Mahomed Abid Ali Kumar Kadar v. Ludden Sahiba, Minor, Through Her

1. The judgment of the High Court (Prinsep and Beverley, JJ.) after stating the facts as above, proceeded as follows:

It becomes necessary, therefore, in dealing with this appeal, to determine the exact effect of a muta marriage under the Shiah law, and whether it can be dissolved in the manner stated by the plaintiff, and found by both the Courts. The word muta signifies "enjoyment," and as applied to a particular form of marriage indicates a marriage of a temporary character, "the extent of the period being left entirely to the parties who may prolong or shorten it to a year, a month, or a day; only some limit must be distinctly specified, so as to guard the period from any extension or diminution." (Baillie's Digest of Mahomedan Law, Part II, on the Imamia Code, page 42). In the Tagore Law Lectures, 1874, by Shama Charan Sircar, on the same subject, at page 373, Section 517, the law is expressed in the same terms, the Tahrir-ul-Ahkam being quoted as an authority.

2. There is apparently no limit to the number of wives married in this form. The Mahomedan law limits the number of permanently married wives to four, but it is stated on the authority of the Imam Jafer Sadik that the number of muta, wives is not restricted to the usual number of four or even to seventy (see Baillie, 345). The eight rules of the contract of a temporary marriage are set out in Baillie, pages 42-44, and by Shama Charan at pages 379-381 to the same effect. Prom these, as well as from the fact that "there is no maintenance for a wife married in the muta form nor is a habitation to be assigned to her"--Tahir-ul-Ahham (Shama Charan, page 377),--it is clear that the result of a muta marriage is to place the person of the wife, without any restriction in any sense of the term, at the disposal of the husband for the term agreed upon, the sole consideration being the dower stipulated between the parties. Her children are entitled to inherit, but unless there is some special contract with this object, the husband and the wife [284] cannot inherit inter se. No doubt Rule 6 declares that, under this form of marriage, the ordinary divorce cannot be effected, inasmuch as the marriage is dissolved on the expiration of the period agreed upon; but it is not difficult to ascertain the reason for this. Unless there be some special agreement for the protection of the wife, she is no burden on the husband; she is under an obligation to be at his will and pleasure, and he is not in return bound to contribute to her maintenance or even to provide her with a place of habitation, and if a reference be made to the circumstances under which this form of marriage was created by Mahomet himself, it was intended to legalize sexual intercourse for any time agreed on by the parties concerned. It was probably for this reason thought unnecessary to extend to it even the easy form of divorce prescribed for dissolution of a permanent marriage. A dissolution of a muta marriage by efflux of time is, however, subject to this limitation. It is stated on the authority of the Tahir-ul-Ahkam (see Shama Charan, page 380, note) that, although "there is no divorce in the muta or temporary marriage, still separation (bain) would take place upon the term being given away to the wife, or upon the ex piration thereof." So also, the Sharaya-ul-Islam declares that, "if the husband were to make the woman a gift of the term before coition, he would be liable for half the dower, and if coition should have taken place, she is entitled to the whole dower on condition of her keeping the term, and if she has prevented him, he is entitled to deduct a proportionate part of the dower." Mr. Baillie's translation of this passage, page 41, is not altogether accurate, and has been in some respects corrected ; The passage is also reproduced in Shama Charan, page 381, note. I not her words, so far as we understand the authorities, the conditions of a muta marriage are these: A dower and a period for cohabitation are mutually agreed upon; the dower being fixed, the woman is at her husband's disposal for the term agreed on. If the marriage is not con-summated, the woman is nevertheless entitled to half the dower, as it were by way of damages; but if the marriage is consummated, she is entitled to the full dower, whether the parties continue to cohabit for the stipulated period or not, provided that, if cohabitation ceases through any fault on the part of the woman, the husband is entitled to make a proportionate deduction from the amount of the dower. But the husband, having paid or agreed to pay the dower, is not bound to cohabit with the wife for the stipulated term or for any longer term than he thinks fit. He may release the woman from her part of the eontract at any time, though his liability for the dower will remain. On these authorities it has been held by the lower Courts, and rightly held, that, although the ordinary law of divorce does not exist in respect of marriages by the muta form, and they are dissolved ipso facto by the expiry of the term for which they may have been contracted, still there is another way of terminating the marriage by the giving away of the un-expired portion of the term for which the marriage was contracted.

3. It has, however, been found by the District Judge, and this has been much pressed upon us by Mr. Amir Ali, who appeared for the defendant-respondent, the lady, that the act of the husband in giving away the unexpired term does not operate as a dissolution of the marriage except with the consent of the woman. We can find no valid authority for this contention. The Mahomedan law amongst Shias regards a muta wife as under an obligation to her husband to be at all times prepared to place her person at his disposal whenever required during the period for which the marriage may have been contracted; and without entering into particulars of a very disgusting nature, it is only necessary to state that even in this respect she is not regarded as having an equal status with a permanently married wife. In the matter of the obligation, the Mahomedan law regards persons in that position as debtors, and we have been referred, in the consideration of the question now before us, to the law in respect of debts and their cancellation. Baillie (page 203) states : "The donation of a debt, or what rests on, the obligation of another, is not valid to any other than the debtor or person by whom it is due, according to the most approved doctrine, by reason of the condition already mentioned, that it requires possession to complete it, whereas, if made to the debtor himself, it is quite valid and operates as a release of the debt--a release not requiring acceptance, according to the most approved opinion." Shama Charan (page 26) on the authority of the Fatawa dlamgiri, Vol. IV, pp.535, 536, declares that "the gift of a debt to the debtor is a release, and it is lawful both by analogy and on a liberal construction of law" ; and further, on the authority of the Hedayah and Kifayah, that "the gift of a debt, or release of it to the debtor, is complete without his acceptance, though it is reversed by his rejection." As opposed to this, Mr. Amir Ali has referred us to two passages from the Mabsoot and Jami-ul-Fiquah which seem to require the consent of a debtor to the cancellation of a debt. The Mabsoot no doubt is a work of considerable authority, but it is apparently little known in India, and having regard to this fact, we are not prepared on this contradiction to doubt the correctness of the Sharaya-ul-Islam as a binding authority amongst Shiahs in India, The passages quoted are isolated passages, and without reference to the context, which has not been laid before us, we should not be disposed to act upon them under any circumstances; but having regard. to the fact that they are directly opposed to the authorities invariably accepted among Shiahs in India, and the fact that the Mabsoot is so little known and recognized that only one copy of this work has been obtained, and that with great difficulty, for the purposes of this appeal. It is not improb-able that the parties to this suit were not cognizant of the existence of the Mabsoot and of the Jami-ul-Figuah, or at all events that they were not aware of the passages quoted so as to make them operate in regard to any transaction between them in preference to the usually accepted authorities.

4. Mr. Amir Ali further contends that, even if we were to hold that under the Mahomedan law the consent of the woman is unnecessary, we are bound under the rules of justice, equity, and good conscience which we are required to administer, to modify the strict law in this respect, and as an authority for this, he refers us to the remarks of their Lordships of the Judicial Committee of the Privy Council in the case of Moonshee Buzloor Ruheem v. Shumsoonnissa Begum 11 M.I.A. 551 (615).

5. The case before us is one to which the observations of their Lordships cannot properly apply. If we were entitled to consider whether in this or in other customs prevalent in this country the particular law of a section of the community was "in plain conflict with the requirements of a more advanced or civilised society," as now pressed on us by Mr. Amir Ali, we might in many cases find it difficult to recognize customs regarding which we are by law required to administer local law (see Act VI of 1871, Section 24) as being consonant with what in a European country, where life is passed under entirely different conditions, is considered to be in accordance with the requirements of our society. The illustration given by their Lordships of the Privy Council seems to indicate that the exceptional case contemplated was one of inhumanity, amounting to barbarity, and they did not contemplate the extensions of any of the requirements of more advanced western society.

6. In the case before us we should not therefore be justified in relaxing the Mahomedan law. The rules of that law are clearly defined in respect to muta marriages, and if parties, nevertheless, think proper to contract themselves or to allow their minor relatives to be contracted by this form of marriage, we think that they are not entitled to any special relief not contemplated by that law to avoid the effect of the dissolution of that marriage by the lawful act of the husband. So far, therefore, we agree with the lower Courts in finding that the marriage was dissolved by the husband in giving up the unexpired period agreed upon in the contract of marriage. But we do not agree with the District Judge that the consent of the woman was necessary to complete the termination of that marriage.

7. An objection has been raised on behalf of the defendant respondent that, inasmuch as the Courts have found against the plaintiff in respect of the statement made by him regarding the amount of the dower and the period for which the muta marriage was contracted, the plaintiff's case should be dismissed. In respect of the amount of the dower, we would observe that it was not what is known in the Mahomedan law as "prompt," and that, therefore, any dispute, regarding the amount of that dower or the payment of it in the present case, would not affect the question connected with the dissolution of the marriage. It would be open to the woman, after such dissolution, to recover any amount of the dower, which might remain unpaid from the husband in the same manner as any other debt due from him. Next in respect to the term agreed upon and given up. No doubt, both the Courts have found, and, this being a finding of fact, we cannot question it on second appeal, that the term of one month and a half stated by the plaintiff was not what was agreed upon between the parties, and they have not thought it necessary to determine what that term was. But they have found that "whatever that term may have been, the unexpired portion of it was given up by the husband. Whether he gave this up, as he states in his plaint, within a very short time after the marriage was contracted, has not been found, probably because what subsequently occurred rendered this immaterial. It seems that more than two years after the marriage was contracted, and while the proceedings for maintenance instituted by the wife were pending before the Magistrate, that is to say, long after the expiry of the period of one month and a half which the plaintiff still contends was the period agreed upon, the plaintiff as a matter of precaution (so he states) again in a public and unmistakeable manner gave up to the lady whatever might be the unexpired period of the marriage. We understand from this, that, without admitting that his own statement of the term agreed upon was incorrect, he intended to give and did actually give to the defendant whatever under any circumstances might be the period still remaining of the term agreed upon, and thus intimated in an unmistakeable manner to his wife his determination to dissolve the marriage, so far as lay in his power, by having recourse to this form of proceeding. We cannot but regard this as a complete surrender of whatever period might still be unexpired, and therefore sufficient to complete the dissolution of the marriage and the discharge of the woman from any obligation depending thereon. So far, therefore, in the case before us, we think that the plaintiff is entitled to a declaration that the defendant ceased to be his muta wife on the 20th of February 1882.

8. We were at one time in doubt whether, having regard to the decision of the Division Bench in the case of In the matter of Luddun Sahiba 8 C. 736 in the exercise of its criminal jurisdiction in respect to the proceedings for maintenance instituted by the defendant, we are not bound to refer this case to a Full Bench in consequence of a different opinion entertained by us. We think, however, that this is unnecessary, inasmuch as we learn from the judgment in that case that "no authority" was shown to the learned Judges "in support of the contention that the effect of giving up the rest of the period is to put an end to the relationship of husband and wife." It has been already stated that there is authority for this contention, and we, therefore, in view of that authority, do not feel embarrassed by the judgment of the other Division Bench of this Court. If that authority had been laid before the learned Judges, it is not improbable that they would have taken the view that has been already expressed as our opinion. We may refer in support of the view taken by us to the authority of the Sharaya-ul-Islam and Tahir-ul-Ahkam as reproduced by Mr. Baillie and Baboo Shama Charan Sircar in the passages quoted, as well as to the Sharah-i-Looma, a work of undoubted authority which is still more clear on this point. A copy of this work has been put in evidence, but although it has been quoted by the learned Counsel for the appellant, we have not thought it necessary to refer to it except in corroboration of the better known authorities of the Sharaya-ul-Islam and Tahir-ul-Ahkam.

9. It is only necessary in passing to observe that the allegation of the defendant in her written statement that there was a special contract with the plaintiff in regard to her position and maintenance has not been raised before us in the argument addressed by the learned Counsel, and was apparently abandoned in the lower Courts.

10. Having found that the relationship of husband and wife no longer exists between the parties, it remains for us to consider the effect of our finding on the proceedings before the Magistrate. The plaintiff asks for an injunction to restrain the Magistrate from enforcing the order for maintenance. We are of opinion that we cannot pass such an order. The plaintiff will be at liberty to satisfy the Magistrate that, by an order of this Court in its civil jurisdiction, it has been declared that no relationship exists between him and the defendant, and he can ask the Magistrate on the authority of the cases of Abdur Bohoman v. Sakhina 5 C. 558, and Abdul Ali Ismailji v. Husenbi 7 B. 180, to abstain from giving any further effect to his order for maintenance. The decree of the lower Appellate Court will accordingly be set aside, and the plaintiff will receive his costs in this Court and in the lower Courts.