P L D 1963 Dacca 947 (PLP)

HASSAN, J.

‑This appeal by the husband arises out of a suit by a Muslim wife her marriage with her husband (defendant No. 1) under Muslim Law on the ground that she has been falsely charged by her husband (defendant No. 1) with adultery and on the ground of cruelty cause by such charge.

2. It is an admitted fact that the parties were legally married and the marriage was consummated. It is also admitted by defendant No. 1 that he charged the plaintiff falsely with adultery in the later part of February 1957. It further appears that thereafter on 18th May 1957, the defendant No. 1 started a criminal case under sections 497 and 498 of the Pakistan Penal Code alleging that the accused one Abdul Motaleb was leading illegally an adulterous life with his wife (plaintiff). 'h he hus band denied the incident of February 1957, and made a con ditional denial of the charge of adultery in the first written statement. But subsequently he filed an additional written statement that is, just before the trial on the 17th December 1957, admitting that he made a false charge of adultery in the later part of February 1957, as alleged by the plaintiff as well as in the petition of complaint by him.

3. The learned Subordinate Judge decreed the suit holding that the retraction made by the husband on the 17th December 1957, was neither valid and binding nor bona fide and that there was cruelty of conduct.

4. In the present appeal the learned Advocate for the appel lant has assailed the aforesaid findings.

5. As to retraction it has been contended by the learned Advocate for the appellant that the retraction is a vested right of the husband and can be exercised at any stage and that the retraction that has been made is valid and legal. In order to appreciate this argument it is necessary to some of the provisions of the Muslim Law on the subject.

6. There are different kinds of firkat or separation of married parties under the Muslim Law by which some require a judicial decree and some do not. Under the former case a separation on the ground of option of puberty, Wan etc. and under the latter case separation on the ground of emancipa tion or illa or marriage being invalid etc. Every separation under the former is nothing but cancellation of the marriage contract and under the latter it is a talak pronounced by the husband by some appropriate words.

7. Some of these separations are revocable and some are irrevocable. In the case of irrevocable talak, the wife is not lawful to the husband. If a man pronounces three divorces upon a wife who is free or two upon one who is a slave, she is unlaw ful to him until she shall first have been espoused by another man, who having duly consummated afterwards divorce her or dies and her eddat from him be accomplished, because God has said "If he divorce her, she is not after that law to him until she marries another husband." The marriage with any other person during eddat is forbidden on account of inducing a doubtful parentage. Though exercise of this right of talak by the husband is vested in him, talak is not looked upon with favour.

8. Authorities are of one view that a decree shall have to be obtained from the Court by the wife on the ground of Wan and when a false accusation is preferred against a woman accusing her with adultery disavowing parentage of a child in wedlock and the husband is unable to establish the charge, the woman is entitled to claim a divorce from the Court.

9. In order to get a decree for separation there must be a valid marriage between competent persons under the Muhammadan Law and some procedures shall have to be followed under the law. These procedures had neither been followed in the Courts of British India nor are being followed in the Courts of India and Pakistan. Yet relief s are being granted on the ground of Wan.

10. The legal effect of Wan as soon as it has passed between the parties is to render the sexual intercourse between them and all excitements to it unlawful ; but a separation is not effected by the mere !fans. So that if the husband should repudiate his wife while in this condition by an irrevocable repudiation or he can take recourse to Court for separation it would take effect. In the case of the wife she must go to the Court for a decree.

11. Now, the question is whether the husband can defeat the claim of the wife for decree for divorce merely by retracting imputation as to chastity of the woman. All the schools of thought are of one view that if the imputation is true, the woman cannot obtain any divorce for separation. But there has been divergence of opinions when the imputation is made against a chaste woman and retracted. In some cases it has been held by some Courts in British India that by retraction, the woman's claim for divorce can be defeated by the husband and in some cases it has been held that in order to defeat the claim for a decree for divorce, the retraction must be bona fide. As to time for retraction, there are divergent opinions. In some cases it has been held that valid retraction must be made at the earliest possible time and in some cases at any stage of the suit.

12. In my considered opinion, the imputation by the husband as to the fidelity of a chaste wife will always give a woman the right to have a decree for divorce. The retraction of she imputation by the husband at any time cannot defeat the claim of the woman for a decree by divorce. 1 his imputation as to chastity must be of free will not being influenced by any threat, undue influence, anger, passion due to quarrel between the couple, loss of balance of mind etc. But however, the wife can compromise the matter and may give up her claim to divorce. It is absolutely within the discretion of the woman.

13. The view of mine also finds support in the dissolution of Muslim Marriages Act (Act VIII of 1939). Many grounds for divorce by a suit by the wife have been provided for in this Act. One of them is cruelty. Cruelty can be physical and mental. Mental cruelty is the worst. The false allegation by the husband of a chaste woman as to chastity of a chaste woman cuts to the heart. It is in evidence of the woman that the plaintiff and her father were arrested by the Police in the criminal proceeding against her and the plaintiff was jeered at by the husband (defen dant No. 1).

14. It will be further noted here that it has been found by the learned Subordinate Judge that the retraction by the defendant No. 1 is not bona fide. I have gone through the evidence and I am convinced that that finding is a correct one. First of all, the defendant imputed adulterous life to the plaintiff publicly and thereafter filed a criminal case alleging that the plaintiff was leading an adulterous life with another person. In the written statement of 7th August 1957, there was a conditional retraction as to the allegations in the criminal case but no reference was made to the February incident. An additional written statement was filed on 17th December 1957, when the plaintiff and the defendant were examined admitting that he made false allegation. The criminal case started by the defendant No. 1 under section 499 of the Pakistan Penal Code was dismissed under section 203 of the Criminal Procedure Code only on 3rd August 1957. The defendant also contested the suit by cross -examining the plaintiff's witnesses. From these it is apparent that the retraction that has been made by the defendant is not a bona fide one but an after‑thought and was made in order to defeat the plaintiff's claim and thereby to harass her. The appeal is accordingly dismissed with costs and the judgment and decree of the trial Court are affirmed. IDRIS, J.‑I agree but I like to state the facts and my views in my own way.

16. Defendant No. 1 Shariful Islam Khan married the plain tiff Mst. Suraya Begum on the 14th July 1956. Shariful Islam stayed in the house of his father‑in‑law for 2/3 days from the 27th July 1956, and the marriage was consummated. After this short stay, Shariful Islam went to his house at Kustia, and the plaintiff stayed on in her paternal house at Shajahan pur, Dacca. In the last part of February 1957, Shariful Islam came to the house of his father‑in‑law with some relations and wanted to take the plaintiff to his house, but as the father of plaintiff' refused to that, altercation started between the two, in the course of which Shariful Islam charged the plaintiff with adultery and alleged that she was leading an immoral life with P. W. 2 Abdul Motaleb, a cousin of the father of the plaintiff. Abdul Motaleb who was present there became furious because of this false allegation and slapped Shariful Islam. Thus insulted, Shariful Islam left the house with the threatening that he would avenge the insult. About three months after this, on 18‑5‑57 defendant Shariful Islam filed a criminal case under sections 497 and 498 against Abdul Motaleb on the allegation that he eloped away Suraya Begum on 27‑7‑56 and that both were leading an adulterous life and got a search warrant issued for her recovery. On the following day, he went with police force to the house of his father‑in‑law, got the plaintiff arrested and enjoyed the arrest of Suraya. She was taken in arrested condition to some extent from her paternal house and was afterwards released on bail. Plaintiff Suraya Begum felt so much outraged by this that on 27‑7‑57 she instituted that suit for the dissolution of the marriage. Her case is that the allegations of adultery made against her are absolutely false and that Shari ful Islam was also cruel in his conduct towards her as he got her arrested by Police, and that in the circumstances she was entitled to have marriage dissolved.

17. Defendant No. 1 Shariful Islam contested the suit. In the written statement filed on 17‑8‑57, he made denial about the February incident, and made a condition retraction with regard to the false charge of adultery made in the petition of complaint. On 17‑12‑57 just before the opening of the case, he filed another written statement making an unconditional retraction of the charges of adultery made in February 1956, and also in the petition of complaint.

18. The learned Subordinate Judge passed a decree for dissolution of marriage. It was held by him that since the passing of the Dissolution of Muslim Marriages Act, 1939 (Act VIII of 1939), the plea of retraction on a false charge of adultery was no longer available and that the retraction was not a valid and bona fide one. The learned Subordinate Judge also held that defendant No. 1 was cruel in his conduct towards the plaintiff:

19. Dr. Alim, the learned Advocate for the appellant con tended that the retraction is available even after the passing of the Dissolution of Muslim Marriages Act (Act VIII of 1939) and that the learned Subordinate Judge was wrong in holding that this was not available at present since the passing of this Act. This contention has substance and is to be accepted. As a suit by a Muslim wife for dissolution of marriage on the ground of Wan that is, a false charge of adultery is maintainable after the passing of the Dissolution of Marriages Act (Act VIII of 1939), although a false charge of adultery is not a ground for dissolution e of marriage under the same Act, it is natural that all relevant matters relating to Wan including the plea of the retraction can be raised in such a suit. The view that retraction is available even after the passing of the Dissolution of Muslim Marriages Act, 1939, is supported by the case of Saleha Khatun v. Siddikulla (P L D 1958 Dacca 62). That was a case brought by a wife against her husband for dissolution of marriage on the ground of Wan, that is, false imputation of unchastity. The husband raised the plea of retraction. The question whether the retraction was valid or not was dismissed and it was held by his Lordship Rahman, 1. as he then was, that retraction being a conditional one was not valid. It would follow that the plea of retraction is maintainable after passing of the Dissolution of the Muslim Marriages Act (Act VIII of 1939).

20. In this connection I may also refer to some authorities on Muslim Law relating to the principle of retraction of Wan. The principle has been thus stated in Hamilton's Hedaya, Vol. 1, Chapter X, first edition, page 348: "If, after imprecation, the husband should acknowledge that his accusation was false, by saying I falsely laid adultery to her charge', he becomes privileged with respect to her, that is to say, it is lawful for him to marry her as well as any other person. This is according to Haneefa and Mohammad. Aboo Yoosaf says that she is for ever prohibited to him, and that he cannot marry her the Prophet having said `two who make imprecation can never come together,' which shows the separa tion established between them to be perpetual; wherefore his marriage with her is illegal. The argument of Haneefa and Mohammad is that the husband's acknowledgement is a retraction from his evidence, (that is, from his imprecation), and evidence is by subsequent retraction rendered null and of no effect; and as to the saying of the Prophet above cited, mean that the parties cannot come together as long as they both pre serve in their imprecation ; but after the husband's acknow ledgement, the imprecation no longer remains either in substance or in effect, and consequently they may then come together."

21. In Baillie's Digest of Mohammadan Law, 1865 Edition, page 335 it has been stated as follows: "The legal effect of Wan, as soon as it has passed between the parties, is to render sexual intercourse between them, and all excitement to it unlawful, but a separation is not effected by the mere Wan. So that if the husband should repudiate his wife while in this condition by an irrevoc able repudiation, it would take effect, or if he should retract, by declaring that he lied, intercourse would again become lawful without a renewal of the marriage." Thus as according to the Muslim Personal Law Sharial, the husband has got the right of retraction, it cannot be held that the plea of retraction is no longer available because of passing of the Dissolution of Muslim Marriages Act (Act VIII of 1939).

22. In the case of Kalloo v. Mst. Imaman, (A I R 1949 All. 445), it has been laid down that plea of retraction was no longer available after the passing of the Dissolution of Muslim Marriages Act, 193q (Act VIII of 1939). The learned Subordinate Judge instead of relying on that case should have looked to the decision of our High Court in P L D 1958 Dacca 62 and should have held that plea of Wan was tenable.

23. Dr. Alim, next contended that the retraction made by the husband was a valid one as it was unconditional. The learned Subordinate Judge held that as the retraction was made at a very late stage, it should not be regarded as valid. In the written statement filed on 17‑8‑57, there was a total denial about the February incident, and retraction about the allegation in the petition of complaint was only a conditional one. The uncondi tional retraction was made by the additional written statement filed on the 17‑12‑57, just after the opening of the case, and before the commencement of evidence. The learned Subordinate Judge held that as the retraction was made at that late stage, it was not valid, Dr. Alim contended that as full and uncondi tional retraction was made before evidence was started, it should have been accepted as a valid one. The principle relating to the effect of retraction made at different stages is thus summarised in Mulla's Mohamedan Law, 12th Edition, 260: "Retraction of charge.‑--The effect of the decisions, excusing what are merely obiter dicta, would appear to be that a retrac tion of the charge by the husband at or before the commence ment of the hearing disentitles the wife to a decree but she is desentitled to a decree if the retraction is made after the close of the evidence or of the trial."

24. Order XIV, rule 1, sub‑rule (5a of the Code of Civil Procedure indicates that the first hearing of a suit commences with the reading of the plaint and the written statement by the Court for the purpose of framing the issues. It is as follows: "At the first hearing of the suit the Court shall after reading the plaint and the written statements; if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law., the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend." So in my humble opinion, retraction to be valid is to be made before the commencement of the hearing as mentioned in order XIV, rule 1, sub‑rule (5) of the Code of Civil Procedure, and before framing of issues, and retraction made after that would not be validly acceptable. This view is supported by the case of Shamsunnessa Khatun v. Mir Abdul Mannaf (A I R 1940 Cal. 95). In that case the retraction was made in the deposition. It was held: "The retraction in the deposition cannot also be availed of because it was made after the commencement of the hearing of the suit . . . . ."

25. The learned Advocate for the appellant referred to the case of Rahima Bibi v. Fazil (I L R 48 All. 834), and contended that retraction even after the evidence was closed is a valid retraction but no such principle appears to have been laid down in the above mentioned case. On the other hand the following observation made by Sulaimaan, J., would support the view that the retrac tion should have been made before the commencement of the hearing: "In the present case, however, there was no proper retraction at all. The defendant never admitted that he had made the accusation and that it was false. The real basis of the pro cedure of the Muhammadan Law seems to be that when the wife appeals to the quazi and asks for the dissolution of the marriage on the ground that she has been falsely accused by her husband of adultery, it is open to the husband to admit that he made a false accusation and thereby render himself crimi nally liable or to substantiate the accusation." But in the case before us the unconditional retraction was made on 17‑12‑57, that is, more than 6 months after his appearance in Court on 4‑6‑57, and about three months after framing of issues on 10‑9‑57 The learned Subordinate Judge was right in holding that retraction was invalid because it was made at a very late stage.

26. Dr. Alim referred to the cases of Mst. Fakhre Jahan Begum v. Muhammad Hamidullah Khan (I L R 4 Luck. 168), Saju Bibi v. Muksed Mollah (45 C W N 122), and Saleha Khatun v. Siddikulla, in support of the contention that the retraction should have been accepted as it was full and unequivocal. In the case of Mst. Fakhre Jahan Begum v. Hamidulla Khan, retraction made by the defendant husband was accepted and the suit for dissolution of marriage on the ground of li'an was dismissed "that was a case brought by a wife belonging to Shia sect against a husband belonging to Sunni sec;. The defendant in that case from the very start pleaded that he made the accusation in good faith and said that 6e withdrew his previous statement unconditionally. He justified his making of the charge and not the charge itself. In the circumstances, the retraction was accepted and the suit was dis missed. But the facts are otherwise in this case. Defendant did not admit in the first written statement about the making of any accusation and so the question of good faith does not arise. Even in the additional written statement there is no plea that accusation was made in good faith. No such plea could be raised because there was no justification for the accusation and as admitted in the additional written statement, this was absolutely false. In paragraph 2 of the additional written statement, the following statement is made: "This defendant No.1. hereby declares that all the aforesaid imputations on the plaintiff as were made by this defendant were all false and baseless." So the above‑mentioned case is of no help to the appellant.

27. The case of Saju Bibl v. Mukshed Mollah, is distinguish able from the present case. In that case, the defendant‑husband admitted about institution of a criminal case against his father -in‑law and others wherein he imputed fornication against his wife. He pleaded that he did so as a suspicion was created in his mind by reason of the wife's own statement in a previous criminal case when she denied being married to the defendant and asserted specifically that she was married to another person. The Court held that the retraction was a bona fide one and the suit was dismissed. But in the present case it cannot be held that the retraction was a bona fide one. There was nothing suspicious in the conduct of the wife for such imputation.

28. In the case of Saleha Khatun v. Siddikulla, the following observation was made: "It will thus be seen that according to the texts the original rule of the Muhammadan Law was that retraction to be valid must be such as will give the husband the lie and he will be visited with punishment for slandering his wife. It seems to me, therefore, that upon these authorities a retraction to be a valid retraction under the Muhammadan Law must imply an admission of having made the charge and then acknowledging such a charge as false." In that case the question whether retraction was bona fide did not arise as the retraction was a conditional one and was held to be invalid.

29. Mr. Mozammel Huq, the learned Advocate for the respondent contended in reply that the retraction was not a valid and bona fide one, and was made only to frustrate the object of the suit by the plaintiff and that it should not be accepted. In support of this contention reference was made to the cases of Ghulam Bhik v. Mst. Hussain Begum (P L D 1957 Lah. 998), and Abdul Aziz v. Mst. Bashiran Bibi (P L D 1958 Lah. 59). In the case of Ghulam Bhik v. Mst. Hussain Begum his Lordship Kaikaus, J., as he then was made the following observation regarding retraction of the charge of adultery: "If a husband brings a charge on strong grounds and on coming to know that he has only been misled retracts the charge bona fide and in all sincerity, and not merely as a device to defeat the suit of the wife, that may be a good ground for not decreeing dissolution. This locus penitentiae would, however, be available only in a case where originally the charge is brought on good and strong grounds. If the charge was brought on flimsy grounds we would not agree that even a sincere retrac tion would defeat the suit of the wife." In the case of Abdul Aziz v. Mst. Bashiran Bibi, the following observation was made: "A retraction can be of no help to the husband if his sole object is to defeat the suit of the wife." In the case before us as already observed the husband made the imputation against the wife without any reason whatsoever. The retraction was made just before the start of evidence and was apparently to frustrate the suit of the wife for dissolution of the marriage.

30. It will thus appear that in order to constitute a valid retraction, it must be made before the commencement of the hearing, it must be bona fide and there must be an admission in it by the husband about making the charge and an uncon ditional acknowledgment by him that the charge is false. In this case before us the retraction was not made in time and was not bona fife. So it cannot be accepted as a valid retraction.

31. Dr. Alim also contended that cruelty of conduct cannot be a ground for dissolution of the marriage in this case as no such case was made in the plaint. This contention has no substance as the plea of cruelty has been actually taken as will appear from paragraph 12 of the plaint. The following statement was made in paragraph 12: " ..He has played with the life and honour of a poor innocent girl with wanton cruelty. He took advantage of the extreme youth and innocence of the plaintiff and her unso phisticated mind and by willful misrepresentation induced her to believe that he was a respectable and educated person and deceitfully obtained her signature to the kabin. He misused the indulgence and forgiveness of the plaintiff's parents and relations and insulted them in the vilest manner, falsely and maliciously accused her of committing adultery with her uncle said Abdul Motaleb Sh. and also lodged a complaint before a Court of Law on the self‑same, absolutely false and malicious allegations and on a search warrant obtained from the Criminal Court compromised her position in her society and humiliated her before the public, by false and malicious imputation of adultery. Defendant No. I has thus by his cruelty of conduct and inhuman behaviour made the life of the plaintiff extremely wretched and miserable and has ruined her position in society it is now impossible for the plaintiff to live with the defendant No. I as man and wife with honour and dignity." In her evidence plaintiff stated: "On 19‑5‑57, without any previous intimation, the defendant No. 1 turned up suddenly with some policemen and wanted to take me and my father to the Thana by force. In fact, I and my father were dragged towards the Thana to some distance. My father wanted to see the warrant but the defendant No. 1 stopped the policemen from doing so. I and my father felt very bad and we cried out of shame. Seeing this the defendant No. 1 laughed at us and expressed the view that he was enjoying the fun . . . . . I am very much mentally shocked on account of this allega tion and this conduct on the part of the defendant No. 1 and it is impossible for me to live with him as his wife." In cross‑examination she made further statement as follows :‑ "The constable caught my hand and dragged me at the instance of the defendant No. 1 and his friends and they all laughed at this ugly scene." P. W. 3 made the following statement :‑ "The defendant‑husband went with a police force to the house of the plaintiff's father to cause her arrest. The consta ble arrested the plaintiff and her father and dragged them to a distance of 50 to 60 yards while I and others were trying to find out the matter from the S. I. of Police. The plaintiff was weeping." There is no denial to these statements of P. Ws. 1 and 3 by the defendant No. 1 or by any witness on the side of the defence. The facts that defendant got the plaintiff arrested and dragged her to the extent of 50 to 60 yards in arrested condition and that defendant enjoyed the arrest while the plaintiff was weeping to show the cruel conduct of the defendant towards the plaintiff. Cruelty has not only been stated in the plaint but this has been definitely established by the evidence. Thus on the ground of cruelty also plaintiff is entitled to have the marriage dissolved. There is no ground to allow the appeal. S. B./A. H. Appeal accepted.