P L D 1957 (W (PLP)

CHANGEZ, J.‑

This second appeal has arisen out of a suit brought by the plaintiff‑appellant for restitution of conjugal rights. The relevant facts as alleged by the plaintiff are that he was married to the respondent in the year 1944 and for some years the parties lived amicably. But in July, 1949, the respondent left the plaintiffs house with some cash and ornaments, leaving behind her two children of tender age unprotected and exposed. The plaintiff filed a complaint under sections 380 and 317, P. P. C. against the respondent and three others, on 20th July 1949; in which the accused were summoned in due course and by the 12th of August 1950, the main witnesses for the prosecution had been examined. After the case was adjourned on that day to the 20th of August 1950, for the remaining evidence, the parties sat together in the ante‑room of the Magistrate and settled their dispute. The plaintiff accordingly executed a properly stamped divorce deed Exh. D. 1 and an application Exh. D. 2 for the withdrawal of the complaint. Both these documents were handed over to the respondent. At the rime of executing these documents the plaintiff had received Rs. 1,300 in cash from the respondent to compensate him for the expenses incurred by him in the litigation and on the same day the respondent wrote on the back of the kabeen nama, according to which she, had to receive Rs. 3,000 as dower from the appellant, that she had given up the dower money mentioned in the document. This writing is Exh. P.

9. It appears that soon after, the plaintiff changed his mind and continued prosecuting the criminal case till at last all the accused were discharged on the 29th of November 1950, by the Magistrate, who held that the evidence produced did not establish any offence against any of the accused. In the meantime the plaintiff filed the present suit on the 9th of November 1950, on the allegation that the divorce had been obtained by the respondent by misrepresentation and fraud, and that it was against law and public policy and as such was illegal and void. He further added that he was a Shia by faith and the divorce by writing being not recognised by Shia Law, it was ineffective. The defendant resisted the suit on various grounds pleading inter alia that the plaintiff was not a Shia and that the divorce was not obtained by any misrepresentation or fraud and was not opposed to public policy. On the pleadings of the parties the following issues were framed :‑ (1) Was plaintiff follower of Shia faith at the time of the divorce ? (2) Was defendant guilty of fraud and misrepresentations as detailed in the plaint, in obtaining the divorce, and what is the effect thereof ? (2‑A) Was the divorce deed against law and public policy ? (3) Is defendant entitled to special costs and to what extent ? (3‑A) Have any interpolations been effected in the divorce deed ? When and to what effect ? The trial Court decided all the issues against the plaintiff, except issue No. 3, which referred to the question of awarding special costs to the defendant and dismissed the suit with costs. On appeal by the plaintiff, the learned District judge upheld the decision of the trial Court on all these issues, although he gave different reasons for deciding issues, Nos. 2‑A and 3‑A, and dismissed the appeal. Against this decision the plaintiff has preferred this second appeal and has challenged the decision of the lower Courts on all the issues decided against him. He personally argued the appeal before me. The findings on issues Nos. 1, 2 and 3‑A being findings of fact are concluded by the concurrent findings, of both the Courts, and even if they be erroneous, and however gross the error may seem to be, they cannot be disturbed in second appeal. The sole question, therefore, which requires determina tion is whether in the circumstances of the case the divorce is void being against law and opposed to public policy. In this connection Mr. Ata Ullah Sajjad, the learned counsel for the respondent, vehemently urged that the parties being Muslims, the rule of decision in matter of divorce shall be the Muslim Personal Law, i.e., Shariat. Section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), as amended by section 2 of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951, provides:‑-- " Notwithstanding any rule of custom or usage, in all ‑questions regarding succession (whether testate or intestate) special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family, relations, wills, legacies, gifts, religious usages or institutions including waqfs, trusts and trust property, the rule of decision shall be Muslim Personal Law (Shariat) in cases where the parties are Muslims." It will thus be seen that where the parties are Muslims, the rules of Muhammadan Law in respect of betrothal, marriage, divorce and dower, etc., have been expressly directed to be applied to Muslims. One of these rules is that a divorce pronounced by a husband is valid though pronounced under compulsion. Section 315 of Mulla's Principles of Muhammadan Law (thirteenth edition) lays down:‑-- " If the words of divorce used by the husband are `express' the divorce is valid even if it was pronounced under compulsion, or in a state of voluntary intoxication, or to satisfy his father or someone else." Similarly section 123 of Muhammadan Law by Tyabji (third edition); is as follows :‑ Under Hanafi law a pronouncement of talaq is valid and effects a dissolution of marriage, though made under coercion, or without the intention of dissolving the marriage ; provided that under all schools, it has no such effect if pronounced by a person who is involuntarily or "for a necessary purpose in a state of intoxication." This rule of Muhammadan Law is so firmly established that it does not require any further comment on my part. It was recognised and re‑affirmed by their Lordships of the Privy Council in Rashid Ahmad and another v. Anisa Khatun and others (59 I A 21), where Lord Thankerton, who delivered the judgment of the Board, observed. as follows :‑ " Their Lordships are of opinion that the pronouncement of the triple talaq by Ghias‑ud‑Din constituted an immediately effective divorce, and, while they are satisfied that the High Court were not justified in such a conclusion on the evidence in the present case, they are of opinion that the validity and effectiveness of the divorce would not be affected by Ghias‑ud‑Din's mental intention that it should not be a genuine divorce, as such a view is contrary to all authority. A talaq actually pronounced under compulsion or in jest is valid and effective ; Bailiie's Digest, 2nd Edition p. 208 ; Ameer Ali's Muhammadan Law, 3rd Edition Vol. II, p. 518 ; Hamilton's Hedaya, Vol. I, P. 211." In that case the Subordinate judge had held that Ghias‑ud‑Din had irrevocably divorced Anisa Khatun but the High Court had arrived at the contrary conclusion on the ground that the divorce was fictitious and inoperative because it was a mock ceremony performed by Ghias‑ud‑Din to satisfy his father, but without any intention on his part that it should be real and effective. Similarly it was held by a Division Bench of the Madras High Court in. Vadake Vitil Ismail v. Odakel Bevakutti Umah (I L R 3 Mad. 347), that a khoola divorce is valid though granted under compulsion. It is, therefore, perfectly clear that talaq, even if it is pronounced under any form of compulsion or by way of jest, becomes effective and irrevocable as soon as it is pronounced. The underlying reason for this salutary', provision of Muhammadan Law is that it emphasises the sanctity of the marriage tie among the Muhammadans. Although it is permissible to the husband to dissolve the marriage by pro nouncing talaq without assigning any reason, yet the Holy Prophet said: "Of all things that have been permitted by the law, the worst is divorce". In order to give further opportunity to the husband to ponder over the matter before taking the final step the talaq ahsan and has an forms are preferred to talaq‑ul‑bidaat form. And once talaq becomes effective the husband cannot marry again the same woman until she has married another man and the latter has divorced her or died after actual consummation of the marriage. All these provisions of Muhammadan Law clearly go to indicate that the husband, although free to act, as he likes in the matter, is to take into consideration the grave and serious consequences of his act and is not expected to misuse the power given to him or to trifle with it. He should not pronounce it even under compulsion or coercion, for if he does so, he takes the risk of losing his wife altogether. Such is the sanctity attached to the marriage tie under the Muhammadan Law, although in common parlance it is merely a form of contract with no special spiritual incident attached to it. It is, therefore, argued by the learned counsel for the respondent that in matter of divorce, in view of the very clear provisions of Muhammadan Law, the provisions of Contract Act do not come into operation. If the provisions of Contract Act were applicable then in view of the pro visions relating to free consent, coercion, undue influence, fraud, misrepresentation and public policy, etc., such a divorce would be null and void. But the consensus of authority seems to favour the view that where the parties are Muslims the rule of decision in matters referred to in section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act will be Muhammadan Law irrespective of any other provisions of any other Act to A the contrary. I am, therefore, clearly of the opinion that whatever the circumstances may be, the talaq which had been given by the plaintiff in writing to the respondent, vide talaqnama Exh. D. 1, on the 12th of August 1950, was perfectly valid and legal. This concludes the matter involved in issue No. 2‑A, which is the basic issue in the case. But in view of the importance of the question raised in this issue, which has been dealt at some length by the Courts below, I would like to make my own observations whether in fact the divorce was given in connection with stifling of prosecution. It cannot be denied that on the day when talaq nama, Exh. D. 1, and withdrawal application, Exh. D. 2, were executed by the plaintiff, a non‑compoundable case was pending against the respondent in the Court of a Magistrate 1st Class and the eyewitnesses in the case had already been examined; but no charge had been framed. The relations between the parties were strained and the husband was accusing the respondent of infidelity and cohabitation with another‑ person. In fact he had filed another complaint under sections 497/491 P. P. C. against Nange Shah and others. The climax had reached and realising the futility of making any further attempts to live together the parties decided to settle the dispute. The plaintiff in view of the nature of the evidence produced by him before the Magistrate must have realised the weakness of his case. The documents speak for themselves as to what had transpired before these were executed by the plaintiff. The talaqnama Exh. D. 1 begins with a reference to the criminal case about which it is stated that a petition for its withdrawal had already been drafted and that the plaintiff was unable to produce any evidence in support of it and did not, therefore, wish to prosecute it any further. Then the formula of talaq is mentioned and thereafter it is stated 'that the respon dent had given up her dower debt of Rs. 3,000 in consideration of talaq and had also given to him Rs. 1,300 as expenses and after receiving the same he had executed the talaqnama. In Exh. D. 2, which was addressed to the Magistrate, it was stated by the plaintiff that he had no evidence in support of the complaint and, therefore, did not wish to prosecute it any further. It appears that the document Exh. D. 2 was never produced before the Magistrate or if it was produced, it was returned to the respondent and in any case was not utilised for the purpose for which it was written. The criminal case continued until the 29th November 1950, when the Magistrate discharged the accused holding that the evidence produced did not even prima facie establish any offence against any of the accused as in his opinion, the witnesses produced had not seen the alleged occurrence. The question is whether in the circumstances of the case the talaqnama is hit by provisions of section 23 of the Contract Act which provides as follows :‑ "The consideration or object of an agreement is lawful unless it is forbidden by law or of such a nature that if permitted it would defeat the provisions of any law or is fraudulent or involves or implies injury to the person or property of another or the Court regards it as immoral or opposed to public policy. In each of these cases the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void". During the argument before me emphasis was laid only on the question that the object or consideration of the talaq was unlawful as it was opposed to public policy inasmuch as the purpose of talaq was to compound a non‑compoundable offence, or in other words it amounted to stifling the pro secution, which is a recognised head of public policy. It is well settled that it is against public policy to make a trade of falony or to attempt to secure benefit by stifling a prosecution or compounding an offence which is not com poundable at law and any agreement to that effect is wholly void. If the quid pro quo or the consideration for the talaq in the instant case is the withdrawal of a non‑compoundable case then it is obviously hit by section 23 of the Contract Act. An authoritative exposition of law on the subject is to be found in Bhowanipur Banking Corporation Ltd. v. Sreemati Durgesh Nandini Dassi (A I R 1941 PC 95) where their Lordships of the Privy Council observed as follows :‑- "The law in regard to agreements to stifle prosecutions is reasonably clear . . . . It is of the essence of the defence that the defendant should establish a contract whereby the proposed or actual prosecutor agrees as hart of the consideration received or to be received by him either not to bring or to discontinue criminal proceeding's for some alleged offence. It is of course impossible for such a contract to be made unless both parties know of the proposed or actual proceedings . . Proof, that there has actually been a crime committed is obviously unnecessary. But it is also of course necessary that each party should understand that the one is making his promise in exchange or part exchange for the promise of the other not to prosecute or continue prosecuting. In all criminal cases reparation where possible is the duty of the offender, and is to be encouraged. It would be a public mischief if on reparation being made or promised by the offender or his friends or relatives mercy shown by the injured party should be used as a pretext for avoiding the reparation promised. On the other hand to insist on reparation as a consideration for a promise to abandon criminal proceedings is a serious abuse of the right of private prosecution. The citizen who proposes to vindicate the criminal law must do so whole‑heartedly in the interests of justice, and must not seek his own advantage. It only remains to say that such agreements are from their very nature seldom set out on paper. Like many other contracts they have to be inferred from the conduct of the parties after a survey of the whole circumstances." Applying this test to the facts of the present case, it is to be ascertained as to what was the consideration of the divorce and what was the impelling motive for the plaintiff to execute the deed of divorce. The recital in the deed Exh. D. 1 itself is very clear and admits of no ambiguity. It is to the effect that the dower debt had been given up in consideration of talaq. Obviously the consideration offered for the divorce was separate and distinct and it was not dependent upon non- prosecution of the case, the fate of which must have been known to the petitioner as in the result the Magistrate arrived at the conclusion that the so‑called eye‑witnesses had in fact not seen the occurrence. If, realising the weakness of his case, the plaintiff promised to discontinue the prosecution but decided to divorce his wife on receipt of Rs. 1,300 as expenses and for foregoing her right to the dower debt of Rs. 3,000, can it be said that the consideration for the divorce was opposed to public policy ? It is no doubt true that the terms were settled at one sitting but what appears to have transpired was that the plaintiff, realising the weakness of his case must have told the respondent that he did not wish to continue with the prosecution and that if she was prepared to give him Rs. 1,300 as expenses and to forego her right to dower he would in lieu thereof divorce her. If under these circumstances the divorce was given, was the object to stifle the prosecution and was the consideration given in order to compound a non‑compoundable case ? If the answer is in the negative, as it should be, the divorce was not opposed to public policy and was not against law. The oral evidence produced by the parties on the point involved, has been rightly disbelieved by the Courts below. I accordingly hold that the consideration for divorce was distinct and separate and in fact nothing was paid to the plaintiff in order to induce him to discontinue the prosecution. But assuming for the sake of argument that the object of the divorce or its consideration was the stifling of the prosecution, can the plaintiff be allowed to take advantage of his own wrong when he himself had actually participated in the illegal transaction ? He is more to blame. By this transaction the plaintiff had enriched himself to the tune of Rs. 4,

300. He had obtained from the respondent Rs. 1,300 in cash and had persuaded her to forego her claim to the dower debt of Rs. 3,000 and himself had continued prosecuting her and then had brought this suit to get the divorce declared null and void. When the parties to a contract are themselves' in pari delicto neither of them is entitled to ask any relief from a Court of law. The Court will not come to the aid of either party to retrieve his position. In a decision of the Patna High Court in Bindeshri Prasad v. Lekhraj Sahu and others (33 I C 711), Chapman, J. observed as follows :‑ "Where the illegal portion of an agreement has been carried into effect, the whole matter is outlawed and the Court will not aid either party to retrieve his position if he is not able to show that he has been less to blame than the other. The Courts will not assist an illegal 'transaction'. It is a scands to assist a plaintiff to recover upon the ground that he has joined in breaking the law, but this will not prevent the Court from intervening to frustrate the illegal purpose before it has been effected, or, in any event, from giving relief to the innocent. In particular, the Court will not in any case allow a defendant to retain the proceeds of fraud or oppression; and the Court will not refuse protection to those classes of persons whom the law seeks to protect. But in a case in which no such considerations arise, if the illegal purpose has already been executed in whole or in material part, the law leaves both parties to their fate. In the present case the illegal portion of the agreement was the undertaking to withdraw from the prosecution of certain charges which the law says 'shall not be compounded'. This illegal promise had been carried into effect beyond possibility of recall. ' One side now seeks relief from the act done in consideration for the illegal promise. All that they can say in excuse of their breach of the law is that they were persons accused in those criminal cases. But executio juris non habet injuriam and in the absence of any evidence to suggest that the criminal proceedings were improper, it cannot be held that there was any fraud or oppression or that the accused took a more innocent part in the illegal compromise than the complainant. The authorities make it clear that a suit for the recovery of property transferred in consideration for such an illegal promise would not have lain. There is no direct authority that the principle would also defeat a suit which is not for the recovery of property but merely for a declaration that a sale‑deed executed in consideration for the illegal promise is void, and in Amarica it has apparently been held that a declaratory suit would not be defeated. But if it is the scandal involved that defeats suits of this class, then the principle is clearly applicable to a suit for a declaratory decree. For so far as the scandal is concerned there is no difference between a suit for the recovery of property and a suit for declaration:" In that case the plaintiff had prayed that the deeds executed by him in favour of the defendants having been executed for stifling the prosecution be declared null and void. The same view was taken by Misra, J. of the Oudh Chief Court in Sakatay Sah and others v. Mahadin and others (A I R 1930 Oudh 196). To the same effect is the decision of the Calcutta High Court in Amjadennessa Bibi v. Rahim Buksh Shikdar (I L R 42 Cal. 286) and of the Allahabad High Court in Vilayat Hussain and another v. Mst. Misran and others (A I R 1923 All. 504). The principle laid down in these rulings is fully applicable to the case in hand. For the aforesaid reasons the plaintiff is not entitled to any relief. This appeal is accordingly dismissed with costs. A.H. Appeal dismissed,