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1938 DIGILAW 248 (ALL)

Iqbal Ali v. Mst. Halima Begam

1938-12-02

BENNET, VERMA

body1938
JUDGMENT Bennet and Verma, JJ. - This is a second appeal against the judgment and decree of the learned District Judge of Jhansi who reversed the judgment and decree of the Munsif of Jhansi. The Appellant was the Defendant in the action which was for a declaration that the marriage of the Plaintiff with the Defendant had been dissolved as the result of the Plaintiff having abjured Islam and having been converted to Christianity. As we have indicated above, the Munsif dismissed the suit but the learned Judge has decreed it. The Plaintiff's case was that she had renounced the Mohammedan religion and had been formally baptized as a Christian and that she believed in Christianity and no longer believed in Islam. She pleaded that her conversion ipso facto dissolved the marriage tie between her and her husband, the Defendant. The Defendant contested the suit and denied that the Plaintiff had been converted to Christianity and pleaded that in no case could the marriage tie be dissolved. The Court of first instance held that the Plaintiff had not as a matter of fact been converted to Christianity and that she was not in law entitled to the declaration prayed for. The learned Judge, on a careful consideration of the evidence, came to the conclusion that it was established that the Plaintiff had renounced Islam and had been baptised as a Christian. On the question of law, he referred to the case of Amin Beg v. Saman (1910) 33 All 90 and decided in favour of the Plaintiff. In the result he decreed the suit and granted to the Plaintiff the declaration sought by her. 2. The learned Counsel appearing for the Defendant Appellant has tried to attack the finding of the learned Judge that the Plaintiff has as a matter of fact been converted to Christianity. It is clear, however, that the finding is one of fact based on evidence and is binding on us in second appeal. 3. On the question of law, the learned Counsel has cited the views of Mr. Ameer Ali expressed in the Third Edition of his well-known work on Mohammedan Law. He is unable to support his contention by reference to any other book or authority. 3. On the question of law, the learned Counsel has cited the views of Mr. Ameer Ali expressed in the Third Edition of his well-known work on Mohammedan Law. He is unable to support his contention by reference to any other book or authority. The decision of this Court in the case of Amin Beg v. Saman (1910) 33 All 90, mentioned above is clearly against the contention of the learned Counsel and fully supports the decision of the lower appellate Court. We are in complete agreement with that decision and with the reasons contained in the judgment of that case. We may add that the same view has been followed in the latter case of Karam Singh v. Emperor 1933 A.W.R. 1, 868. Reference may also be made to the case of AIR 1934 976 (Lahore) , AIR 1936 666 (Lahore) , AIR 1938 482 (Lahore) and Abdul Ghani v. Azizul Huq (1912) 39 Cal. 409. 4. For the reasons given above, we dismiss this appeal with costs.