Mohd. Khan v. Mst. Shahmali .

1. This is the defendant's second appeal and arises out of a suit for dissolution of marriage brought by Mst. Shahmali in the Court of Sub Judge. Handwara. The trial court dismissed the suit of the plaintiff. On appeal the learned District Judge Baramulla reversed the judgment and decree of the trial court, and decreed the suit of the plaintiff.

2. The case of the plaintiff was that she was married to the defendant Mohd Khan in the year 2007 ??? and that after the Nikkah ceremony a pre-nuptial agreement dated 25-7-2007 was executed by the defendant in favour of the plaintiff's father. According to this agreement the defendant had to live as Khana Damad in the plaintiff's parental house. It was inter alia agreed upon that in case the defendant would leave the plaintiff's house he would pay a sum of Rs. 700.00 to the plaintiff as expenses Incurred by the father for the marriage ceremony, and in default of payment of this amount the condition would operate as divorce. The plaintiff further alleged that the defendant did not fulfil the condition of the agreement. He ran away from her partental house 4 years before the institution of the suit. He failed to return during these 4 years and has not performed the conjugal obligations. She has not been maintained for all these years and the treatment of the defendant was cruel and harsh during all these years.

3. The trial court after raising necessary issues in the case held that the plaintiff had failed to establish that the defendant had himself run away from his father-in-law's house. The defendant resided with the plaintiff for quite good number of years. The fact was that the plaintiff's father had himself sent the defendant to Karnah for labour. When the latter returned from Karnah he was refused access to his wife., There was thus no question of violation of any condition of the argeement. The case of maltreatment of the wife by the husband was not proved. On appeal the learned District Judge after discussing the evidence extant on the record came to the positive conclusion that the execution of the agreement by the defendant was established. According to the condition in the agreement the defendant had to pay a sum of Rs. 700.00 if he left his father-in-law's house, and if he failed to do so that would operate as divorce. The learned appellate court also found that the defendant had run away from his father-in-laws house and that notice sent by the wife demanding Rs. 700.00 from the husband had been refused by the latter. On the whole the appellate court did not agree with the contention of the husband that he was deceitfully made to leave the house of the plaintiff.

4. As regards the validity of the agreement the court of first appeal held that this agreement was not in any way opposed to the Muslim Law and was not in any way unconscionable. The violation of the condition by husband entitled the wife to seek divorce from the husband. In fact the violation of the condition itself operated as divorce. The suit of the plaintiff was accordingly decreed.

5. The only point that has been urged before me in this second appeal is that the agreement is not proved and if held to be proved is unenforceable. The condition of non-payment of Rs. 700.00 by the husband is opposed to Public Policy and violation of this condition would not operate as Talaq by the husband to his wife. Learned counsel for the appellant has relied upon the observations made by this court in AIR 1970 J & K 154.

6. Now so far as the agreement in question is concerned there is a clear finding of the first appellate court in favour of its execution by the husband. There is no compelling reason for this court to disturb this finding of fact. The question, however remains for consideration is whether the condition in the agreement is opposed to Muslim law and whether the violation of this condition would entitle the wife to seek divorce from the husband. In my opinion a pre-nuptial agreement according to which the husband undertakes to pay the amount of marriage expenses incurred by this father-in-law in case he leaves the parental house of his wife is not opposed to the policy of the village folk who usually bring Khana Damads for their daughters and keep sons-in-law in their houses. When a villager brings a Khanadamad for his daughter he has to undergo expenses for the marriage. The husband has almost to incur nothing. It is the father-in-law who has to make provision for everything both for his son-in-law and for daughter kept at home. In fact the Khana Damad is brought as a son in the house. Should the son-in-law repudiate his Khanadamadi and decide subsequently to leave parent's house of his wife and to take his wife along with him, or runs away from there without any rhyme or reason and does not maintain his wife and perform the matrimonial rights, he upsets the whole arrangements of the family and of the house. On the happening of such a contingency and in such a situation which is so vexing both for his father-in-law and for his wife if he is called upon to pay the specified amount (which however must be reasonable according to the paying capacity) undertaken by him to pay can it be said that the terms of such a pre-nuptial agreement are void and unenforceable and the Clause relating to its enforcement is unconscionable or opposed to public policy? In my opinion it is not the reason is that according to the institution of Khanadamadi which is prevalent in the valley of Kashmir a Khanadamad puts himself voluntarily under a customary obligation to live in his father-in-law's house permanently, for that solves many of the problems of the family. He himself enioys some amenities. He has not to bother much about his wife's maintenance. On his father-in-law's death his wife succeeds as a son and he himself acquires a life interest in the property after the death of his wife. So if in the pre-nuptial agreement the son-in-law binds himself to pay a specified sum as token money spent by his father-in-law on the marriage on his running away from the house and deserting his wife then on the happening of this contingency if he is called to pay the specified sum that in my opinion would not constitute a doctrine opposed to Muslim Law. The observations made in AIR 1970 J & K 154 and relied upon by the counsel for the appellant have got no relevance to the facts of the present case. That was a case where a Khanadamad had to live like a surf or servant in the house of his father-in-law; it was held that:—

“Where by an agreement between Mohammadan husband (a Khanadamad) and wife, the husband agreed that he would not commit an act of deceit by disobeying his father-in-law or by not rendering service to him and on breach of any of the conditions therein the wife would be entitled to divorce her husband such conditions were not conducive to best spirit of marriage and the agreement was opposed to public policy. If the Khana Damad failed to render service to his father-in-law, that would not operate as a divorce for dissolution of marriage between the couple.”

7. To this view I fully subscribe even now, but such is not the case before us.

8. The next question is whether the violation of such a condition would operate as divorce. In Mulla's Mahomedan Law (vide Section 309) a divorce may be pronounced so as to take effect on the happening of a future event. This is called a case of contingent divorce. In AIR 1936 All 387 the view taken is that under Mohammedan Law a divorce may be so pronounced as to come into effect not immediately, but at some future time, contingent on the happening of some specified future event. Faizi in his Mohammedan Law has observed that the husband has the power to delegate his own right of pronouncing divorce to the wife. A stipulation that under certain specified conditions the wife can pronounce divorce upon herself has been held to be valid provided first, that the option is not absolute and secondly that the conditions are reasonable and not opposed to public policy.

9. Again In AIR 1921 All 152 it was held that where an anti-nuptial agreement made between a lady and a prospective husband and the prospective father-in-law provided for the payment of certain amount in the event of any future contingency that was a vaild agreement and was enforcible even after divorce. In AIR 1950 Cal 304 the view laid down is that an anti-nuptial agreement by a Muslim husband that he would pay separate maintenance to his wife in case of disagreement, and that the wife would have power to get herself divorced, in case of the failure of husband to pay the amount was not opposed to the public policy and was enforcible under the Muslim Law.

10. For the foregoing reasons I am in agreement with the learned appellate court that the condition as laid down in the agreement is not opposed to the Muslim Law or public policy and the violation of this condition would entitle the wife to claim separation from her husband.

11. In fact I am given to understand by the learned counsel for the appellant that the plaintiff has already married a second husband after the judgment of the first appellate court. The judgment and decree of the District Judge Baramulla are accordingly affirmed and the appeal is hereby dismissed, but leaving the parties to bear their own costs.

12. Appeal dismissed.