JUDGMENT Mukherjea, J. - This appeal arises out of a suit for dissolution of marriage commenced by a Mahomedan lady against her husband. Two grounds were put forward in the plaint in support of the Plaintiff's claim for divorce. It was said in the first instance that the Defendant husband treated the Plaintiff with the utmost cruelty which obliged her to leave the Defendant's house, and reside with her father. The second ground alleged was that the Defendant falsely charged his wife with adultery in connection with a criminal case that he instituted against the wife's father and some other persons, and this entitled the wife to have the marriage dissolved under the doctrine of lian as recognised by Mahomedan law. The husband in his written statement denied the allegation of cruelty made by the wife. He admitted having instituted a criminal case against the wife's father and others wherein he imputed fornication to his wife. He said that he did so as a suspicion was created in his mind by reason of the wife's own statements in a previous criminal case where she denied having been married to the Defendant and asserted specifically that she was married to Nazem Molla, about 7 or 8 years before. He was satisfied however that the aspersion was not true and he had no longer any doubt or suspicion in his mind as regards the fidelity of his wife. The Defendant further pleaded that it was really the Plaintiff's father who was at the back of the litigation and his only object was to get a dissolution of the marriage, so that he might marry his daughter in nicca form to Nazem Molla, who was the husband of the Plaintiff's deceased sister, and get some money from the latter. 2. The Munsif who tried the suit dismissed it. He was of opinion that the charge of cruelty was not established, and the allegations made by the Plaintiff on this point would not afford a ground for dissolution of marriage according to Mahomedan law. On the other point he held that the wife's own statement on a previous occasion that she was the wife of Nazem Molla, and not of the Defendant might have given the husband some justification for imputing infidelity to her. On the other point he held that the wife's own statement on a previous occasion that she was the wife of Nazem Molla, and not of the Defendant might have given the husband some justification for imputing infidelity to her. The accusation, it was said, could not have shocked the feelings of the lady to any appreciable extent and did not warrant a decree for dissolution of marriage. This decision was substantially affirmed by the District Judge on appeal. The District Judge held, inter alia, that when a wife appeals to a Court of law for dissolution of marriage on the ground that she has been unjustly accused of adultery by the husband, the latter is allowed a locus poenitentix before the marriage is dissolved and, as in the present case the husband made ample amends for the aspersion he cast on his wife's character and openly declared that the wife was a chaste woman, the Plaintiff's suit should be dismissed. The learned Judge held further that on grounds of public policy also, the Plaintiff was not entitled to a decree in the present case. 3. The propriety of the decision on both these grounds, has been challenged before me by the learned Advocate who has appeared in support of the appeal. 4. I may say at the outset that the second reason assigned by the learned Judge in dismissing the Plaintiff's suit does not impress me at all; what the Court has to consider is the policy of the Mahomedan law which governs the rights of the parties in the present case, and if that law allows the wife a right to dissolution of marriage in the circumstances of a particular case, the fact that the wife's conduct has not been irreproachable is not a relevant matter for consideration at all, unless the Mahomedan law itself recognises such conduct as a valid defence to such a suit. 5. The whole controversy therefore centres round the point, as to whether on the facts found by the Courts below, the wife is entitled to claim dissolution of marriage. 6. 5. The whole controversy therefore centres round the point, as to whether on the facts found by the Courts below, the wife is entitled to claim dissolution of marriage. 6. A lian as defined in Mahomedan law is "testimony confirmed by oath and accompanied with imprecation." According to pure Mahomedan law, if a husband accuses the wife of adultery she has the right to move the Kazi in the matter and the latter will then put the husband upon the alternative of either retracting the statement, or swearing four times by God that she is guilty of adultery and imprecating upon himself the curse of God, if he accuses her falsely. If the husband admits that he accused her falsely, he is liable to punishment for slander which was 80 stripes according to Mahomedan law; if on the other hand, he persists in the accusation and makes the necessary oath and imprecation he cannot be punished any more for slander and the wife is then called upon either to admit the guilt, or swear in the same mode that she is innocent with an imprecation upon herself if she be guilty. 7. If she admits the charge, she has to suffer capital punishment, but on taking the oath and making the imprecation she escapes it and on the husband and the wife having both made the lian the Kazi dissolves the marriage. (Vide Bailee, Chapter X, p. 335). 8. It is quite obvious that it is not possible at the present day to follow the strict letter of Mahomedan law relating to lian. The Mahomedan law relating to crimes, and the rules of evidence are no longer in force in British India. As was observed by the Allahabad High Court in Zafar Husain v. Ummatur Rahman ILR All. 278 (1919).: The Mahomedan Law of Evidence being no longer in force and the ordinary courts having taken the place of Quazis these courts are the authorities which should make a decree for divorce on being satisfied according to the ordinary rules of evidence that a false imputation was made by the husband, and it is unnecessary to comply with the formalities of Lian 9. It is well established now that a marriage can be dissolved only by a decree of the Court, and the Court has got to determine judicially whether a charge of adultery was or was not unjustly made. It is well established now that a marriage can be dissolved only by a decree of the Court, and the Court has got to determine judicially whether a charge of adultery was or was not unjustly made. It has been also held in accordance with the spirit of the Mahomedan law relating to lian that the husband has the right to retract the charge he made, though by doing so, he renders himself liable to punishment for slander [vide Rahima Bibi v. Fazil ILR 48 All. 834 (1926)] and on retractment of the accusation, the wife's suit fails. The purpose behind this principle of retraction is obviously to give the husband a locus poenitentix [vide Fakhrr Iahan v. Md. Amirulla ILR 4 Luck. 168 (1937) and Shansunnessa Khatun v. Mir Abdul (4)]. An unretracted accusation of this kind cannot but render conjugal affection impossible, but if there is a bond fide retraction, the Court should not order dissolution of the marriage. 10. These principles have not been disputed before me by the learned Advocates on both sides, and the point therefore narrows down to this as to whether there has been in this case a bond fide retraction by the husband, which would afford an answer to the Plaintiff's suit. To determine this matter, I will have to look first of all to the written statement of the Defendant. In paragraph 70, C.L.J. 289 (1939) of the written statement the Defendant stated as follows :-- It is true that this Defendant instituted a criminal case against the Plaintiff's father and other persons on 18th April, 1936, under secs. 498/352/343 of the I.P. Code. The Plaintiff's father and the Plaintiff herself, having before this, deposed in the Criminal Court to the effect, that the Plaintiff was married to Nadem Molla, and did not know the Defendant, it raised suspicion in the mind of the latter, and he instituted the criminal case under the influence of that suspicion. But the Defendant's statement was disbelieved by the Court and the accused were acquitted. The Defendant is bound in every respect by this just decision of the court and since then he does not harbour any suspicion as regards the character of his wife. 11. Again in paragraph (12) it is said... This Defendant loved his wife with all his heart and does so now. The Defendant is bound in every respect by this just decision of the court and since then he does not harbour any suspicion as regards the character of his wife. 11. Again in paragraph (12) it is said... This Defendant loved his wife with all his heart and does so now. The Defendant does not harbour any suspicion in his heart regarding the character of his wife To deprive this Defendant from the society of his lawfully married wife, the Plaintiff's father has instituted this false and vaxatious suit in the name of the Plaintiff. To refuse this innocent Defendant's conjugal rights with Plaintiff lady, which the law of marriage has conferred on him would be to put a premium on immorality and adultery. 12. The last sentence is in English, though the rest of the written statement is in Bengali. 13. From the above statements it would appear that the Defendant did indeed attempt to justify his making a charge against the wife, but he made no attempt to justify the charge itself. He takes the decision of the Criminal Court to be just and proper, meaning thereby that the wife was never immoral, and states unequivocally that he loved his wife all along and loves her still, and harbours no suspicion in respect of her character. It is true that there is no formal retraction or withdrawal of the charge, and the last sentence in the 12th paragraph which I have stated above, is somewhat equivocal, and may be construed to mean either that the Defendant still believes the wife to be guilty or that at any rate, he apprehends that further separation would lead to incontinence and immorality on her part. In either view, the sentence is not quite consistent with the tenour of the written statement taken as a whole, and it may be that it was put in that way by an over-zealous lawyer, who did not really understand what it meant. While deposing in Court the Defendant was quite specific. HS said that his wife was a good and chaste woman all along and he knew her to be so. While deposing in Court the Defendant was quite specific. HS said that his wife was a good and chaste woman all along and he knew her to be so. Of course if the husband knew the wife to be chaste and at the same time made the imputation, it would be an atrociously false accusation, but here again as I have said above, he tries to explain, why he at all made the charge, but his case never was that the charge was true. 14. On the whole I am inclined to hold that there was a bond fide retraction by the husband, of the charge of adultery he made against his wife. The learned Advocate for the Appellant has drawn my attention in this connection to certain statements made by the Defendant in answer to the Plaintiff's application for a temporary injunction restraining the husband from seeking restitution of conjugal rights. These statements are in the nature of general propositions of law possibly taken verbatim from certain text books and are to the effect that mere imputation of infidelity is not sufficient in law to annul the marriage. Nothing is said about the truth or falsity of the charge, and at the most it can be said that the Defendant did not retract the accusation at that stage. The written statement was however filed after that and if as I have said above, there was retraction in the written statement, it would be a complete answer to the Plaintiff's suit. 15. I am not unmindful of the fact that a Mahomedan wife has very limited rights to get dissolution of marriage and no Court should stand in the way of granting her a relief if the case substantially comes within the purview of the rules laid down in Mahomedan law. I think, however, that having regard to the true spirit of Mohamedan law relating to lian, as the husband has chosen here the alternative of substantially retracting the accusation and not of persisting in it, the wife's suit should be dismissed. The appeal is accordingly dismissed. 16. The parties would bear their own costs in all the Courts. Leave to appeal under sec. 15 of the Letters Patent is prayed for by the learned Advocate for the Appellant and is granted.