Sulaiman, C.J and Iqbal Ahmad, J.:— This is a defendant's appeal arising out of a suit for recovery of half the dower debt on the ground that the defendant has divorced the plaintiff and that there had been no consummation of marriage. The plaintiff's case was that the defendant, without the knowledge or consent of the plaintiff and without any relinquishment of the dower debt, pronounced divorce which put an end to the first marriage. The claim was resisted by the defendant on the ground that at the time of the marriage fraud and misrepresentation were practised by the plaintiff's guardian, viz her father, and the marriage was voidable and therefore no claim for dower could be maintained. It was further pleaded that owing to the fact that the plaintiff's maternal aunt was a woman of low caste the defendant wanted to repudiate the marriage, and then it was agreed that there could be a khula in consideration for the relinquishment of the dower, and that the khula was ultimately gone through by the plaintiff through the medium of her father in the presence of maulvies.
The learned District Judge has come to the conclusion that the defendant's part of the story is correct and it appears that it was some time afterwards, when the defendant discovered that the plaintiff's grandmother on her mother's side was a sweeper woman, he no longer desired to have anything to do with his wife; that the parties had never lived together; and ultimately Qasim Husain and the plaintiff's father came to an agreement. The learned Judge has mentioned that they went to a maulvi in whose presence the divorce was pronounced in the khula: form together with the talaq form, and that it was agreed that the woman would give up her dower. To this extent the plaintiff's case that there had been no relinquishment of the dower was found to be untrue. The learned Judge has further found that she had attained the age of puberty, being about 16 or 17 years of age at the time, but that she had not attained the age of 18 years so as to be a major under the Indian Majority Act. His conclusion is that the Indian, Majority Act applied to her and that she was not competent to relinquish her dower and it was open to her to go back upon such relinquishment and reclaim the dower. He has, however, considered that it was never the case of either party that the marriage was still existing. Such a case was undoubtedly set up in the written statement but does not appear to have been pressed before the learned Judge.
The learned Judge has not recorded a clear finding as regards the case that the plaintiff herself had agreed to relinquish her dower debt. On that point the evidence of the parties was conflicting. [After discussing the evidence the judgment proceeded.] We have no hesitation in accepting the defendant's version, which is consistent with the probabilities of the case, that the khula form had been obtained with the approval and authority of the plaintiff.
It now remains to consider the questions of law which arise in this case. The Madras High Court in the case of Abi Dhunimsa Bibi v. Mohammad Fathi Uddin (1) expressed the view that “a relinquishment of her right to dower by a Muhammadan woman, who is a minor under the Indian Majority Act, is invalid under the Indian Contract Act, inasmuch as to relinquish dower is not ‘to act in the matter of dower’ within the meaning of section 2 of the Indian Majority Act.” This view has not been followed by a Bench of the Calcutta High Court in the case of Mozharul Islam v. Abdul Gani Ala , where it has been held that “if a Muhammadan minor, who is a major by his personal law but a minor under the Indian Majority Act, enters into a marriage, as he is capable of doing, he must himself enter into a contract for payment of dower”. We agree with the opinion expressed by the Calcutta High Court that the settlement of dower or its relinquishment would come within the exception contained in section 2 of the Indian Majority Act. That section provides that nothing contained in the Act “shall affect the capacity of any person to act in the following matters (namely)—marriage, dower, divorce and adoption”. The agreement to pay a certain amount of dower is a part of the contract of marriage, and there is no reason to suppose that although a person who is a minor under the Indian Majority Act, but a major under the Muhammadan law, is capable of entering into a contract of marriage he is incapable of fixing the amount of the dower. We think that on the same ground an individual who is a major under the personal law is capable of relinquishing the dower as consideration for obtaining khula. Khula is a form of divorce recognized by the Muhammadan law and comes within the exception.
If the Indian Majority Act had applied and the girl would have been a minor incapable of relinquishing her dower, then, as pointed out by the learned Judge who has referred this case to a higher Bench, the father as her guardian would have been competent to relinquish her dower debt on her behalf, as a consideration for the khula. But when the Indian Majority Act does not apply, the father could not by his own relinquishment have bound her unless she had agreed to such relinquishment. We have found that her consent must have been obtained in this case. Indeed the plaintiff in the witness box admitted that she came to know of this divorce about a month after it took place. There is no suggestion that she asserted any right to reclaim her dower. As a matter of fact she could not put forward such a case when the position taken up by her was that there had never been a relinquishment of the dower. The suit was undoubtedly instituted more than three years after the khula and the plaintiff has now admittedly married a second husband.
Mr. Tyabji in his Principles of Muhammadan Law, second edition, page 236, section 165(3), in stating the Shiah Isma'ili law on this point has remarked as follows: “The Shiah ‘Ithna’ Ashari authorities are agreed that the wife may reclaim the consideration paid to her for a ‘khul’ at any time during her ‘iddat’, and if she does so, the husband may revoke the ‘khul’ at his option.”
The text of the Sharaya-ul-Islam quoted by Mr. Shama Churn Sircar in his Tagore Law Lectures (1874) on Muhammadan law at page 412, is as follows: “When a woman's father says to her husband ‘Divorce her, and thought free from her dower’, and he does divorce her, the divorce is valid revocably, and she is neither obliged to discharge her husband from the payment of the dower nor is her father responsible.”
There is another text: “If a stranger obtained khula for a woman from her husband it is valid, provided it was with her consent and authority, because the man acted only as her vakil or agent.”
As the husband cannot revoke the khula after the expiry of the period of iddat, an irrevocable obligation is cast upon the wife to reclaim the consideration open to her within the same period, so that the husband may have an equal option to put an end to the contract. Had there been no such irrevocable obligation it would have been grossly, unfair to the husband that the khula should stand as against him after the expiry of the period of iddat and nevertheless the consideration for the khula should be reclaimed by the wife after such an expiry. Surrender of the dower is a part of the contract of khula and in the event of the consideration failing, there would be an option to revoke the khula.
It is open to the plaintiff to reclaim her dower, but she could not exercise the option after the expiry of the period which would automatically put an end to the Husband's right to revoke the divorce.
There is no suggestion in this case that any such claim was put forward within the period of iddat, and as pointed out above the suit was not instituted till several years afterwards. We think that after the expiry of the period of iddat the plaintiff's right to reclaim the dower which had been relinquished by her to her husband could not be exercised.
We accordingly allow the appeal, set aside the decree of the lower appellate court, and dismiss the plaintiff's suit with costs in all courts.