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Patna High Court
Bibi Sogra vs Mohammad Sayeed on 31 May, 1917
Equivalent citations: 40 Ind Cas 672
Author: Sharfuddin
Bench: Sharfuddin, Roe


JUDGMENT

Sharfuddin, J.

1. This is an appeal in a dower suit instituted by an old lady named Bibi Sogra against her husband named Mohammad Sayeed. The plaintiff’s case is that she was married to the defendant in 1875 on a dower of Rs. 40,000 and two gold mohurs and the whole of that amount she alleges to be prompt. She has brought this suit only for Rs. 20,000 and alleges that her husband in 1905 having married the daughter of a hawker began to ill-treat her and practically stopped maintaining her, and that only occasionally he used to give her Rs. 5 to Rs. 10. On the 12th April 1914, she says she went to her husband and demanded money for her maintenance. On this demand he got so enraged that he divorced her by uttering three times in Hindustani “Ham tumko talakdia,” This, as already observed, happened on the 12th of April 1914. On the 23rd April, i.e., 10 or 11 days after the divorce the present suit was instituted.

2. On behalf of the defendant it is alleged that the dower fixed at the time of the marriage was not Rs. 40,000 and two gold mohurs but only 500 dinars which is equivalent to, Rs. 160 or so, and that this was a deferred dower. Then he further said that on the date of the alleged talak he was at Gya. The Subordinate Judge who tried the suit gave a decree to the plaintiff for a sum of Rs. 6,000 and this he did on a consideration of the position in life of the parties concerned. The Subordinate Judge’s decree of Rs. 6,000 cannot stand. The Courts of Law have no power to increase or decrease a contracted amount. There is an Act in Oudh no doubt, under which such a thing is possible, but that Act is not in force in this Province. If the case was proved, the Subordinate Judge should have given a full decree. If it was not proved he should have dismissed the suit.

3. The plaintiff’s case depends on two facts: Firstly, what was the amount of the dower and whether it was prompt or deferred. If it was prompt, it becomes due on demand; and if it was deferred, it becomes due on the death of either of the parties or on a divorce; secondly, whether or not there was a divorce by the husband on the 12th April. Because, if there was a divorce, it was immaterial for the purpose of the present suit whether the dower was prompt or deferred, as after the cessation of the relationship of husband and wife either by death or divorce, the dower, if not already paid, becomes due.

4. I propose to take the question as to the nature of the dower. According to the plaintiff’s case, a sum of Rs. 40,000 and two gold mohurs wore fixed as a prompt dower. Her case is that the husband has always been ill-treating her and that the ill-treatment came to a climax when he married the other girl in 1905. It is surprising that although the plaintiff had been ill-treated for so many years she never made a demand for payment of the dower, because if it was prompt, she could have made the demand at any time she liked, but that she waited for being divorced in order to be able to make the demand. In her evidence daring the trial she says: “I was waiting for the talak to institute the suit, as people had told me that it could not be instituted without talak,” That statement clearly indicates that the dower could not have been prompt, because if it had been prompt, she need not have waited until the divorce. The evidence on that point is also meagre.

5. I now come to the question of talak. The talak has been attempted to be proved by the evidence of the plaintiff herself, her maid servant named Monghlanian and a relation named Mohiban. The plaintiff herself appears to be a very excitable woman. She brought the suit in forma pauperis and in the earlier proceedings she was examined as a witness and in that statement of hers she said that the talak was pronounced three times by the husband in the presence of Monghlanian, Wajid, Gaffur and Kaiyaum and several others. She did not name Mohiban in this connection when she was examined at the earlier stage. Mohiban was examined during the trial and she says: “I did not see any male in the angina. I cannot say whether any came outside. I know the plaintiff’s brother Wajid. I cannot say whether it is true or false that Wajid was also present at the time of the talak.” If Wajid was present he would no doubt on hearing the words talak would begin to remonstrate with his brother in-law or at least take some part in the affair but it is surprising that Monghlanian does not at all remember whether Wajid was or was not present at the time. Mohiban is a relation of the defendant. She says she was present but she does not say that she heard the husband pronouncing the talak three times successively. So her evidence is of no value. I do not think, therefore, that talak had been proved.

6. It has been urged on behalf of the lady that it is very improbable that an old and respectable lady would bring a false suit against her husband alleging that she had been divorced by her husband. That is true, but at the same time it is also very improbable that an old man in the position of the defendant Mohammad Sayeed, who was a Sub-Registrar, would ever think of demeaning himself by a conduct which is never approved of in a decent society in this Province. What seems to me to have been the case is that the lady Bibi Sogra was incensed at the conduct of her husband in his bringing into the house a co-wife and since then disagreement commenced. The second wife has given a son and a daughter to the old man and the apprehension on the part of the first wife and her friends and advisers was that in as much as since the second marriage of her husband the plaintiff had been more or less discarded, it was probable that whatever estate the defendant was possessed of may be given by the defendant to the second wife and the children by her and she, therefore, went to the husband to make a demand of her dower and to bring about a talak if that was possible. Although I do not believe that the talak took place it is quite possible that she may have gone for that purpose in order that she may institute a suit for the payment of the dower. The present appeal by the plaintiff has been brought against the deduction of her claim from Rs. 20,000 to 6,000 by the Subordinate Judge. There is also a cross-objection on behalf of the defendant against the decree awarded by the Subordinate Judge to the plaintiff for Rs. 6,000 and the result of the present appeal is that the appeal is dismissed. Cross-objection allowed.

Roe, J.

7. I agree. I see from the book in Muhammadan Law by Mr. Ameer Ali that when a discord originates between married parties with the wife, or when she herself is anxious to obtain a divorce without any justifiable cause, she has simply to abandon her claim to the settlement in order to secure a dissolution of her marriage. In the case before us although the lady says that she had been habitually ill-treated there is no real indication of this on the record. Discord seems to have originated in the husband’s love for the younger and comelier woman. It was natural, therefore, that the lady would take steps to get a divorce and would be prone to imagine that she had succeeded in getting a divorce.

8. I entirely agree with my learned brother that there was no such divorce. The plaintiff’s suit should have been dismissed. I agree that it be now dismissed with costs here and in the lower Court.


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