P L D 1967 Lahore 1104 (PLP)

(5) Whether the plaintiff executed an agreement in favour of the defendant Irshad Begum that in case the plaintiff marries a second woman, the defendant would be entitled to reside away from him, if so what is its effect? (6) Relief. After recording the evidence of the parties the trial Court found that the prompt dower was not paid by the plaintiff to his wife but the decision of the case rested mainly on the findings on issue No. 5 and it was held that by executing the agreement (Exh. D. 2) the plaintiff unconditionally undertook "not to take a second wife, and in case he does so, he allows the defendant to live with her parents". As a result of the above finding the plaintiff's suit was dismissed by the trial Court on the 12th of April 1961. The plaintiff's appeal before the learned District Judge was dismissed on the 13th of July 1961. It was held by the learned lower appellate Court that the plaintiff had admitted that he bad taken a second wife and as such he was not entitled to the decree for the restitution of conjugal rights against his wife Mst. Irshad Begum.

2. In this second appeal, learned counsel for the appellant mainly relied on one argument. He submitted that both the Courts below had acted contrary to law inasmuch as they relied on agreement (Exh. D. 2) which is a void agreement as it contains a stipulation in restraint of marriage and provides condition for the husband and wife to live separately from each other. This agreement, according to the learned counsel, is opposed to public policy within the meaning of section 23 of the Contract Act and should not be acted upon. In support of his contention he relied on Mst. Bai Fatima v. Ali Muhammad Aiyeb (I L R 37 Bom. 280) and Mst. Bibi Fatima v. Nur Muhammad ((1921) 60 I C 88). In both these cases it was held that an iqrarnama which provides and encourages future separation between husband and wife, must be pronounced as being against public policy. Since the question decided in these two cases involves an important question of law, it needs detailed examination.

3. In the Bombay case Mst. Bai Fatima v. Ali Muhammad Aiyeb, Batchelor, J., who delivered the judgment of the Division Bencb, relied on his earlier judgment which he had given while sitting single in Meherally v. Sakerkhanoobai (I L R 37 Born. 280) and it was held by him that an agreement made by a husband with his wife was bad in English Law and as such was also bad between Muhammadan spouses. The learned Judge concluded his judgment with the following observations:‑ "It is, as I understand it, as much the policy of the Muhammadan Law as of the English law, that people who are married should live together and not apart; and if that is so, it seems to me that there should be no difficulty in applying to Muhammadans the English Rule that any agreement such as this, which provides for, and therefore encourages, future separation between the spouses, must be pronounced void as being against public policy." In the Lahore case Mst. Bibi Fatima v. Nur Muhammad learned judges of the Division Bench relied on the judgment of the Bombay High Court and it was held that an agreement by a Muslim husband with his wife that she will live in her parents house was invalid and cannot be utilised by the wife to defeat the husband's claim for the restitution of conjugal rights. In this case learned Judges examined the statement of law as given in Muhammadan Law, Vol. III, 1917 Edition by Sir Amir Ali and taking into consideration the facts of the case it was found that the right, if any, in the iqrarnama, executed by the husband had been waived by the wife because after the execution of the deed the wife had consented to live with her husband. However, in this case also it was held that an agreement between husband and wife to live away from each‑other was void as being opposed to public policy.

4. The Bombay case came for examination before the Chief Court, of Oudh in Manzoor v. Azizul (A I R 1928 Oudh 303). In that case the wife was the first wife of the plaintiff husband and when both the wives could not pull on well an agreement was executed by the husband for the payment of maintenance in a separate house. On a suit by the wife for the maintenance the husband pleaded that he was not liable to maintain her under the agreement because she was not living with him as a wife. The suit of the wife was decreed up to the first appellate stage and in second appeal before the Chief Court it was urged that the agreement was with out consideration and against public policy. The learned Judges repelled the contention and dissenting from the Bombay view, observed as follows:‑ "lf a Muhammadan marries a second wife and finds that his first wife cannot pull on well with his second wife and he does not and cannot provide a separate apartment or habitation for her exclusive use, and for the sake of preservation of the family peace executes an agreement in her favour giving her main tenance, even if she does not reside in the same house with him and his second wife, that agreement is not in our opinion against public policy. This arrangement does not necessarily result in separation between husband and wife." The Lahore High Court in a latter decision Muhammad Ali Akbar v. Mst. Fatima Begum (A I R 1929 Lah. 660) considered the judgment of the Bombay High Court in a case where the District Judge had made an award of Rs. 900 in favour of wife on account of the arrears of Kharcha i‑Pandan. It seems that their earlier decision in Mst. Bibi Fatima v. Nur Muhammad was not cited but the Bombay case was particularly dissented in the following words:‑ "With all due deference to the learned Judges (of Bombay High Court) who decided that case, I do not see why a stipula tion by the husband to make an allowance to his wife in case of separation should be deemed to offend against the rule of public policy. Such a stipulation encourages their living separate from each other no more than their living together by imposing an obligation on the husband calculated to prevent him from doing any act which would lead to separation." The obligation of the husband which he had undertaken for the payment of Kharcha‑i‑Pandan at the time of his marriage, was, therefore, enforced.

5. With utmost respect to the learned Judges, who decided the two cases of Bombay and Lahore High Courts, which were cited by the learned counsel for the appellant, I am unable to accept the proposition that an agreement made by the husband with his wife allowing her to live away from him in case of disagreement or when he takes a second wife can in any way be termed as opposed to public policy either under the Muslim Law or within the mean ing of section 23 of the Contract Act. A marriage between Muslim male and female is purely of a nature of civil contract and the wife is entitled to protect herself at the hands of her husband in case of their future differences. In the present case the agree ment is to the effect that the wife is entitled to receive alimony in the house of her parents or anywhere else where she chooses to reside in case the husband takes a second wife and there is nothing in such an agreement which may be considered to offend against the term "public policy" which is very broad and it is not safe to rely upon it in such cases as a ground for legal decision.

6. Meherally's case was decided by Batchelor, J , in 1905 but the position of law has undergone a considerable change after the decision of their Lordships of the Privy Council in Nawab Khawaja Muhammad Khan v. Husaini Begum alias Dilbari Begum (71 C 237) where it was held that:‑ "Where the father of the husband by an agreement executed to the father of the wife bound himself to pay to the wife the fixed allowance and there was no condition that it should be paid only whilst the wife is living in the husband's home, the wife would be entitled to the allowance even if she refused to live with her husband." The attention of the learned Judges, who decided the Bombay case in 1912 and the Lahore case in 1925, does not seem to have been drawn to the above‑mentioned pronouncement of their Lordships of the Privy Council.

7. The other cases which can be referred in this context are Saeed Khan v. Balatunnisa Bibi (25 C W N 888) wherein a suit by the husband for the restitution of the conjugal rights it was held by a Division Bench that a stipulation that a Muhammadan wife may leave her husband's house on ill‑treatment is not opposed to Muhammadan Law. In this case the husband was given a conditional decree to go and perform his marital obligations in the house of her wife's parents. It was clearly laid down to this case that there is nothing in the Muslim law which can invalidate the agreement of the husband with the wife that wife can live away from the husband in case of disagreement. This case is completely on all fours with the facts of the present case and being directly in point furnishes a complete answer to the argument of the learned counsel for the appellant.

8. In Mst. Sakina Farooq v. Shamshad Khan (A I R 1936 Pesh. 195) in similar circumstances it was held that a Muslim husband could make a stipulation that he will not remove his wife from her parental home and that such an agreement is a valid contract and not opposed to public policy.

9. Taking into consideration the preponderance of judicial dicta on the subject I am of the opinion that if a Muslim marries a second wife and finds that his first wife cannot keep on well with his second wife and he does not or cannot provide a separate and exclusive inhabitation for her for the sake of preservation of family peace and, therefore, executes an agreement giving her a right to maintenance even if she does not live with him and his second wife and lives in the house of her parents the agreement is not in any way opposed to public policy. In the present case the agreement was executed by the appellant to meet such a situation. The appellant has admitted before the trial Court that he has taken a second wife and has also got children from her and he is living with them. In these circumstances it is obvious that this agreement was executed in order to maintain the harmony between his two wives and such an agreement is legally perfect and valid under the law.

10. Learned counsel for the appellant had also raised an alternative contention. He submitted that in case the agreement is held to be valid there is nothing under the law to prevent a husband for getting a decree for restitution of conjugal rights in his suit because at the most the wife can enforce her maintenance in a separate house through a Court of law but the existence of such an agreement or failure of the husband to fulfil the obliga tions under the agreement is no defence to the plaintiff's suit for the restitution of the conjugal rights against his wife. I regret I am not able to accept this contention of the learned counsel for the appellant. No doubt it is the duty of the wife to follow the husband wherever he desires her to go. But such an obligation of the wife to live with her husband at all times and in all circum stances is not an absolute one. The law recognises circumstances which justify her refusal to live with him. For instance if he has habitually ill‑treated her, if he has deserted her for a long time etc., or he has directed to leave his house or even connived at her doing so. On all such occasions the husband cannot require his wife to re‑enter the conjugal domicile nor the Court of justice can give him assistance to restore him the hand of his wife. The bad conduct or gross neglect of the husband under the Muslim Law is good defence to a suit brought by him for 'restitution of conjugal rights. Bualoor Rahman v. Shumsoonnisa Begum ((1876) 11 Moore's I A 555) Ameer Ali's Muhammadan Law, Vol. II (1929 Edn.) section 11, pp. 442‑446).

11. No doubt a husband can maintain a suit for the restitu tion of the conjugal rights in a civil Court against his wife, but the decree of the restitution of the conjugal rights is in the discretion of the Court whose duty it is to find out, if there be a cruelty of a degree rendering it unsafe for her if she is ordered to return to the husband's house. In the present case I find that the appellant has committed breach of the agreement which he has executed in favour of his wife as early as 14th of May 1951. The defendant has asserted in her statement before the trial Court that she was maltreated by the appellant as he used to beat her in the presence of his second wife and has ultimately turned her out of his house. There is no evidence in rebuttal to these allegations and the appellant did not even care to cross‑examine her with reference to the allegations which she had levelled against him about the maltreatment, etc. The appellant has failed to provide any maintenance for the defendant wife and her daughter and she was compelled to go to the Criminal Court to enforce the appellant's obligation of maintenance under section 488, Cr. P. C. In these circumstances, I find that the appellant had been guilty of gross failure on his part to perform his obligations imposed on him by the agreement and these circumstances afford a sufficient ground to refuse to the appellant any relief in his suit. I am clear in my mind that the appellant has brought this suit for the restitution of the conjugal rights mala fide and as a counter blast to the application of the respondent for maintenance under section 488, Cr. P. C. I, therefore, do not think that the appellant is entitled to crave for the indulgence of the Court for the grant of the decree for the restitution of the conjugal rights in his favour. Every case, in which the question of conjugal domicile is involved, depends upon its own features and the general principles of the Muslim Law on the subject are that a wife is bound to reside with her husband unless there is a valid reason of her refusal to do so. The sufficiency or validity of the reason in each case is a matter for the consideration of the Court with special reference to the circumstances in which the parties have been residing or they wish to settle in future.

12. In the present case I have no hesitation in saying that the grounds on which Mst. Irshad Begum has separated herself justify her in that step and if a decree for restitution of conjugal rights is granted to rise appellant directing the defendant wife to return to the conjugal domicile of her husband I will be perpetuat ing a grievous injustice by compelling her to live with the appellant in his house with his second wife and her step children.

13. For the aforesaid reasons I do not see any justification to interfere with the judgments and decrees passed by the two Courts below. The plaintiff's suit has rightly been dismissed. This appeal has thus no merit and is hereby dismissed. Since no one appears for the respondent there will be no order as to costs. K. B. A. Appeal dismissed.