ZAFAR HUSAIN Vs. UMMAT-UR-RAHMAN

JUDGEMENT

(1.) This second appeal arises out of a suit brought by Musammat Ummat-ur- Rahman, wife, against Zafar Husain, her husband. The prayer by the plaintiff is that the marriage of the plaintiff with the defendant be dissolved. There is a further prayer for damages and costs. The reason given is that the defendant has treated the plaintiff with cruelty, intends to kill her or out off her nose, stated before several persons that the plaintiff had illicit inter-course with her brother, Aziz-ur-Rahman, and imputed fornication to her.

(2.) The written statement filed by Zafar Husain is to the effect that the plaintiff s claim has been brought on false allegations. There was no ill feeling between the plaintiff and himself nor quarrel. No charge has been made by the husband against the wife of misconduct with her brother. The story had been invented by the members of the wife s family. The plaintiff is literate and sensible and has always been obedient and doing her duty towards the defendant.

(3.) The Court of first instance, i.e., the Subordinate Judge of Farrukhabad, is a Mohammedan by creed and he has gone very carefully into the case. He declared the marriage to be dissolved. The husband then went in appeal to the Additional District Judge of Farrukhabad. This Judge found that the Civil Courts have jurisdiction to try suits of this nature. That the doctrine of "laan" is still part of the Muham-madan Law which has to be administered in Indian Courts. I shall refer to the doctrine at laan again. He found that the allegations of misconduct were as a matter of fact made by the husband, that there had been no retraction by the husband. He held as the result that the lady was entitled to claim judicial separation. He confirmed the decree of the Court of first instance. He also found, upon the plea that no fair opportunity had been given to the husband to examine the witnesses, against the husband, that the husband had had such opportunity, but had not availed himself of it. The husband has come here in second appeal and the memorandum of appeal contains seven pleas: (1) That the law of "laan" has no place in Anglo-Muhammadan Law and must be considered obsolete. (2) That "laan" does no more than give the wife the option of applying to the Court to put the husband upon the alternative of either retracting the accusation or stating on oath his wife s treachery and no suit for dissolution of marriage is maintainable without the above formality being strictly complied with. (3) That the husband has not only not made the accusation of his wife s infidelity on oath but has sworn his wife to be faithful to him and sued his wife for restitution of conjugal rights. (4) That assuming that the husband charged his wife with infidelity, the statement of the husband on oath coupled with the statements in the duly verified plaint and his whole course of conduct, amounted to a retraction of the accusation. (5) That no suit for dissolution of marriage was maintainable. (6) That the appellant was prejudiced by no proper opportunity being given to him for the production of his evidence. And lastly that the appellant is entitled to a decree for restitution of conjugal rights.