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Kathiyumma v. Urathel Marakkar

Madras High Court

Feb 26, 1931

Judgment

Subsequent
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Comprehensive Summary of the Opinion

Factual and Procedural Background

The parties in this suit are Sunni Mahomedans of the Hanafi subsect. The plaintiff (the wife) sued for her deferred dower. The central procedural dispute was whether her claim was barred by the three-year limitation under Article 104 of the Limitation Act (which prescribes three years "from the date when the marriage is dissolved by divorce" for suits for deferred dower).

The defendant (the husband) pleaded that he had validly pronounced talak more than three years before the suit, and so the claim was time-barred. At first instance the Munsif overruled the defendant's contention and gave judgment for the plaintiff. On appeal the Subordinate Judge concluded that a valid talak had been pronounced on 21 July 1919, communicated to the plaintiff by the Kazi on 24 August, and that the suit (filed 25 July 1922) was therefore barred; accordingly he dismissed the suit. The District Munsif, however, found that the talak had actually been pronounced on 21 August and held that the suit was within time.

A material piece of evidence was Ex. A, a communication from the Kazi dated 24 August stating the date of talak as 21 August. The Kazi explained that the defendant had told him the talak was on 21 July and that the Kazi's statement of 21 August was a slip. The District Munsif rejected the Kazi's explanation and treated the talak as having been pronounced on 21 August. The opinion at hand proceeds, for the sake of decision, upon the Subordinate Judge's factual findings (that the talak was pronounced on 21 July and communicated on 24 August) and addresses the limitation and related legal issues on that footing.

Legal Issues Presented

Whether the plaintiff's claim for deferred dower is barred by limitation under Article 104 of the Limitation Act (i.e., whether the three-year period runs from the date the talak is pronounced or from the date the divorce comes to the wife's notice).
Whether a talak pronounced in the absence of the wife takes effect immediately upon pronouncement or only when it comes to the wife's knowledge (to the extent this affects the calculation of limitation for deferred dower).
Whether the defendant is estopped from asserting an earlier date of talak because his agent (the Kazi) communicated a later date on which the plaintiff relied.

Arguments of the Parties

Defendant's Arguments

The defendant pleaded that the talak was validly effected more than three years before the suit and therefore the plaintiff's claim for deferred dower was barred by Article 104 of the Limitation Act.
The defendant informed the Kazi that the talak had been effected on 21 July 1919 (as alleged), and maintained that the earlier pronouncement made the suit time-barred.

Appellant's / Plaintiff's Arguments (as presented)

The plaintiff relied (through lower court findings that were favorable to her) on the proposition that for the purpose of dower the marriage is dissolved by divorce only when the fact of talak comes to the wife's notice. On the findings (communication on 24 August), the plaintiff argued the suit was within three years.
Dr. John, for the appellant (a party who challenged the Subordinate Judge's finding on the date), contended that the Subordinate Judge's finding (that the talak was on 21 July) was perverse and that it was open in second appeal to set it aside even though it was a matter of fact. (The court did not need to decide perversity, proceeding instead on the Subordinate Judge's findings.)

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sarabai v. Rabibai [1906] 30 Bom. 537	Authority indicating that a bain talak reduced to writing may take effect immediately on the mere writing (even without the wife receiving the writing).	The court noted the passage but held the actual point decided in that case was different; it treated Sarabai as showing a contrary view but not decisive on the specific question whether talak takes effect only on the wife's knowledge.
Fulchand v. Nawab Ali Choudhary [1909] 36 Cal. 184	Held that absence of the wife does not render the pronouncement of talak void and that for the purpose of dower it is necessary that the fact of pronouncement should come to the wife's notice.	The court followed this authority as directly applicable: it accepted that for dower purposes the wife's notice is necessary and relied on this holding in concluding time ran from the date of communication.
Ashabibi v. Kadir Ibrahim Rowther [1910] 33 Mad. 22	Held that repudiation words need not be addressed to or uttered in the wife's presence; discussed incidents of marriage and divorce; contains observations (some obiter) about immediate efficacy of talak.	The court treated this decision as not directly decisive on the notice question; it considered parts of the judgment obiter but noted it suggests possible reservations to the doctrine of immediate efficacy.
In re Raja Saheb Rasul Saheb	Support for the proposition that "the fact of the talak having been effected must come to the notice of the wife" and that knowledge within a reasonable time is sufficient.	The court cited this case as supporting the position that communication to the wife within a reasonable time satisfies Mahomedan law requirements; it relied on it as one of the supportive authorities.
Ma Mi v. Kallander Ammal A.I.R. 1927 P.C. 15	Cited among authorities showing that a husband may pronounce a valid talak in the absence of the wife.	The court referenced it as part of a group of authorities establishing that talak pronounced in the wife's absence can be effective, but treated the notice-for-dower question as governed by Fulchand.

Court's Reasoning and Analysis

The court proceeded on the Subordinate Judge's factual findings (as it was unnecessary to decide whether those findings were perverse): namely, that the talak was pronounced on 21 July 1919 and that the fact of the pronouncement was communicated to the plaintiff by the Kazi on 24 August 1919.

The analysis turned on two key legal points found in the authorities considered:

Whether a talak pronounced in the absence of the wife is effective immediately (some authorities, exemplified by Sarabai, suggest immediate effect when reduced to writing).
Whether, for the purpose of a claim for deferred dower, the dissolution of marriage by divorce occurs only when the fact of the talak comes to the wife's notice (as stated in Ameer Ali's treatise and as held in Fulchand).

After reviewing the cited authorities, the court concluded that although there was a preponderance of views in favor of the proposition that a talak pronounced in the wife's absence is valid, it was unnecessary to resolve the general, abstract question whether such a talak is effective immediately. Instead, the court followed the specific holding in Fulchand v. Nawab Ali Choudhary that "it is necessary certainly for the purpose of dower that the fact of the pronouncement of talak should come to her notice."

Applying this rule to the facts (communication on 24 August 1919), the court held that the plaintiff's right to claim deferred dower accrued on 24 August 1919. Calculated from that date the suit (filed 25 July 1922) was within the three-year limitation period under Article 104.

The court also gave an alternative and independent ground for the plaintiff's success based on estoppel. The defendant had constituted the Kazi his messenger. The Kazi's written communication (Ex. A) informed the plaintiff the talak was on 21 August. The plaintiff acted on that representation and was not told of the alleged earlier date (21 July) until she came to court. The court held that:

A representation by an agent (the Kazi) is as effectual for the purpose of estoppel as if made by the principal (the defendant).
Because the plaintiff relied on the Kazi's representation and there was nothing to put her on notice that it was incorrect, the defendant was estopped from asserting the earlier date so as to defeat the plaintiff's rights.

On the evidence the court accepted the lower courts' finding that the plaintiff's dower entitlement was Rs. 105 (and not Rs. 150). Accordingly, the court allowed the second appeal to that extent and directed judgment for Rs. 105 with 6% interest from the date of the plaint and costs throughout on the full amount claimed.

Holding and Implications

HOLDING: APPEAL ALLOWED.

Direct consequences and operative orders:

The court held that, for the purpose of a claim for deferred dower under Article 104, the marriage is treated as dissolved by divorce when the fact of the talak comes to the wife's notice; on the found facts that was 24 August 1919, and the suit filed 25 July 1922 was therefore within the three-year limitation period.
Alternatively, the court held that the defendant was estopped from asserting an earlier date for the talak because his agent (the Kazi) had communicated a later date on which the plaintiff reasonably relied.
The plaintiff was adjudged entitled to Rs. 105 (not Rs. 150) as deferred dower; judgment was directed for Rs. 105 with interest at 6% per annum from the date of the plaint and costs throughout on the full amount claimed.

Broader implications: The court explicitly declined to decide the general, abstract question whether a talak pronounced in the absence of the wife takes effect immediately or only upon her knowledge. It followed the specific authority (Fulchand) as to limitation for dower; therefore the decision resolves the limitation issue on these facts but does not establish a definitive new rule resolving the broader doctrinal uncertainty.

P.R.S/S.N

Show all summary ...

1. The parties are Sunni Mahomedans belonging to the Hanafi subsect. The question I have to decide is whether the claim of the wife (the plaintiff) for deferred dower is barred by limitation under Article 104, Lim. Act. That article reads thus:

By a Mahomedan Three When the mar-for deferred dower, years, riage is dissolved by death or divorce.

2. The husband (the defendant) pleads that the talak was validly effected more than three years before the suit and that it is therefore barred. The Munsif overruled this contention and gavei judgment for plaintiff. The Subordinate Judge, finding that the claim was barred by limitition, dismissed the suit. The Subordinate Judge finds that the defendant pronounced a valid talak on 21st July 1919 and requested the Kazi to communicate the fact to the plaintiff who was informed of it by that official on 24th August. On these findings he has held that there was a valid divorce on 21st July 1919 and that the suit filed on 25th July 1922 was barred. The District Munsif has, on the other hand, found that the talak was pronounced on 21st August and held that the suit was within time.

3. The Kazi communicated the fact of the divorce by Ex. A dated 24th August, written by him to the plaintiff's father. It is common ground that so far as that letter goes, the divorce is stated to have been effected on 21st August and not on 21st July. The Kazi explains that he was informed by the defendant that the talak was effected on 21st July, but that it was due to a slip on his own part that the date was wrongly given as 21st August. The District Munsif has refused to act upon this statement and, as I have said, found that the talak was actually effected only on 21st August. The lower appellate Court has coasted the Kazi's explanation. Dr. John, for the appellant, contends that the finding of the Subordinate Judge is perverse and that it is open to me in second appeal to set it aside, although the question is one of fact. In the view I take it is unnecessary to decide whether the finding is perverse or not, for I proceed upon the footing that the Subordinate Judge's conclusions of fact are correct, namely that the talak was pronounced in the absence of the wife on 21st July and that fact was communicated to her on 24th August. On these findings, in my opinion, the suit is not barred by limitation.

4. It is now settled law that the absence of the wife does not make the pronouncement of talak void and inefficacious, for the husband may pronounce a valid talak in her absence. Sarabai v. Rabibai . [1906] 30 Bom. 537, Fulchand v. Nawab Ali Choudhary . [1909] 36 Cal. 184, Ashabibi v. Kadir Ibrahim Rowther . [1910] 33 Mad. 22, Rajasaheb Rasul Saheb, In re4 and Ma Mi v. Kallander Ammal . A.I.R 1927 P.C 15. But on the question whether the talak takes effect only after it comes to the notice of the wife, there seems to be some uncertainty. Ameer Ali in his Mahomedan Law states the law thus:

“It is not necessary for the husband himself to pronounce the talak in the presence of the wife, but it is necessary that it should come to her knowledge. If a talak is given by letter, it will take effect on the receipt of the letter by the wife. If the letter reaches her father and lie tears it to pieces there will be no talak unless the father transacts all her business, is, in fact, her agent, and resides in the same house with her. If the father should inform the wife of the receipt of the letter and deliver to her the torn pieces thereof, the talak will take effect only if the letter can be read and understood: 4th Edn, Vol. II, p. 544.”

5. In Sarabai v. Rabibai Batchelor, J. makes the following observations:

“On the contrary, the authorities show that a bain talak, such as this, reduced to manifest and customary writing, takes effect immediately on the mere writing; see e.g, Biillie, p. 233; Moulvi. Mahomed Yusoof, Vol. III, p. 95. The divorce being absolute, it is effected as soon as the words are written, “even without the wife receiving the writing”.

6. This is clearly opposed to the extract from Mr. Amear Ali's book. But I must point out that the actual point decided in Sarabai v. Rabibai is somewhat different. It was argued in that case that the divorce could not be considered final, because it was never communicated to the plaintiff. The learned Judge meets this contention by observing

“that the evidence was quite clear that every practical step was taken to communicate the divorce and make over the iddat money to the plaintiff, and that these measures, if they were frustrated, were frustrated solely by her own obstinate refusal to accept the paper or the money.”

7. In these circumstances, the learned Judge went on to say, it would be a strange result if the plaintiff were allowed to take advantage of her own inaccessibility. He added that he found nothing in the Mahomedan law to countenance such a conclusion.

8. In Ashabibi v. Kadir Ibrahim Rowthert, to which Abdur Rahim, J., was a party the question arose whether for a talak to be effective, the words of repudiation must be addressed to the wife. The learned Judges dealt in that case elaborately with the incidents of marriage and divorce under the Mahomedan law. They held that it was unnecessary that the words of repudiation should be addressed to, or uttered in the presence of, the wife. In that case, they were not, called on to consider whether the talak takes effect only when it comes to her knowledge. There are some passages, no doubt, in the judgment, from which it may be inferred that the talak becomes effective the moment it is pronounced, but the decision can hardly be said to be an authority on the question. As Mr., Ameer Ali points out, many of the observations in that judgment are obiter: see p. 548 of Ameer Ali's Mahomedan Law, Vol. 2, But there is a passage in the judgment which is relevant to the present inquiry. The learned Judges suggest that without communication a talak may cease to be effective at least for certain purposes. I quote their words:

“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.”

9. The question more directly arose in Fulchand v. Namal Ali Choudhury. That was a suit by a Mahomedan widow against the heirs of her deceased husband for the deferred portion of her dower. The defence was that she was divorced in 1897 and that the suit (brought in 1905) was statute barred under Article 104, Limitation Act. It was argued that the absence of the wife made the pronouncement of the talak void and inefficacious.

10. In holding that it did not, the learned Judges refer to the following passage in Mr. Ameer Ali's book:

“It is not necessary for the husband himself to pronounce talak in the presence of the wife, but that it is necessary that it should come to her knowledge.”

11. The law is thus stated in the judgment:

“We therefore hold that it is not necessary for the wife to be present when the taluk is pronounced. It is necessary certainly for the purpose of dower that the fact of the pronouncement of talak should come to her notice. That it came to the notice of the woman there can be no doubt, for before her husband's death she saw him and claimed the dower.”

12. There was no distinct finding when the wife got knowledge of the talak, but the learned Judges he that the suit was barred stating their reasons thus:

“If we count the period of limitation from the time of divorce or from a little later, it is obvious that the suit is statute barred * * * * But on the findings such as they are before us, we have no doubt at all that the woman had notice of the talak anterior to the period of limitation.”

13. The judgment clearly seems to proceed on the ground, that time began to run more than three years before the suit, whether the starting point was the pronouncing of the talak or the wife receiving notice of it. This case, to a large extent, supports the appellant's contention.

14. The last case cited is In re Raja Saheb Rasul Saheb, on which also the appellant relies. It was there argued for the wife that the talaknama was not valid, as it was not duly communicated to her. Shaw, J., points out that no authority was cited to show that this proposition was correct. But the learned Judge goes on to say (and this is important):

“All that appears necessary is that the fact of the talak having been effected must come to the notice of the wife.”

15. The talaknama came to the wife's knowledge within a reasonable time from the date of its execution and that (says the judgment) seems to be sufficient to satisfy the requirements of the Mahomedan law.

16. On the authorities cited, there is a clear preponderance of view in favour of the plaintiff; but I am not prepared in the absence of fuller investigation to decide, whether a talak pronounced in the absence of the wife does or does not take effect till it comes to her knowledge. It is unnecessary to decide that general question. I am content to follow the authority of Fulchand v. Nawab Ali which holds:

“It is necessary certainly for the purpose of dower that the fact of the pronouncement of talak should come to her notice.”

17. This case is referred to by Munro and Abdur Rahim, JJ., in Ashabibi v. Kadir Ibrahim Rowther, and in their elaborate judgment its correctness has not been doubted. Moreover, that very judgment on which Mr. K.P.M Menon for the respondent so strongly relies, suggests, as I have said, that the doctrine, that the divorce becomes efficacious immediately on its being pronounced, may be subject to some kind of reservation. I therefore hold that the plaintiff's right to claim the deferred dower accrued only on 24th August 1919 and that the suit is within time.

18. Article 104, Limitation Act, must be read in the light of the rule of the Mahomadan law to which I have just adverted. It provides (to quote only the material part), that for a suit for deferred dower, the period of limitation is three years from the date when the marriage is dissolved by divorce. It is a part of the Mahomedan law that, so far as a claim for dower is concerned, the marriage is dissolved by divorce only when it comes to the wife's notice. Construed in this way, there is nothing in Article 104 which stands in the plaintiff's way. I am per-pared on this ground to allow the appeal.

19. There is another ground which is equally fatal to the defendant's case. The rule of estoppel applies to the facts as found. The defendant could himself have communicated to his wife that she had been divorced; but he constituted the Kazi his Messenger. He alleges that he specifically mentioned to the Kazi that the talak had been effected on 21st July; but the latter, in words which are unequivocal, informs the plaintiff that it was effected on 21st August. Not till she came to Court was she told that August was a mistake for July. As I have said, the suit was filed on 25th July that is, before the expiry of the three years period, computing it from 21st August. Why should the plaintiff be deprived of her right she having acted upon the statement which was made to her? What was there to make her suspect that the statement might be wrong? To say that it was an innocent mistake of the Kazi is no answer; nor can it be doubted that the Kazi was the defendant's agent. A representation made by an agent is as effectual for the purpose of estoppel as if it had been made by a principal. I am satisfied that even on this ground the plaintiff is bound to succeed. I accept the finding of the lower Courts that on the evidence the plaintiff is entitled to Rs. 105 and not Rs. 150 as her dower. In the result the second appeal is allowed to that extent. There will be judgment for the plaintiff for Rs. 105 with interest at 6 per cent per annum from the date of plaint, with costs throughout on the full amount claimed.