ABDUL LATIF KHAN Vs. NIYAZ AHMAD KHAN

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by two of the legal representatives of one Mnsammat Akbari, deceased, for a portion of her alleged dower. Musammat Akbari was married to the defendant on the 5 of February 1906. She died on the 28 of December 1906, before consummation of the marriage. The plaintiff states that the amount of her dower was Rs. 20,000, that, as the marriage was not consummated, only one-half of that amount is payable by the husband, and that the plaintiffs are entitled to a half of that half, namely to Rs. 5,000. THIS sum the plaintiffs seek to recover in this suit. The Court of first instance dismissed the suit and the decree of that Court was affirmed by the lower appellate Court. It has been found by the learned Judge that at the time of her marriage Musammat Akbari was suffering from a serious illness which prevented consummation of the marriage and that she died of that illness. It has also been found that the defendant, her husband, was not aware that she was suffering from that illness at the time of the marriage, and that the fact of the illness was suppressed by the father of the girl. On these findings the learned Judge has come to the conclusion that the consent of the husband was obtained by fraud. As according to the finding of the Court below, there was an active concealment of a fact which should have been brought to the notice of the husband in order to obtain his free consent to the marriage, a fraud was perpetrated on him at the time of the marriage. It is stated in Mr. Amir Ali's work on Muhammadan Law, Volume II p. 326, on the authority of the Radd-ul-Mukhtar that "when consent to a contract of marriage has been obtained by force or fraud such marriage is invalid unless ratified". He also lays down on the same page that "a marriage contracted by a sick person is dependent on consummation so that if he die of that illness without consummation the contract is void and the woman has no right to dower or succession". The authority for this view is the Sharaya which, is an authority on Shia Law by which the parties to this case are not governed. But Mr. Amir Ali also says on the same page that "It is needless to add that there is very little difference on those points between the Shias and the Sunnis". The learned Vakil for appellant contends that this is the learned author's own view only and that he has cited no authority in support of it. The learned Vakil, however, has not been able to refer us to any authority which would justify us in coming to a different conclusion. He relies on the following passage on page 405 of the same work: "If the wife however, was suffering from some illness at the time of marriage which prevented consummation and eventually caused her death, her right to the dower would be transmitted to her heirs", and contends that this is inconsistent with the opinion expressed on page 326, as quoted above. We do not think this is so. What is referred to on page 405 is the case of a valid marriage where there has been no fraud or coercion. As we have pointed out above, if a marriage was procured by fraud, it is invalid. In this case according to the finding of the Court below the marriage of the defendant with the deceased, Musammat Akbari, was the result of a fraud perpetrated upon him and, therefore, it was an invalid marriage. It necessarily follows that the defendant was not liable to pay the dower of the deceased and the plaintiffs suit has been rightly dismissed. We dismiss the appeal with costs including fees on the higher scale.