ASHA BIBI Vs. PNKADIR IBRAHIM ROWTHER

JUDGEMENT

(1.) One of the defences of the appellant as defendant in a suit for restitution of conjugal rights was that she had been divorced in the irrevocable form by the respondent (plaintiff in the suit) by pronouncement of Talak three times on the 9th January 1906 that is, sometime before the institution of the suit The District Munsif believed the evidence adduced on behalf of the defendant, on the point, but the District Judge in appeal did not come to a finding on the question whether Talak was in fact pronounced as alleged, but, being of opinion that the words of repudiation must be addressed to the wife, held that as in the pre- sent case Talak is not shewn to have been addressed to the defendant it would not be effective to dissolve the marriage. We have considered the evidence as to repudiation for ourselves and we think that the Munsif's conclusion that the respondent pronounced Talak three times is supported by evidence and the probabilities of the case. The words which the respondent actually used were Oh, Naina Mahamad Rowther It is 4 or 4 1/2 years since I married your daughter. You have now brought her away. This is the Talaku for your daughter. This is the Talaku for your daughter. This is the Talaku for your daughter. Talaku once, Talaku twice, Talaku thrice, Muttalaku. Hereafter you may marry your daughter yourself or marry her to a Pallan. She has become my mother. "

(2.) We have no doubt that the District Judge, in holding that these words did not effectuate a divorce because they were addressed to the defendant's father although they undoubtedly referred to the defendant, took an erroneous view of the Hanafi Law which is the law of both the parties on the subject. According to the principles of that Law the husband, as we shall see, has an absolute right to dissolve the marriage, and the only condition for a valid exercise of such a right is that he must be major and of sound mind at the time. The wife's consent or absence of consent to the action of her husband is immaterial and there is nothing tharefore in the reason of the law why in order that a divorce pronounced by a husband should be valid the words of repudiation should be addressed to or uttered in presence of the wife. All that the law requires is that the words should refer to the wife though if they be not communicated to her at the time a question may possibly arise as to whether she is not entitled until she comes to know of the divorce to bind her husband by certain acts such as pledging his credit for obtaining the means of subsistence. That the law on the point is as we have stated will-be easily intelligible if we bear in mind the theory and the principles which constitute the Mahomedan conception of marriage as a legal institution. In Tawzib (Cal. Ed. page 71) marriage is described as " a contract which has been legalised for manifold objects such as preservation of the species, the fixing of descent, restraining men from debauchery and the encouragement of chastity, promotion of love and union between the husband and the wife and of mutual help in earning livelihood." Marriage is regarded as a contract (aqd), for no such relations as those connoted by marriage can be established between two members of the opposite sexes except by their voluntary action, in the case of minors, persons recognised by the law as guardians or curators for this purpose are authorised, subject to certain important conditions and restrictions, to enter into the contract on the minors behalf. Marriage differs, however, from other contracts in one important respect; it cannot according to the Sunni law be expressed to be limited for a period of time.

(3.) As incident to a valid marriage the law imports certain rights and obligations inter se between the parties. The theory on which such marital rights and obligations are based is that the wife upon marriage surrenders her further marital freedom and the husband acquires a right to her connubial services (mutat) in consideration of certain obligations mostly of a pecuniary character incurred by him. Hence the husband is spoken of in the books as the owner, as it were, of her conjugal services, to secure which he is entitled to exercise over the wife a certain amount of personal authority and control. The wife has also a right to the conjugal society of the husband during the continuance of the marriage, but it cannot be said to be of the same absolute character as the corresponding right of the husband. The husband does not by marriage lose his further marital liberty, though the law, for reasons of policy, has restricted that liberty to his having four wives at one and the same time. Neither of the parties to a marriage acquires a right to or power over the property of the other, but on the, death of one partner the survivor takes a specified share of the inheritance as an heir. The obligation of the husband consists mainly in his being made responsible for the maintenance of the wife and of the children born of the marriage according to his status in life, and he is further bound to make a certain settlement of money or property called mahr or dower on the wife. In case he has more than one wife his dealings with them all must be on a strictly just and impartial basis.