LEX/HCDK/0060/1955

Equivalent/Neutral Citation: 7 DLR (1955) 451

DHAKA HIGH COURT

Appeal from Appellate Decree Nos. 214 and 215 of 1850
Decided On: 19.06.1955
Abdul Sukur Vs. Machuma Khatun and Ors.
Hon'ble Judges/Coram:
Ispahani, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Syed A.N.M. Nasiruddin for K. Hussain
For Respondents/Defendant: Khondkar Muhammmad Hasan and Ahmad Sobau
Ispahani, J.
1 . These appeals have been filed by one Abdul Sukkur, who is the husband of
respondent Sm. Machuma Khatun.
2. The respondent was married to the appellant on 14.7.40 and they have three issues
of marriage. The respondent Machuma Khatun filed Other Suit No. 13 of 1946 against
the husband for dissolution of their marriage on the ground of habitual ill-treatment and
non-payment of dower and maintenance. Her case was that shortly after their marriage,
her husband began to beat her and ultimately drove her out of her house in 1943, after
assaulting her. There was a reconciliation between the parties and after the husband
execute an Ekrarnama on 3.7.43 in favour of his father-in-law, the wife returned to her
husband's house and continued to live with him. According to the wife, her husband
began again to ill-treat her and drove her out of the house a second time on 9.8.45
without paying her the dower money in spile of demands. Finding herself in difficulties
she exercised the power of divorce delegated to her by her husband by the kabinnama
and on 12.1.46 she executed a Talaknama. Abdul Sukr kur filed Other Suit No. 35 of
1946 and his defence in the wife's suit is his case in his own suit. His case is that he
never ill-treated or assaulted her and that they were on the best of terms having three
children, the last of whom was born on 9.8.45. He alleged that during his absence in
Calcutta, his father in-law took away his wife on 17.1.46 and he is not on good terms
with his father-in-law. He also mentioned other points which are not relevant for the
purposes of these appeals.
3 . The learned Munsif, second Court, Sadar, Chittagong, by his judgment and decree
dated the 15th February, 1947, dismissed Other Suit No. 13 of 1946 filed by Machuma
Khatun and decreed other Suit No. 35 of 1946 filed by the husband Abdul Sukkur. He
ordered that Machuma Khatun, defendant No. 1 in the husband's suit, should go back to
the plaintiff at his house within a week from that date. He also directed defendants 2 to
4 to restore defendant No. 1 Machuma Khatun to the plaintiff Abdul Sukkur and not to
restrain her from going to her husband. From that decision, Other Appeal No. 55 of
1947 was filed by Machuma Khatun against decision in Other Suit No. 13 of 1946. Other
Appeal No. 54 of 1947 was filed by Machuma Khatun and others against the decision in
Other Suit No. 35 of 1946. The learned Subordinate Judge, Chittagong, disposed of the
appeals on the 31st day of December, 1948. The Other Appeal No. 55 of 1947 was

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decreed in modified form on contest against the respondent Abdul Sukkur. The prayer
for dissolution of marriage on the ground of habitual illtreatment and non-payment of
dower money was refused but it was ordered that Machuma Khatun was not compelled
to go to her husband's house because her prompt dower money had not been paid and
as respondent Abdul Sukkur had taken a second wife. The learned Appellate Court,
however, ordered that if prompt dower money was paid and Machuma Khatun was
prevailed upon to reconcile herself to the position, created by Abdul Sukkur by taking a
second wife, then on the necessary prayer being made in a proper proceeding, a decree
for restitution of conjugal right might be passed. Other Appeal No. 54 of 1947, which
was against the decision in Other Suit No. 35 of 1946 was also disposed of on contest
on the same terms. The two appeals were thus allowed in modified form. Second
Appeal No. 214 of 1950 has been filed by the husband from the decision in Other
Appeal No. 54 of 1947 and Second Appeal No. 215 of 1950 has been filed by the
husband against the decision in Other Appeal No. 55 of 1947.
4. Mr. Syed A.N.M. Nasiruddin has appeared on behalf of the appellant and Mr. Ahmed
Sobhan on behalf of the respondents.
5 . The facts in these appeals are not in dispute and it is curious that both the parties
find themselves aggrieved by the order passed by the learned appellate Court as set out
above. The wife has also filed cross objections in both these appeals. Both the Courts
below have held that the wife had not succeeded in proving habitual ill-treatment by her
husband after the reconciliation in 1943. Both the Courts did not decree dissolution of
marriage as prayed for by her. The husband had delegated to her the power to divorce
on the happening of certain contingencies. At the appellate stage a petition was filed on
behalf of Machuma Khatun on 9.9.48, wherein it was stated that Abdul Sukkur had
taken another wife who was then living with him. The reception of this petition was not
objected to by the husband and presumably the lower appellate Court accepted this
additional evidence. There is a stipulation in the Kabinnama Ext. 2 that if the husband
takes another wife, then that would give a right to Machuma Khatun to divorce herself
from her husband. The lower appellate Court, therefore, was of the opinion that the
case of Abdul Sukkur should fail because he had not admittedly paid Rs. 240/- as
prompt dower money and he had taken a second wife which is against the terms of the
Kabinnama, Ext. 2. He observed that the failure of the case of the husband Abdul
Sukkur was the success for the wife Machuma Khatun. He, accordingly, passed the order
stated above by which both the parties are aggrieved.
6 . Mr. Nasiruddin has referred to Art. 293 of Mulla's Principles Mahomedan Law, 13th
edition which is as follows;
"The wife may refuse to live with her husband and admit him to sexual
intercourse so long as the prompt dower is not paid. If the husband sues her
for restitution of conjugal rights before sexual intercourse takes place, non
payment of the dower is a complete defence to the suit, and the suit will be
dismissed. If the suit is brought after sexual intercourse has taken place with
her free consent the proper decree to pass is not a decree of dismissal, but a
decree for restitution conditional on payment of prompt dower." The learned
appellate Court has ordered that Machuma Khatun would not be compelled to
go to her husband's house as her prompt dower money has not been paid but if
this prompt dower money is paid and she is prevailed upon to reconcile herself
to the position created by Abdul Sukkur by taking a second wife, then on the
necessary prayer being made in a proper proceeding, a decree for restitution of
conjugal right might be passed. His grievance is that his suit for restitution of

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 conjugal rights should not have been dismissed but should have been decreed
conditionally on payment of the prompt dower and the observations made by
the lower appellate Court in this regard is unnecessary and confusing. So far as
the suit filed by the wife is concerned, he rightly makes no grivance of the
same.
7 . Mr. Ahmed Sobhan in his turn has also attacked the order passed by the lower
appellate Court and has submitted that even on the facts found his client, namely, the
wife is entitled to a decree for dissolution of marriage and the directions given by the
learned Judge are entirely unnecessary. It has been found by both the lower Courts that
the husband did not habitually maltreat his wife. It has been found by both the lower
Courts that the husband has not paid prompt dower money to his wife in spite of
demands. The wife filed the suit for dissolution of marriage on the ground that not only
was she habitually maltreated by her husband but also her prompt dower and
maintenance had not been paid to her. Even on the facts found if her case fails on the
question of habitual maltreatment, there is the other side of the question, namely, the
payment of prompt dower to the wife. Mr. Sobhan has contended that kabinnama, Ext.
2, not only provides for a divorce by the wife if she is ill-treated but also she can
exercise that right on non-payment of dower. Reference has been made to Hamidolla V.
Faizunnissa, reported in I.L.R. 8 Calcutta, 327. In that case a kabinnama contained
many contingencies on the happening of which the wife had the right to divorce her
husband. One of the terms was that she could exercise that right if her husband failed
to pay dower money on demand. At page 328 their lordships observed as follow:
"We are aware of no reason why an agreement entered into before marriage
between parties able to contract under which the wife consented to marry on
condition that, under certain specified contingencies, all of a reasonable nature,
her future husband should permit her to divorce herself under the form
prescribed by Muhomedan Law, should not be carried out. We may observe too
that the conditions under which it is stipulated that this power should be
exercised by the wife are certainly not opposed to the Muhomedan law on the
subject."
8. It is cleat, therefore, that the wife in this case could exercise her right of divorce if
dower was not paid to her by her husband.
9 . The other question canvassed before me, according to Mr. Nasiruddin, is that the
lower appellate Court should not have relied on the additional evidence adduced at the
appellate stage regarding the second marriage by Abdul Sukkur. His contention is that
the second marriage admittedly look place during the pendency of the proceedings and
after the wife is alleged to have exercised her right of divorce against her husband. He
has complained that the observations made by the lower appellate Court, relying on the
additional evidence, arc not justified. Mr. Ahmed Sobhan, on the other hand, has tried
to uphold the view taken by the lower appellate Court and his argument is that the
question of the second marriage is also a valid ground for the wife to exercise her right
of divorce as mentioned in the kabiunama Ext. 2. Mr. Sobhan has referred to Sainuddiu
V. Latifannessa Bibi, reported in I.L.R. 46 Calcutta, 141. In that case, the wife was
given the right of divorce if the husband among other conditions took a second wife. He
had taken a second wife after which he filed a suit for restitution of conjugal rights
against the first wife. Thereafter the first wife executed a tab knama divorcing her
husband in the exercise of the delegated power of Talak. The suit was dismissed by the
trial Court and the order of dismissal was affirmed in appeal and the Hon'ble High Court
upheld that decision holding that the wife had exercised the power of divorce rightly

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and had put an end to the marital relation between her and her husband. It will,
therefore, be seen that the facts in the ruling cited are different; because the second
wife was taking during the subsistence of the first marriage, while in the present case,
according to Machuma Khalun's case, she exercised the right of divorce before the
husband married a second wife. It seems to me that the lower appellate Court should
not have attached any importance to the additional evidence adduced. It may be
mentioned that if the order of the appellate Court be given effect too, that is to say, If
the husband pays the dower money and Machuma Khatun returns to her husband's
house, she will find herself in the difficult position of living with a second wife, which
would' be a ground for her to divorce her husband. After a careful consideration of the
arguments advanced by the learned advocates, I am unable to uphold the decision of
both the lower Courts.
10. The result, therefore, is that these appeals are dismissed and the cross-objections
are allowed, and the judgments and decrees of both lower Courts is are set aside and
Other Suit No. 13 of 1946 filed by Machuma Khalun is decreed and Other Suit No. 35 of
1946 filed by Abdul Sukkur is dismissed. It is declared that the marriage of Machuma
Khatun with Abdul Sukkur is dissolved by reason of Machuma Khatun's exercising her
right of divorce delegated to her by her husband. Each party will bear his own costs
throughout.
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