Allahabad High Court
Musammat Bismillah Begam vs Nur Mohammad on 8 July, 1921
Equivalent citations: 63IND. CAS.702
JUDGMENT
1. This appeal arises oat of a suit biought by the plaintiff-appellant, Musammat Bismillah, for a declaration that she had lawfully repudiated her marriage with her husband the defendant-respondent, Nur Muhammad, and that the decree, dated the 31st March 1916, obtained by the latter against her for restitution of conjugal rights was of no force. She alleged that she repudiated the marriage soon after the attainment of her puberty. The admitted fasts are that the marriage between the parties took place when the plaintiff appellant was a minor and the marriage was brought about under the guardianship of her mother. Sometime after the marriage Nur Muhammad, who himself was a minor at the time of marriage, sued for restitution of conjugal rights and obtained a decree on the 31st of March 1915. On the 27th of August 1917 the suit out of which this appeal has arisen was filed by Musammat Bismillah for the declaration mentioned above. At the time of the suit the age of her husband was 17. Several pleas were urged on behalf of the defence. The Court of first instance dismissed the claim, holding that the plaintiff was still a minor, that there bad been a valid retirement between her and her husband and that the repudiation, if any, was invalid. On appeal the learned Judge affirmed the decree of the first Court on the Bole ground that the repudiation by Musammat Bismillah was not made immediately on attaining her puberty but within two or three months of it. The parties, being Sunnis. are bound by the Hanafi Law and according to the learned Judge under that law the repudiation ought to have been made immediately on attaining puberty.
2. Musammat Bismillah came up in second appeal to this Court and her appeal same up for hearing before a learned Judge of this Court It was represented to him that the dispute between the parties raised an important point of law and that the appeal should be referred to a Bench of two Judges. The learned Judge acceded to the request of the learned Counsel for the parties and has referred the case to a Bench of two Judges.
3. We do not at present express any opinion upon the merits of the case or the accuracy of the finding of the learned Judge of the lower Appellate Court. We think it advisable in the interests of justice to have a finding on the following point, namely:
When did Musammat Bismillah first come to know that she had a right of repudiating her marriage?
4. The lower Appellate Court will receive evidence upon this issue and return a finding as soon as possible.
5. The learned Judge will also record a finding on the third issue, namely, whether the marriage of the parties has been consumated, upon which he omitted to record a finding in his judgment under appeal The lower Court will return its findings at an early date. On receipt thereof the usual ten days will be allowed for filing objections.
JUDGMENT
6. On the issues remitted the Court below has come to a definite finding that the marriage has not been consumated, but its finding on the other issue, namely, when did Musammat Bismillah first come to know that she had a right of repudiating her marriage, is by no means definite or clear. The story told by the girl and her uncle is that a Pleader, Shaikh Ahmed Hussain, was consulted and when he gave his opinion, her uncle Abdulla informed the girl and she at once repudiated the marriage. The uncle Abdulla and the girl herself put this at a period of some three years before they gave their evidence. Ahmed Husain, on the other hand, put it at some 31 years, but he was by no means, definite and the Court came to the conclusion that it must have been sometime between November 1916 and January 1917. The repudiation was made on the 7th of March 1917. The lower Court has assarmi that the appellant was informed of the opinion of Shaikh Ahmed Husain at the very time that it was given. Id is very difficult, if not impossible, to fix the exact time when the plaintiff was informed of her right of repudiation, but we may take it that the fast that a Pleader was consulted, shows that her intention was to repudiate and, I think, we may accept it as clear that the girl repudiated the marriage without any unreasonable delay. The lower Appellate Court at first found that the repudiation took plate about two or three months after the girl had arrived at the age of puberty. The issue was remitted, because this Bench was of opinion that the rule laid down by Imam Muhammad was the more reasonable and equitable rule to be applied in India, namely, that a woman's right of option is prolonged until she is acquainted with the fact that she has such a right. In other words, that if she does not know that she has aright of rescinding the marriage, she will have the power to do so when she is aware of it. We think in the circumstances that the plaintiff appellant repudiated the marriage without any unreasonable delay after she became aware of her right to do so. In these circumstances we think that the plaintiff's suit ought to have been decreed. We, therefore, allow the appeal, set aside the decrees of the Courts below and decree the declaration asked for by the plaintiff that she has lawfully repudiated her marriage with her husband, the defendant-respondent Nnr Muhammad, and that the decree, dated 31st of March 1915, obtained by the latter against her for restitution of conjugal rights is now of no force. The plaintiff will have her costs in all Courts.