a second kabinnamah in 1313. Among other matters the new kabinnamah provided that the plaintiff would not take a second wife without the defendant s permission. The document concluded as follows:-- Be it noted that if I violate any of the aforesaid conditions or any portion thereof, I delegate to you my own power of giving three talaqs such as is possessed by males. Whenever you choose you may talaq or repudiate your person three times and then take another husband

(2.) It is found that between 1313 and 1320 the plaintiff appellant took a second wife without obtaining the permission of the defendant. When the present suit for the restitution of conjugal rights was instituted the wife gave herself three divorces in accordance with Mahomedan Law under the authority given to her by the husband. Both the lower Courts have dismissed the plaintiff s suit and hence this appeal.

(3.) It has been contended before us that a post nuptial delegation of the power of divorce or tufwees-i-talaq, as it is called by Masai man lawyers, is not valid. No authority has been cited for such a proposition. A reference to books on Mahomedan Law makes it abundantly clear that such delegation is valid. In fact most of the instances of tufweez given in the books are post-nuptial and refer to authority given by a person to another who is already his wife. Reference may be made to Baillie s Digest of Mahomedan Law, p. 241. The more difficult questions, however, that have been raised before us are the following: I. That the authority given to the wife could only be exercised immediately in the majlis in which it was given and was lost, not being so exercised. II. That the authority should have been exercised immediately on the happening of the event upon which it was contingent. III. That the delegation was revocable and the institution of the suit amounted to such revocation.