P L D 1952 Dacca 385 (PLP)

AFZAL, J.‑

This is an appeal on behalf of the plaintiff and it. arises out of a suit for restitution of conjugal rights against The facts which need be stated briefly are as follows ; The parties who are Mussalmans were married on the 24th Baisak 1345 B. S., corresponding to 7th May 1938, at village Jugirpum in Assam. At the time of the marriage an agreement commonly known as Kabinnamah was executed under the terms of which the wife was entitled to divorce her husband on his failing to fulfil certain conditions. After the marriage the couple lived for some time in the plaintiff's house and for some time in the house of the father of the girl. In 1346 B. S. the girl was taken by her father to his house at Jugirpum in Assam and about a year thereafter to village Kanchanpur in the district of Mymensingh. Since then the parties have not met or lived together. In the meantime a suit was instituted by the wife against her husband, the plaintiff‑appellant for a declaration that the marriage between her and the plaintiff was dissolved ; but that suit was dismissed on 17th November 1941. Before and after the disposal of the said suit, the plaintiff had been making frantic efforts to bring back his wife to his house but to no effect. On 3rd April 1945, the plaintiff received a notice under the Bengal Muhammadan Marriages and Divorces Registration Act, 1876, from defendant No. 4 the Muhammadan Marriage Registrar of Basail, district Mymen singh, to the effect that by virtue of the power delegated by the husband to the wife, she had pronounced talak, The notice stated that on the expiry of one month from the date of its receipt, the marriage of the girl would be registered unless the plaintiff produced .an order from a competent Court that the marriage of the girl with the person named in the notice should not be registered. This gave rise to the present suit being instituted by the plaintiff claiming inter alia, that the talak so pronounced was not a valid talak and that the marriage between the parties still subsisted. The, suit was contested only by the wife and her father. The defence was to the effect that under stipulation entered into between the husband and the wife at the time of their marriage, which was con tained in a Kabinnamah executed by the husband, she had divorced the husband and that, therefore, the plaintiff was not entitled to obtain the restitution he had asked for and the reliefs claimed in the suit. There being a breach of the terms of the Kabinnamah, the wife had pronounced talak and, there fore, the suit does not lie. The learned Munsif who tried the case decided that the talak by the wife was not valid and effective and directed her to go out and live with her husband, the plaintiff. The marriage between the parties was found to be subsisting and the suit was accordingly decreed. The defendants appealed and the learned Subordinate Judge allowed the appeal and dismissed the suit He held that the marriage was dissolved legally by the defendant wife The plaintiff has, therefore, preferred this second appeal. It has been contended before me by Mr. Khjndkar, the learned Advocate for the plaintiff, that the main issue is whether there has been a valid divorce and whether non -payment of maintenance to the wife while staying away from the husband is a sufficient ground for such a divorce in the facts and circumstances of the case. He further contends that the marriage between the parties still subsists. The question which has to be considered in this case is whether the husband in the Kabinnamah executed by him gave a power to his wife to divorce herself and whether one of the conditions in the Kabinnamah being that the wife should have power to divorce her husband under certain contingencies is of a reasonable nature and not opposed to the policy of the Muhammadan Law. In view of this it is to be considered whether the husband was entitled to restitution of conjugal rights. The contention raised by the defence seems to be based on the language of the portion of clause 4 of the Kabin namah. As there was a difference of opinion among the learned Advocates with regard to the translation and meaning of this clause, I had all the four conditions of the Kabinnamah translated by the Court translator and his translation is as follows :‑ (1) I shall keep my wife in panda and privacy and teach her all the duties incumbent according to Shariat and guide her in accordance therewith. If I oppress her wrongfully she will be entitled to reside at her father's house and realise a maintenance charge from me at the rate of Rs. 7 per month. (2) I shall not contract marriages of any kind whatsoever without the consent of the wife unless she happens to be either barren or perpetually ill. If the said wife be in need of going to and coming back from her father's residence I shall send her there and bring her back at my own expenses. (3) If I am to take a remission of any portion of the dower money of the wife, I shall do it in the presence of her near relations. The remission obtained in the absence (of near relations) will not be tenable before law Courts. (4) If I do not give the wife her maintenance for two years three talak‑i‑bam (irrevocable) will take effect on the wife herself. It was no doubt quite in the power of the parties to impose the conditions upon which the marriage took place. If the wife acting upon a condition exercised the power of divorce delegated by the husband to her upon the contingencies which occurred, there is no reason why the divorce should not be given effect to provide the condition appears to be reasonable. In this case, the husband did give a power to his wife to divorce herself on breach of any of the conditions of the Kabinnamah. It was agreed between the parties that the husband should maintain his wife ; and it was stated in the Kabinnamah that "If I do not give the wife her maintenance for two years three talak‑i‑bain (irrevocable) will take effect on the wife herself" When such an agreement is made, the wife may, after the happening of any of the contingencies, repudiate herself in 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, therefore, seems that the husband did give a power to his wife to divorce herself on breach of any of the condi tions of the Kabinnamah. The learned Subordinate Judge strictly relying on the conditions of the Kabinnamah appears to have thought that the aforesaid conditions of clause 4 of the Kabinnamah casts upon the husband an absolute duty to maintain his wife and any failure in that duty will be a ground for divorce irrespective of the fact whether the condition in the circumstances of the case can at all be called to be a condition of a reasonable nature and one which is not opposed to the policy of the Muhammadan Law. He accordingly held that the husband has failed to maintain his wife for a period of two years and that being so, the wife was entitled to a divorce. In my judgment, the view taken by the Subordinate Judge cannot be sustained for that there is no doubt that one of the conditions in the Kabinnamah being that the wife has power to divorce her husband under certain contingencies, and she on the occurrence of such contingencies, having exercised such power of divorce, the husband was not entitled to obtain restitution of conjugal rights but it has also to be seen if the contingencies specified are such as would render the step a reasonable one. The validity of express stipulations entered into at the time of marriage is of some consequence but at the same time the circumstances which justify her refusal to live with her husband have also to be taken into considera tion in order to give effect to the stipulation and to see if it can be viewed as a reasonable one and not opposed to the principles of the Muhammadan Law. But in all such cases, the condition in my opinion ought to be fulfilled, literally and fully, before the power can be exercised. In other words, it, has to be tested whether the condition exercised in the circumstances of the case is one which is reasonable and not opposed to the policy of the Muhammadan Law. It is not doubt true that the husband is bound to maintain his wife so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain her if she refuses herself to him or is otherwise disobedient unless the refusal or disobedience is justified. The facts as found by the learned Munsif make it clear that the wife without sufficient reason had refused to live with her husband and to be a wife to him. It is abundantly clear that the father of the girl was anxious that his daughter should divorce her husband and had apparently brought his influence to bear upon her and had persuaded her not to live with her husband. It also appears that the father had also taken away his daughter to his own house and con sequently had prevented the husband to meet her. There is enough evidence to show that the husband did all in his power to bring back his wife but all his attempts prove futile. Under such circumstances it was not possible for the husband to maintain his wife. She may have a ground of complaint if the husband did not treat her well, but there is no suggestion in" this case that she was living apart from her husband because of any ill‑treatment or for any other valid reasons. It would, therefore, be construing condition 4 of the Kabinnamah most drastically against the husband if he was expected to maintain his wife even when he could not have had any access to her and also when she without any reasonable cause refused to live with him. A husband's duty to maintain his wife is~ conditional upon her obedience and the performance of her marital duties. In the present case, it is clear that the wife has refused to live with her husband and to perform her marital obligations without any valid reason. That being so, the plaintiff was not liable to maintain his wife and clause 4 of the Kabinnarnah was not intended to be made a wrong use of by the wife simply to suit her ends. She cannot expect the husband to maintain her and yet for her to live separately. The interpretation sought to be given by the learned Sub ordinate judge to clause 4 of the Kabinnamah is opposed to the policy of the Muhammadan Law and appears to be of an unreasonable nature in the facts and circumstances of this case. The most formidable contention pressed by Mr. De, the learned Advocate on behalf of the respondents, was that the husband had neglected or bad failed to provide for the maintenance of his wife for a period of two years and in terms of clause 4 of the Kabinnamah, she is entitled to a dissolution of the marriage. I have given my anxious consideration to this contention and I am of the opinion that in the light of the facts and circumstances of the present case, there does not appear to be any wilful failure on the part of the husband to provide for the maintenance of his wife. As the facts reveal, the wife through her own conduct made the husband to stop the maintenance. Her father is entirely to be blamed for causing unpleasantness and it is not possible for the Court to say that the husband has failed to provide for the maintenance of the wife and that there has in fact been a wilful breach of the condition of the Kabinnamah. The contention of Mr. De. therefore, fails. For the reasons, which I have given, I am satisfied that the wife had no right to obtain a divorce in this case, and I would, therefore, allow this appeal; set aside the judgment and decree of the learned Subordinate judge and restore the judgment and decree of the learned Munsif. Under the circumstances of the case as I find the fault is not that of the wife but mainly of her father, the defendant No. 2, I award cost as against him only. A. H. Appeal allowed.