P L D 1967 Dacca 421 (PLP)

It has also been argued that as the evidence of D. W. 1 Abul Hossain that demands were made for prompt dower were not corroborated by independent witness, the lower appellate Court erred in accepting his evidence. This is a question of fact and it was for the lower appellate Court to believe or not to believe his evidence. It may be noted that a brother was al natural witness to make demands for prompt dower on behalf of his sister. It also may be stated here that plaintiff did not make any denial about the demand for prompt dower made by D. W.

1. The learned counsel has also contended that the delegated right of divorce for non‑payment of prompt dower is unreasonable and opposed to the policy of Muhammadan Law and that as such defendant No. 1 was not entitled to exercise the delegated right of divorce for non‑payment of prompt dower. In support of this contention, reference has been made to Fyzee's Outlines of Muhammadan Law at page

136. The following observation appears there:‑ "Tyabji has pointed out that the breach of a valid condition in a marriage contract does not necessarily give the wife a right to have the marriage dissolved, and he has discussed exhaustively the problems that commonly arise in India." Reference has also been made to Baillie's Digest of Muhammadan Law 1887 Second Edition at page

76. The follow ing observations have been made there; "When anything is stipulated for in a contract of marriage which is contrary to law, as, for example, that the husband shall not marry another wife during the lifetime of the party with whom the contract is made, nor privately entertain a woman as his concubine, the condition is void, and the contract valid together with the dower. In like manner, if the husband should stipulate for the payment of the dower at a certain term, and that in the event of failure the contract shall be null, both contract and dower are binding and the condition void." These observations do not indicate that delegated right of divorce for non‑payment of prompt dower is unreasonable and opposed to the policy of Muhammadan Law. The learned counsel on behalf of the appellant has also argued that dower is a simple debt and that as the debt could be recovered by other means, it is not reasonable that delegated right of divorce should be exercised for non‑payment of prompt dower. But when the right is delegated, there is no legal bar to the exercise of this right. It has also been argued that in the facts of the present case, the plaintiff was not bound to give maintenance, the delegated right of divorce could not be exercised. In support of this contention reference has been to the cases reported in 14 D L R 613, 11 D L R 124, 11 D L R 17,and P L D 1963 Dacca 583.. In the case of Ahmed Ali v. Sabha Khatun Bibi and others (14 D L R 613) it has been held that where the wife has refused to live with her husband and to perform her marital obligations without any valid reason, the husband was not bound to maintain her wife and his failure to do so would not entitle the wife to exercise the power of pronouncing a valid talak and that constituted no defence to the husband's suit for restitution of conjugal rights. But in the present case the wife did not refuse to live with the husband. It was the husband who had sent her to her paternal house and did not give her maintenance for more than a year. In the case of Mitha Khan v. Mst. Hidyat Bibi (11 D L R 17) it has been held that if by reason of the wife's conduct, the husband was under no obligation to pay her maintenance, the former could not make the non‑payment of ground for dissolution of her marriage under the Act. That observation was made in a suit for dissolution of a marriage. The present suit is one for resti tution of conjugal rights. In the present case there is nothing in the conduct of the wife for which the husband could refuse to pay her maintenance. In the case of Mst. Rahilan v. Sanaullah (11 D L R 124) it has been laid down that the duty of the husband to maintain his wife is only this that, he is to give the wife food and clothing and a place for residence. Under ordinary circumstances, the food, clothing and residence are to be provided at the house of the husband and there will be no failure to maintain unless the husband is not prepared or refuse to her food clothing at his own house. It is only in exceptional circumstances that there would be a duty cast on the husband to pay maintenance in cash. This will happen, for instance, where, under his direction, the wife is living separately. In the present case the wife was living in the house of her parents as she was sent by him there after a quarrel. In the case of Majida Khatun Bibi. v. Paghalu Mohammad (P L D 1963 Dacca 583) it has been laid down that where the wife refused herself to return to her husband's house without sufficient cause, she was no entitled to maintenance. The facts of that case are entirely different from the facts of the instant case. In the present case she did not refuse herself to return to her husband's house. , She was sent to her parent's house by the husband and he took no care about her and did not send her any maintenance there. The above‑mentioned cases are of no help to the appellant in the present case. The learned counsel has also argued that in the talaknama there is mention of one quarrel in 1363 B. S. and that as such the lower appellate court should not have accepted the evidence of defendant No. 1 and of her brother defendant No. 2 that she was sent to her paternal house after a quarrel in the last part of Ashar, 1364 B. S. This is a question of fact and the lower appellate Court was entitled to accept the evidence of defendant No. 1 and of her brother. It has also been argued that defendant No. 1 did not pronounce the talak by Tafweez according to law. The defendant No. 1 deposed that she pronounced the talak three times. The learned counsel has argued that as her evidence that she pronounced talak three times is not corroborated by any other evidence, the lower appellate Court erred in law in accepting her statement. In support of this contention reference has been made to the case of Mirjan Ali v. Mst. Maimuna Bibi (53 C W N 302). In that case it has been laid down that where by agreement between the parties, a Mohammadan husband confers on his wife the power of divorcing him on the happening of a certain contingency, then the marriage does not automatically stand dissolved on the happening of that contingency. In such cases, it is always necessary that there shall be a formal pro nouncement of talak and it should be made either to the husband and/or in the presence of witnesses. In that case there was evidence that wife pronounced the talak three times. But there was no other corroborative evidence. But in the present case the evidence of defendant No. 1 is corroborated by the deed of divorce. With great respect, I cannot also agree with the view that pronouncement of talak by the wife is to be made either to the husband or in presence of witnesses. As the husband can exercise right of divorce in the absence of wife or in the absence of witnesses, the wife also in the absence of the husband or witness can exercise the delegated right of divorce on the happen ing of contingencies. It is not necessary that she is to exercise that right in the presence of the husband or in the presence of witnesses. This view is supported by the following observation in Mullah's Muhammadan Law, 14 Edn., page 169. "An agreement made, whether before or after marriage, by which it is provided that the wife should be at liberty to divorce herself in specified contingencies is valid, if the conditions are of a reasonable nature are not opposed to the policy of the Mohammadan Law. When such an agreement is made, the wife may, at any time after the happening of any of the contingencies, repudiate herself if the exercise of the power, and a divorce will then take effect to the same extent as if a talak had been pronounced by the husband. The power so delegated to the wife is not revocable, and she may exercise it even after the institution of a suit against her for restitution of conjugal rights." It has also been argued that there was no proper appreciation of the evidence by the lower appellate Court. I cannot accept this contention. The judgment does not indicate that there was no proper appreciation of evidence. Dr. M. A. Aleem, the learned counsel on behalf of the respondent has represented that as there was no injunction order against defendants, defendant No. 1, after dismissal of the appeal, has taken a second husband. This will have no effect on the merits of the appeal. Had it been found that the delegated right of divorce was exercised illegally, the second marriage would not stand as a bar to the decree. However, it is not necessary to enter into the question in detail as the decision of the lower appellate Court affirming the order of dismissal passed by the trial Court is going to be affirmed. In the result, the appeal is dismissed with cost. The judgment and decree passed by the lower appellate Court are affirmed. Leave under clause 15 of the Letters Patent prayed for is refused. K. B. A. Appeal dismissed.