Calcutta High Court
Mangila Bibi vs Noor Hossain And Another on 13 March, 1991
Equivalent citations: AIR1992CAL92, AIR 1992 CALCUTTA 92, (1991) 2 CAL HN 30, (1991) MATLR 409, (1991) 2 CURCC 731
ORDER
1. Stripped of unnecessary detail the petitioner Monjila Bibi was admittedly married with the opposite party No. 1 Noor Hossain on the 6th March, 1986, according to Muslim Rights when a Kabinnama was executed. She contended that after the marriage she came to know that the said opposite party was not a medical graduate as represented before the marriage and further, she was ill-treated at her husband's place and ultimately driven away. In this situation, she dissolved the marriage by virtue of the authority delegated to her by her husband as recorded in the Kabinnama and executed a divorce deed before the Muslim Marriage Registrar and Kazi on the 27th February, 1988. The divorce was communicated to the said opposite party but as he did not pay any maintenance and dower and other properties given to her at the time of marriage as noted in the Kabinnama, she made an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, before a competent Magistrate for appropriate relief.
2. This application was sought to be resisted on behalf of the said opposite party mainly, on the ground that the petitioner was not a divorced woman as there was never any delegation of power to give talak. He also contended that even if, there was any such delegation of power to give talak, it could be exercised only in specified contingencies and since no such contingency had taken place, the petitioner could not lawfully repudiate herself. He also no doubt denied the allegation of false representation said to have been made by him before the marriage as well as the allegation of ill-treatment. He has also taken a plea that certain entries in the Kabinnama were made against his will and some others were writtep subsequently without his knowledge.
3. The learned Magistrate has found on evidence that the petitioner had power to dissolve the marriage but such power could be exercised by her only when any of the conditions specified in the agreement was violated by her husband. He has further, held that since there was no such violation she could not validly give a talak and accordingly the marriage was still subsisting and so the application made by her as a divorced woman could not be sustained. Another ground which weighed with the learned Magistrate in dismissing the application was that in any event it was premature because the talak, even if given, was not communicated to the said opposite party and thus he had no opportunity to make payment of dower etc., or to deliver the goods said to have been given to her at the time of marriage. The learned Magistrate has overruled the plea of the said opposite party that certain entries in the kabinnama were made against his will or without his knowledge and also disbelieved the petitioner's case regarding the alleged ill-treatment to her.
4. Mr. Habibullah appearing in support of the rule has assailed the finding of the learned Magistrate that the power to dissolve the marriage could be exercised by the petitioner only when any of the conditions specified in the agreement was violated by her husband and it was pointed out that the Kabinnama tendered in evidence as Ext. 1 did not stipulate that such power could be exercised only on the happening of any contingency. The finding of the learned Magistrate that the evidence did not reveal any ground for giving talak has not been challenged and indeed, it being a pure question of fact could not be challenged in revision. The Kabinnama Ext. 1 apparently delegates an unrestricted power to the petitioner to give talak and, therefore, the principal question which calls for adjudication is whether she had an absolute authority to dissolve the marriage at her will or whether such power could be exercised by her only in certain circumstances. Mr. Habibullah has drawn inspiration from Article 314 of Mulla's Mahomedan Law to argue that the power to give divorce which primarily belongs to the husband may be delegated to his wife either absolutely or conditionally. This argument is further reinforced by the observation of Ameer Ali in his Mahommedan Law (5th Edition) Volume 11, pages 495-497 to the effect that tafwiz -- which means delegation of option by the husband to his wife conferring on her the power of the divorcing herself -- is of three kinds including one called Mashiet which leaves the exercise of power absolutely to the pleasure or will of the party to whom the power is delegated. Thus it is abundantly clear from the observation made by these erudite authors that the delegation of the power to divorce can be made either conditionally or without any condition at all. This view also finds support from a Bench decision of this Court is Saimiddin v. Latifannessa Bibi, (1919) ILR 46 Cal 141 : (AIR 1919 Cal 631). In this ease their Lordships after quoting extensively from texts on Muslim Law have pointed out that the delegation may be unconditional and reference was made to certain passages of various authorities, particularly in Fataya-i-Alamgiri, Volume I, p. 562, Cal. Ed., where-under if a man said to his wife that her business was in her hand when or whenever she desired, it was open to her to divorce herself at once at the same place or outside it at any time she chose. Thus there is least difficulty in holding that there is no authority which prohibits the wife to exercise the power of divorce delegated to her by her husband save in certain circumstances.
5. Mr. Roy, the learned counsel for the opposite party has, however, heavily relied upon the decision of the Supreme Court in Mst. Zohara Khatoon v. Mohd. Ibrahim, in which it was observed that under the Mahomedan Law, there are three distinct modes for dissolving a marriage one of which was by viture of an agreement either before or after the marriage by which it was provided that the wife should be at liberty to divorce herself in specified contingencies provided such contingencies were of a reasonable nature and were agreed to by the husband. In that case, Zohra Khatoon obtained a decree for dissolution of marriage under the Dissolution of Muslim Marriages Act, on ground of cruelty and wilful neglect and subsequently made an application before a competent Magistrate under S. 125 of the Code of Criminal Procedure, 1973 contending that although divorced, she could still claim maintenance, looking to the enlarge meaning of "wife" as given in Cl. (b) of the Explanation to S. 125(1) of the Code. The ex-husband Mohd. Ibrahim took the plea that the applicant Zohara Khatoon was not entitled to claim maintenance as she had ceased to be his wife. The Magistrate found against the ex-husband and a suitable order was made in favour of Zohara Khatoon, which was also upheld by the Sessions Judge in revision. Mohd. Ibrahim thereafter moved the High Court invoking its inherent jurisdiction under S. 482, Code of Criminal Procedure which held that Cl. (b) of the Explanation to S. 125(1) of the Code of Criminal Procedure, 1973 would apply only if the divorce proceed ed from the husband and not in a case where the dissolution of marriage was brought about by the wife under the Dissolution of Muslim Marriage Act, and as such Zohara Khatoon was not entitled to get any maintenance for herself. There was an appeal to the Supreme Court which was thus seized with the question whether Cl. (b) of the Explanation to S. 125(1), Code of Criminal Procedure would be attracted in a case where the marriage was dissolved at the instance of the wife under the said Act and not with the question whether a husband could delegate to his wife the power to divorce herself unconditionally or without the happening of any contingency. Therefore, this decision does not appeal to be an authority for the proposition that there cannot be any unconditional delegation of the power to divorce.
6. The learned Magistrate has taken the view that since the Kabinnama was executed by both the spouses, it was a bilateral agreement and relying upon certain observations made by Dr. Tahir Mammud in his renowned treatise on the Muslim Law of India (1980 Edition) at page 124, he was held that the law demands:--
(a) that the delegation must not be absolute;
(b) the wife should be authorised to pronounce talak only when any of the conditions specified in the agreement is violated by the husband and
(c) those conditions must be reasonable and must not be opposed to the policy of the Islamic Law.
It appears that the learned Author has also observed in the very next paragraph, that the aforesaid requirements do not apply where a husband unilaterally authorises a wife to divorce herself without an agreement with her in this regard. Thus it is not in inflexible rule of law that the delegation of power to divorce cannot be absolute but must be conditional and the issue will be determined upon the 'inding whether the delegation was made under a bilateral agreement or by the husband unilaterally. In the instant case, even though the Kabinnama Ext. 1 bears signature of both the spouses, it does not necessarily follow that the delegation of the power to give talak was made bilaterally. A reference to this document would show that in col. 16 thereof the groom of his own will bound himself with the condition that his wife Manjila Bibi would be in a position to give talak ex parte and at her will. Such a situation, even though contained in an instrument signed by both the spouses, cannot be regarded as a bilateral delegation of the power to give talak. There might be bilateral delegation if it was recorded that both the spouses agreed that the wife would have the power to repudiate herself and in such a case it might be said, on the basis of the observation made by Dr. Mahmood, that the wife would not have unfettered liberty to divorce herself. In the case on hand, however, the inescapable conclusion seems to be that the opposite party Noor Hossain the husband had unilaterally delegated to the petitioner a power to divorce unconditionally and since it is not prohibited by the personal law of the parties, as already found, it was quite open to her to divorce herself at her will as she in fact, did. In other words, the petitioner was very much a divorced woman and the finding of the learned Magistrate that the marriage was still subsisting cannot be upheld.
7. The other finding of the learned Magistrate that the application made by the petitioner was in any case premature because the talak, even if given, was not communicated to the said opposite party and so he had no opportunity to make payment of dower etc. is also liable to be struck down, as it is found that Saiyad Noor Alia Khandaker P.W. 2 who was assisting the Marriage Registrar and Kazi, Saiyad Golam Ahiya Khandaker P.W. 1 in the dissolution of marriage by the petitioner, has stated in his examination-in-chief that the opposite party was informed of the talak which was not challenged in his cross-examination. The learned Magistrate has apparently overlooked this unchallenged evidence regarding the communication of talak to the said opposite party and, therefore, his finding that the said opposite had no opportunity to make payment of dower etc., or for this reason the application made by the petitioner was premature cannot be sustained.
8. For the reasons stated above, the order of the learned Magistrate dismissing the application of the petitioner under S. 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is set aside and he is directed to determine, on the evidence already on record, the relief to which the petitioner may be entitled and dispose of the application in accordance with the provisions of law with utmost expedition.
The record be sent down immediately.
9. Order accordingly.