Habib Ahmad Razvi v. Hamida Khatun, Musammat — 1933 DIGILAW 229 (ALL)

JUDGMENT Niamatullah and Rachhpal Singh, JJ. - By our order, dated 11th April, 1933, we allowed an opportunity to the Defendant to examine himself as a witness and to obtain commission for the examination of his sister, Aisha Begam. We noted in that order t lat the Defendant. should intimate to the lower Court the probable dates on which he can go to Agra to give evidence without appreciable detriment to public service. If he does not do so, the lower Court should inform the Defendant of the date to be fixed by it sufficient time in advance. 2. The Defendant did not intimate to the lower Court his desire to give evidence on any particular date on which it would be convenient for him to come to Agra to give evidence. The lower court issued a notice to the Defendant requiring him to attend his Court on the 23rd May, 1933, when his evidence would be recorded and the case disposed of. The notice was sensed on the Defendant personally on the 29th April, 1933. On the 17th May, 1933, an application was filed on behalf of the Defendant stating that Mt Aisha Begam was not in British India and that her whereabouts were not known. It was not expressly stated that the Defendant did not desire to examine her, but from what is mentioned in reference to her it is clear that the Defendant meant to intimate that he did not desire to examine her. The application prayed for a commission being issued for the examination of four witnesses, including himself and two other witnesses Mohd. Jamil and Syed Ahmad as to whom our order of 11th April, 1933, was conclusive. We had disallowed any further opportunity to the Defendant to examine Mohd. Jamil and Syed Ahmad for reasons therein recorded. As regards himself, the order was equally explicit. The only option that was left to the Defendant was to proceed to Agra to give evidence. In the face of that order, it was nothing short of audacity on the part of the Defendant or his legal adviser to apply to the Subordinate Judge to issue a commission for his evidence. The 4th witness mentioned in the application was a new witness altogether. "We have no doubt that the Defendant had no bona fide intention of examining any witness in support of his allegations. The 4th witness mentioned in the application was a new witness altogether. "We have no doubt that the Defendant had no bona fide intention of examining any witness in support of his allegations. The learned Subordinate Judge very rightly did not accede to the prayer made by the Defendant's application of 17th May, 1933, and without recording any evidence on his behalf resubmitted the record to this Court. We proceed to dispose of the appeal on the materials before us. 3. The suit which has given rise to this appeal was brought by Mt. Hamida Khatun, who had admittedly been married to the Defendant a few years before its institution. The lady was admittedly divorced sometime before the institution of the present suit. The only controversy between the parties is whether she was divorced on the 17th November, 1925, as alleged by her, or on the 16th August, 1925, as alleged by the Defendant. The question is material in view of the Defendant's plea of limitation. The suit was brought on the 15th September, 1928, and if the date given by the Defendant be accepted as the date of the dissolution of marriage, the Plaintiff's suit when brought was barred by limitation. If, on the other hand, the Plaintiff's allegation in this respect be true, her suit was within time. The Plaintiff claimed Rs. 15,000 due to her as dower stipulated at the time of marriage, while the defense was that the dower which the Defendant had agreed to pay was only Rs. 1500. Another plea raised by the Defendant related to the jurisdiction of the Court. The Defendant is in Government service in the Central Provinces; and the suit was instituted in the Court of the Subordinate Judge of Agra. Apparently the Defendant's contention is that the suit should have been instituted where he resided. 4. We may dispose of the last mentioned plea straight away. The learned Subordinate Judge has found that the marriage between the parties was solemnized at Agra. This finding has not been challenged before us. The learned Subordinate Judge held, in view of that fact, that the Plaintiff's cause of action for this suit should be considered to have arisen at Agra. Accordingly he held that the Defendant's plea as to jurisdiction had no force. This finding has not been challenged before us. The learned Subordinate Judge held, in view of that fact, that the Plaintiff's cause of action for this suit should be considered to have arisen at Agra. Accordingly he held that the Defendant's plea as to jurisdiction had no force. The learned Advocate for the Defendant had to concede before us that, if marriage between Mahomedan parties be considered to be no more than a civil contract, the Subordinate Judge of Agra had jurisdiction to entertain the suit. It is a very elementary rule of Mahomedan Law that a contract of marriage is not a sacrament but a civil contract, pure and simple. We hold, therefore, that the Defendant's plea of jurisdiction has no substance and was rightly overruled by the lower Court. 5. As regards the date on which the Plaintiff was divorced, the evidence lei on behalf of the Plaintiff is unrebutted. She relies inter alia on a. letter, dated 27th November, 1925, sent by post by the Defendant from Nagpur to the Plaintiff who was then at Agra. The word "divorce" is not used in that letter, but other expressions therein employed leave no doubt that the Defendant intended to dissolve the marriage and that he had not done so, before that date. A translation of the letter has been incorporated by the learned Subordinate Judge in his judgment, and we need not reproduce it in our own. The Defendant clearly stated that he did not like to see the plaintif's face and desired to leave no misunderstanding in her mind. The Plaintiff was informed that she was absolutely free to marry anyone she liked and that no connection was left between her and himself. Reliance is placed on a passage to the effect that the Defendant had told her about his intention several times and that he was putting the matter beyond doubt by clearly and definitely expressing his intention in the letter. It is argued that the Defendant had previously divorced the Plaintiff and the fact is mentioned in the letter. Reading the letter as a whole, we do not think that the Defendant had divorced the Plaintiff before the date of the letter. It is argued that the Defendant had previously divorced the Plaintiff and the fact is mentioned in the letter. Reading the letter as a whole, we do not think that the Defendant had divorced the Plaintiff before the date of the letter. He might have threatened the Plaintiff with a divorce or might have been contemplating a divorce and mentioned that fact to the Plaintiff; but the whole tone of the letter and other circumstances, to which reference is made in the judgment of the learned Subordinate Judge, clearly indicate that the Defendant divorced the Plaintiff by his letter of 27th November, 1925, and he had said nothing before that date to dissolve the marital tie between the Plaintiff and himself. The learned Subordinate Judge has pointed out that the Plaintiff lived with the Defendant at Nagpur till her departure, which is referred to in the letter. If the Plaintiff had been divorced during her stay at Nagpur, there would have been no necessity of writing the letter of the 27th November, 1925, with the sole object of informing her that she should not regard herself as his wife. Ex. 8 is a letter, dated 1st September, 1925, written by the Defendant to the Plaintiff's father. If the Plaintiff had been divorced on the 16th August, 1925, as alleged by the Defendant, Ex. 8 would have given some indication of that fact. On the contrary, it is consistent only with the hypothesis that the marriage between the Plaintiff and the Defendant subsisted up to that date. Exhibit 19 is a notice sent by a legal practitioner acting on behalf of the Defendant. It is dated 25th October, 1926. It recites the fact that the Defendant had divorced the Plaintiff, a year before. Though the exact date of the divorce is not mentioned, it fits in more with the Plaintiff's case than with the Defendant's. We have also the evidence of the Plaintiff herself, who swore that she had not been divorced by the Defendant before November 1925. Karim Bakhsh, who is referred to by the learned Subordinate Judge as an independent witness, and Sheikh Ahmadullah, father of the Plaintiff, also support the Plaintiff's case. As against this there is absolutely no evidence indicating that the Defendant had divorced her in August 1925. Karim Bakhsh, who is referred to by the learned Subordinate Judge as an independent witness, and Sheikh Ahmadullah, father of the Plaintiff, also support the Plaintiff's case. As against this there is absolutely no evidence indicating that the Defendant had divorced her in August 1925. The Defendant had ample opportunity of giving his own evidence and examining his relations, who are presumably acquainted with the circumstances in which and the time when the Plaintiff was divorced. His omission to lead evidence on this point clearly shows that his allegation as regards the time of divorce was untrue and made with the sole intention of supporting his plea of limitation. 6. The only other question which remains to be considered is whether the dower stipulated at the time of marriage was Rs. 15,000 as alleged by the Plaintiff, or only Rs. 1500 as alleged by the Defendant. The learned Subordinate Judge surmised that the Defendant adopted the case which he put forward in his written statement in the hope that he would successfully maintain that Qazi's register, which mentions Rs. 15,000 had been tampered with and that a zero had been added to the correct figure of Rs. 1500 written at the time of the 'nikah', This surmise may or may not be well founded, but any attempt to adopt that line of argument is doomed to failure in view of another entry in the register which records the amount of dower in words. Besides the register, we have the evidence of the Qazi, the Plaintiff himself, of Maqsud Ali Khan, who is described by the learned Subordinate Judge as 'a senior Counsel and big Zamindar' and of Inayat Husain, all of whom depose that the dower stipulated at the time of the Plaintiff's marriage with the Defendant was Rs. 15,000. We are satisfied that the finding arrived at by the learned Subordinate Judge is supported by overwhelming evidence and must be accepted. The Defendant's conduct in not giving his own evidence or examining other witnesses is easily intelligible. His pleas that the Plaintiff was divorced in August 1925, more than three years before the institution of the suit, and that the dower stipulated at the time of marriage was only Rs. 1500 could be easily made but could not be established by satisfactory evidence. His pleas that the Plaintiff was divorced in August 1925, more than three years before the institution of the suit, and that the dower stipulated at the time of marriage was only Rs. 1500 could be easily made but could not be established by satisfactory evidence. He did not care to run the risk of supporting his pleas by giving his own evidence or by examining his relatives, assuming they were willing to support him, which is very doubtful. The tactics adopted by the Defendant do not reflect credit on a man of his position and education. We think that the strictures passed by the learned Subordinate Judge are amply justified. 7. The result is that this appeal fails and is dismissed with costs.