P L D 1952 Dacca 179 (PLP)

The plaintiff in his evidence stated : "I lave not ill-treated her. We were in love deeply, Jesaraddi is the manager of our family. My wife is of good character. I do not doubt the character of my wife. I came to learn from my younger brother‑in‑law that my wife was at the time in the house of Insan. I did not know Insan before. I found my wife in the house of Insan. I wanted to take her. She was ready to come but Insan did not allow that and rather came to assault me. I would not file the petition if I knew that there was imputation against her character. I am really sorry for tire statement that crept into the petition of complaint and withdraw it. I heard the villagers say that I had divorced and that my wife would be Nika‑married with Insan Ali. The petition of complaint was drafted by Hridoy Babu. I was not present at the time of drafting. My brother was present. My wife did not live in adultery with Insan Ali". Plaintiff's brother Jesaraddi stated that the petition of complaint was drafted in his presence and under his instruc tions and that it was not read over to his brother. The learned Munsif has held that husband's neglect to provide for the maintenance of the wife for two years is a very good ground to refuse a decree for restitution of conjugal rights, that Talaknama is a fabricated document and the story of Talak is a myth and the marriage is still subsisting and that the plaintiff has validly and bona‑fide retracted the charge made by the plaintiff against the defendant No. 1 in the criminal case and in the result the suit was dismissed on the ground of plaintiff's failure to provide for the maintenance of his wife for two years though there was no such pleading in the written statement nor there was any issue to that effect. On appeal by the plaintiff, the learned Subordinate Judge of Jessore, has reversed the decision of the Trial Court and decreed the plaintiff's suit holding that the Talaknama is not a genuine document and the story of Talak is false and the defendant No. 1 cannot resist the suit on the ground of dissolu tion of marriage, that the plaintiff had grounds for suspecting that there was something in the air since currency was given to the story that in filing the criminal case the defendant No.1 had been divorced and the underlying motive of the plaintiff was to get his wife away from the influence of persons who intended to give her in marriage for the second time and that the plaintiff expressed regret and bona‑fide retracted and so restitution of conjugal rights could not be refused on the ground of" Li an", that the story of ill‑treatment was an after‑thought and that no defence was founded on the ground of failure to provide for maintenance and no issue was raised and a wife is not entitled to claim separate maintenance if she refuses without grounds to live with her husband and in this case the wife was determined to live apart from her husband and so was not entitled to demand for maintenance and in fact no demand was made and there was no disagreement up to Aswin, 1348 B. S. and the suit had been filed on the 1st Aswin, 1350 B. S. and so the learned Munsif was not right to dismiss the suit on the ground of failure to provide for maintenance. The learned Advocate for the appellant raises two points before me, firstly, that the plaintiff's suit for restitution should have been dismissed on the ground of La'an and secondly, the lower appellate Court should lave dismissed the suit on the ground that the plaintiff has failed to maintain the wife for two years. I shall decide the first question whether the plaintiff's suit is barred on the ground of La'an or Li'an. The question is whe ther in the circumstances of this case the wife can resist the claim for restitution of conjugal right. A li'an or la'an or imprecation is "testimony confirmed by oath and accompanied with imprecation". Under the pure Muhammadan Law, if a husband charges his wife with adultery, on the application of the wire, the husband may be called upon by the Kazi either to retract the charge or to confirm it swearing four times by God that she is guilty of adultery and imprecating upon him self the course of God, if he accuses her falsely. If the hus band admits that he accused her falsely, he is liable to punish ment for slander, which was 80 stripes according to Muhammadan Law, if on the other hand the husband persists in the accusation and makes the necessary oath and imprecation he cannot be punished for slander and the wife is then called upon either to admit the guilt or swear in the same manner that she is innocent with an imprecation upon herself if she be guilty. If the wife admits the charge, she is to suffer capital punishment but on taking the oath and making the imprecation she escapes the punishment, and on the husband and the wife both making the li'an, the Kazi dissolves the marriage between the parties Vide Bailee Chapter 10, page 335 ; Ameer Ali's Muhammadan Law, 5th Edition, Vol. II, P. 530 ; Muhammad Yusuf's Muhammadan Law, Vol. II, 1898 Edition, P. 352 ; and Wilson's Anglo Muhammadan Law, 4th Edition, para

76. Under the Muhammadan Law a charge of adultery by the husband against the wife can be established only by the direct testimony of four witnesses to the fact and in order to obviate the evils which would necessarily result from a denial of all redress to the injured husband, in these instances where he is morally convinced of the guilt of the wife but has no direct testimony to establish it or when he alone is cognizant of the fact, the law has prescribed the proceeding by li'an. Vide Ameer Ali's Muhammadan Law, Vol. II, P. 525, 5th Edition. These are mere rules of evidence and it is not possible at the present time to follow the strict letter of the Musalman Law of Evidence and they have been superseded by the Evidence Act, and the special oaths by the provisions in the Oaths Act. Where either the husband or the wife has, without lawful ground, withdrawn from the society of the other, or neglected to perform the obligations imposed on him or her by law, or by the contact of the marriage, the Court may decree restitu tion of conjugal rights, and may put either of the parties on terms securing to the other the enjoyment of his or her legal right. Vide Tyabji's Muhammadan Law, 22nd Edition, P. 164 ; and Abdur Rahim's Muhammadan jurisprudence, page

334. In this case the wife wants to resist the claim of the husband for restitution of conjugal rights on the ground of li'an, that is, the husband made a false charge of adultery against, her in the criminal case against her father. The hus band refutes it by retraction. Now the Muhammadan Law relating to rules of evidence are no longer in force and the same have been superseded by the provisions in the Evidence Act. As has been observed by Banerji J. in Zafar Hussain v. Ummatur Rahman 1919 I L R 41 All. 278 p. 282‑3. "The Muhammadan Law of evidence being no longer in force and the ordinary Courts having taken of place of Kazis, these Courts are the authorities which should make a decree for divorce on being satisfied according to the ordinary rules of evidence that a false imputation was made by the husband and it is unnecessary to comply with the formalities of La'an. This is also the opinion of Mr. Ameer Ali and Sir Rowland Wilson, and this seems to be the legitimate inference to be drawn from the rules of Muhammadan Law on the subject." See also Mst. Fakhre Jahan Begum v. Muhammad Hamidullah Khan 1928 I L R 4 Luck 168, p. 177‑

9. It has been urged by the learned Advocate for the appellant that the plaintiff cannot get a decree for restitution of conjugal rights because he has made a charge of adultery against his wife and he persisted in when after the dismissal of the com plaint under section 203 of the Code of Criminal Procedure on the 5th June, 1943, the husband tried to revive it on that day but that prayer was rejected. It is argued, therefore, that the retraction was not bona‑fide. The learned Advocate for the appellant in support of his argument relies mainly on the case of Shamsunnesa Khatun v. Mir Abdul Mannaf (1939) 70 C. L. J. 289, while the learned Advocate for the respondent relies on Saju Bibi v. Muksed Molla (1940) 45 C. W. N. 122 both the decisions relate to suits for divorce by the wife against the husband. It is well established that a suit for restitution of conjugal rights now can be decreed or dismissed by a decree of the Court and the Court has to determine judicially whether a charge of adultery has or has not been justly made. It has also been held in accordance with the spirit of the Muham madan Law relating to li'an that the husband has the right to retract the charge he made, though by so doing he renders himself to punishment for slander vide Rahima Bibi v. Fazal 1926 I L R 48 All. 834, and on such retract ment of the accusation the wife's suit for divorce fails. The principle of retraction is obviously to give the husband a locus penitentiae. See Mst. Fakhre Jahan Begurr v. Muhammad Hamidullah Khan (Supra), and Shamsunnessa Khatun v. MirAbdul Mannaf (Supra). Ann unretracted accusation of this kind cannot but render conjugal affection impos sible, but if there is a bona‑fide retraction, the Court should not order dissolution of marriage. Saju Bibi v. Muksed Molla (Supra). It is also well settled that if the retraction is made after the close of the evidence, Rahima Bibi v. Fazil (Supra), or of the trial Ahmad v. Bai Fatima 1931 1 L R 55 Bom. 160, the wife is entitled to a decree for dissolution of marriage. In this case the admitted facts and findings are that the husband charged the wife with adultery in a criminal case against the wife's father and another but the case was dis missed for non‑prosecution as the husband was absent when the case was called on for hearing and on that date the husband wanted to revive the proceeding but failed. It is also found that the husband had grounds for suspecting that there was something in the air since currency was given to the story that the defendant No. 1 had been divorced and a fictitious Talaknama was ushered into assistance. On hearing that story of divorce, the husband wanted to get back the wife into his custody and he started the criminal case and his object was to have his wife restored to him. As has been pointed out by the learned Subordinate judge, the procedure adopted by the husband was an abuse of the process of the Court and the husband's conduct merits severe reproof but the fact remains that the motive of the husband was to get his wife away from the influence of person, who intended to give her in marriage elsewhere and the clear finding of the two Courts below are that the husband made amends in his evidence and expressed regret and so there was bona‑fide retraction and hence it operated as a stumbling block in the way of the wife to deny her society to the husband. In this view of the findings and the facts I have referred to at the beginning of my judgment, I am satisfied that the Courts below are right in holding that restitution of conjugal rights cannot be refused in this case on the ground of li'an. I shall now discuss the several cases cited at the bar on either side but all those cases were in suits by the wife against the husband for dissolution of marriage. The case of Saju Bibi v. Muksed Molla (Supra) cited by the respondent is a case by the wife for dissolution of marriage in which the wife averred that the husband in a criminal case against her brother and some other persons charged her with adultery. It was held in that case that the charge was baseless but the husband in his written statement in the suit for dissolution of marriage made it quite clear that the aspersion to wife's character was not true and Mukherjee J. held that it was a bona fide retraction and, therefore, the wife's suit for dissolu tion of marriage should be dismissed. In my opinion the principle laid down there applies to the present case though it was not a case of restitution of conjugal rights. The learned Advocate for the appellant cited at the bar several other decisions. The first one is Zafar Hussain v. Ummatur Rahman (Supra), In that case it has been laid down that, a Muhammadan wife is entitled to bring a suit for divorce and obtain a decree for dissolution of marriage on the ground that her husband had falsely charged her with adultery. In that case it was found as a fact that there had been no retraction by the husband of the false charge and so the wife's suit was decreed. In my opinion that decision does not apply to the present case. The second case cited on behalf of the appellant is the case of Rahima Bibi v. Fazil (Supra). That was a suit for dissolution of marriage by the wife where the wife claimed dissolution on the ground of her husband having accused her of committing adultery and in which a retraction made by the husband after the evidence of both parties had been closed, was not accepted. Mears C. J. in his judgment observed : "The defendant who throughout the whole proceeding has behaved badly chose to adopt a line which he knew to be false I am not prepared to express any opinion as to what the position would have been if the husband in the written state ment had behaved like an honest man and told the truth and made a full unequivocal retraction." Suleman J. who delivered a separate but concurring judgment did not disagree with that observation. That case in my opinion is clearly distinguish able in facts from the present case and is in no way against the respondent, because it has been decided on its peculiar facts, which are not present .in the case before me. The learned Advocate for the appellant places a great reliance on the case of Shamsunnessa Khatun v. Mir Abdul Mannaf (Supra). That was a suit for dissolution of marriage by the wife against the husband. If I may say so with great respect Akram J. rightly points out the principles in these words in that case; "That purpose behind the principle of retraction is to give the husband a locus penitentiae before the marriage is discharged. The object is .to re‑establish cordial relationship between husband and wife. The retraction, therefore, mutt be bona‑fide and not a mere device for defeating the suit." The learned Judge observes quoting the words in 3rd paragraph of the written statements of the husband "if it be proved by the just decision of the Court that the defendant brought the criminal cases against the plaintiff by making false accusations against her, the defendant withdraws all those accusations for adultery made in these written complaints against the plaintiff and the defendant retracts these accusations expressing heart‑felt regrets for them, imply that the retraction is dependant upon the finding of the Court that the charge is false; there is, thus, no admis sion by the defendant in his written statement that he has made the accusation falsely rendering himself liable to punish ment. Accordingly I find that the retraction in paragraph 3 of the written statement is not proper and unconditional." Then the learned judge holds that the retraction in paragraph 4 of the written statement. "Even if the accusation made against the plaintiff in the petition of complaint filed by the defendant are found to be true this defendant withdraws those charges unconditionally can be of no help to the defendant because if the accusation is true there is no cause of action for the suit." With respect I may say that the learned judge is right in his conclusion in this regard. The learned judge then observes at page 292: "The defendant, no doubt, in his evidence contra dicts these witnesses but having regard to the history of the case and the behaviour of the defendant in making repeated charges of misconduct against the Plaintiff, I am inclined to accept the evidence of the plaintiff's witnesses No. 2 and 4 in preference to the evidence of the defendant I, therefore, hold that the retracting is not honest and as such should he dis regarded. Unless the retraction is bona‑fide the suit cannot be dismissed". On these finding I respectfully agree, that the learned judge is right in his decision in giving the plaintiff wife a decree for dissolution of marriage. I am also of opinion that the decision is in no way against the plaintiff of the suit before me, and that decision is distinguishable. The learned Advocate for the appellant lays great stress on the observations of Akram J. at page 293 of the report : "The retraction in the deposition, cannot also be availed of because it was made after the commencement of the hearing of the suit Mst. Fakhre Jahan Begum v. Muhammad Hamiduliah Khan (Suvra)." I may state that it is an obiter dictum. Again if it be held that it was necessary to decide that point in order to determine that appeal, I am unable to agree with that general observation because the case cited in support of that proposition does not lay down any such principle. Moreover in the case of Mst. Fakhre Jahan Begum v. Muhammad Hamidullah Khan (Supra), their Lordships in a suit for dissolution of marriage by a Shia wife held that the retraction in the written statement was a bona‑fide one and it was given effect to and it has not been held anywhere in that case that a retraction made after commence ment of the suit was not available, to the husband. I unable therefore, to bold that the decision in Shamsunnessa Khatun's case is of any avail to the appellant. I may observe here that the last decision cited by the learned Advocate for the appellant, Kaloo v. Mst. Imaman A I R 1949 All. 445 is of no assistance to his client and it rather supports the respondent. I may observe here that the decision in Shamsunnessa's case has been dissented from in Kaloo v. Mst. Imaman (Supra). As I have already stated all these decisions arise in suits for dissolution of marriage by the wife and do not in any way apply to the facts of the present case. The learned Advocate for the appellant referred to me also the cases of Khatijabi v. Umarsaheb Ansersaheb 1927 A I R 52 Bom. 295 and Ahmad Soleman Vohra v. Mst. Bai Fatema (Supra). But none of those decisions is of any avail to the appellant. In the former case it has been held that under the Muhammadan Law an oath under the form prescribed for "Li'an" does not, ipso facto, entitle a wife, who has been found on evidence to be adulterous, to a divorce. The second is a decision in a suit for dissolution of marriage and it has been held that under the Muhammadan Law a wife, who has been falsely charged with adultery by her husband, is entitled to a divorce but the husband is not entitled to an opportunity to retract the false charge before the divorce is granted. So those decisions are not avail to the appellant. At the bar no reference was made to any decision regard ing restitution of conjugal rights. The case of Jomiruddin Ahmad v. Mst. Sahera Khatun Bibi and others 1926 A I R 54 Cal. 363, is a case of restitution of conjugal rights by husband against the wife in which defences of the wife were that there was Talak, that the husband had no means and there was cruelty on the part of the husband. Both the trial and first appellate Courts refused to grant relief to the husband. The trial Court found that the wife had already given her affection to the defendant No. 4 and the first appellate Court held the husband had openly charged the wife with adultery and this was clear cruelty and on that ground the learned Subordinate Judge thought that no specific performance of the contract should be allowed and he further found that there would be great risk in the two living together It was held by Mukherjee and Graham JJ. referring to the case of Moonshee Buzloor Ruheem v. Shumsoonnissa Begum (1866) 11 M I A 551 P C "that under the Muhammadan Law, in order to establish legal cruelty between man and wife there must be actual violence of such a character as to endanger personal health or safety ; or there must be reasonable apprehension of it. To speak of a wife that she has been living in adultery at a time when she has been so living can hardly be said to be cruelty at all and in any event it cannot be said that this conduct on the part of the husband disentitled him on claiming restitution" and in that view their Lordships decreed plaintiff's claim for restitu tion. The facts of that case are not similar to the present one but the principle laid down there is in my opinion, applies to this case. The other case of Mst. Maqboolan v. Ramzan 1927 I L R 2 Luck. 482 is a case from. Rae Bareli, in which Stuart C. J. and Hasan J. held that where a Muhammadan husband accused his wife of adultery and the accusation was held in the Criminal Court to be unfounded, the facts so proved constituted legal cruelty and the husband was not entitled to a decree for restitution. That case was decided in view of the special provisions in subsection (g) of section 3 of the Oudh Laws Act (XVIII of 1876) and there was no ques tion of retraction by the husband and it was against decision of the Privy Council in Buzloor Ruheem's case. So that decision is also of no avail to the appellant. So considering the question from its various aspects, I hold that there is no substance in the first contention of the learned Advocate for the appellant. As regards the second contention of the learned Advocate for the appellant, I find no substance in it in view of the find ings of the lower appellate Court, that no demand was made to pay maintenance at any time beyond two years from the date of the suit and the suit was filed on the 1st Aswin, 1350 B. S. and it was not proved that up to Aswin, 1348 B. S., there was any disagreement or rupture. So the second con tention also fails. The result, therefore, is that this appeal fails and is dis missed with costs. Leave under clause 15 of the Letters Patent is asked for and refused. A. H. Appeal dismissed.