T O L .

Ly I ALLAHABAD s e r ie s 743

wlieii tlie appeal in the execution case was decided. A s ___

the result of that appeal, the respondents had both the
money and the propei’ty. They could not keep both. ^
Hence they offered to return the money. In the suit out ch.S d
of which the appeal has arisen the question we have to
decide is whether the respondents should have the pro­
perty or the money. This is, therefore, a proper stage
to raise the question. W e have held that tlie respondents
having decided to take the money cannot keep the
property.

W e accordingly allow the appeal, set aside the decree

of the court below and decree the appellants’ claim with
costs throrighout.

Before Sir Shah M'uhanimad Sidaiman, CJiief Justice, and

Mr. Justice Thom

A N IS BEG-AM a n d o t h e r s (D e fe n d a n t s ) v . M U H A M M A D 1933
IS T A F A W A L T K H A N ( P l a i n t i f f ) ® :

Muhainnuidan laiv— Restitutio?! of conjugal fights^—Prompt

dower remai/ning unpaid after cokabitation— Suit for resti­
tution not defeated therehy— Conditional df^cree— Poiver to
impose condition of payment or other equitahle or necessary
conditions— Legal cruelty of hiisbfind— Discretion of court-—
Interpretation of Muhammadan law— Infunction claimed
arjainst w ife’s relations— Burden of proof.

The absolute right of a Muhammadan wife to insist on the

payment of the whole of the prompt portion of her dower
before restitution of conjugal rights (except when the husband
wants to take her out on a journey to another town) is lost
after the consumma,tion of the marriage, unless the consum­
mation took place when she was a minor or of insane mind so
as to he incapable of giving consent.

Although the observation of MahmooDj J., in the case of

Ahdul Kadir v. Salima (1) was an obiter dictum, founded upon
=i“Pirst Appeal Ko. 234 of 1931, from a, decree of Raj Raissliwar Sahai, Subor­
dinate Judge of Bareilly, dated the 7th of March, 1931.
(1) (1886)
 744- THE INDIAN LAW R E P O E T S [V O L . L V

a too closel}' applied analogy of sale of goods and upon a mis-

ru le o f in te r p r e ta t io n o f th e M u h a m m a d a n la w , a n d
M uham m ad a lth o u g h te x ts an d c o m m e n ta r ie s o f a n c ie n t ju iis t s o f r e c o g -
n iz e d a u th o r ity c o u ld b e c ite d in su p p o rt o f th e o p p o s ite view ,-
Khan y e t it w o u ld b e d a n g e ro u s n o w to g o b a c k u p o n th e long' c o u rse
o f d e c isio n s w h ic h th r o u g h o u t India, e x c lu d in g Oudli, h a v e
acce| 3te d and f o llo w e d tlia t d ic tu m , an d tlie re b y to u n s e ttle th e
la w b y n o t a d h e r in g to th e w e ll recognized p r in c ip le o f stare
decisis.
There is no absolute rig'ht in a husband to claim restitution
of conjugal rights iigainst liis wife unconditionally; the courts-
liaA'C a discretion to make the decree conditional on the pay­
ment of her unpaid dower debt or to impose other suitable con­
ditions considered just, fair and necessary in the circumstances
of each case.
Under the Angio-Muhammadan law as administered in this
country a suit for the restitution of conjugal rights, though
brought for the enforcement of a right under the Muham­
madan law, is in the nature of a suit for specific performance,
and there is accordingly a certain amount of discretion in the
courts of justice which can impose a condition of previous pay­
ment of the dower debt or of a ]}ortion of it, in the decree.
In the particular circumstances of the present case a condi­
tion for previous payment of the dower debt was imposed,
having regard to the considerations that the amount of the
dower was not excessive or beyond the means of the plaintiff,
that the defendant had obtained a decree for dower in spite
of contest and the defendant, if compelled to go to live in the
plaintiff’s house, might find it very difficult to realise her
decree which would thus become futile, that the plaintiff’ s suit
was apparently by way of nullifying that decree, and that the
plaintiff had been guilty of legal cruelty to the defendant.
Where it was estaldished that the husband had been keeping
am istress in the same house with his wife and that, when
quarrels ensued on that account, he treated his wife cruelly^
the court, in a suit for restitution of conjugal rights, imposed
the Conditions that, unless the husband gave an undertaking
; not to keep any mistress in the house, a separate house should
i c jiuxided lor the wife, and two servants, of her choice, for
hci pt-isonal safety should iurther be provided for her.
Where an in]miction is claimed against the wife’ s relations^
to whose house the wife had gone for ,protedJion.a^d: safety, the
-VOL. LV ALLAHABAD SE RIE S j 4D

1^.33-0
onus is oil the plaiiitift* to prove that they are actually iiidiiCiiiM
the w ife a g a io s t G;oinG' to h er liusbaiid or preYentin.g h e r fr o m Ajs-r
doing so; th e mer-3 fact that they g a v e shelter a.nd protection ]^iuHAjvx5ut>
to h er cannot instih- f; decree fo r iniunction against them.
'' - '' ' VVAI.I

It is not a general rule oi interpreting the Mnhammadan

law that whenever there is a ditference of opinion between
Imam Abu. Hanifa and his two disciples the opinion of a
m a jo r ity o u t o f the th re e w ill prevail, or th a t th e opinion of
Imam Abu Hanifa w ill prevail over that of the disciples; there
is n o fixed rule of universal a p p lica tion in su ch cases. T£ one
firsds a question w ell threshed out and in la te r centuries a
particular interpretation a d o p te d by the le a d in g doctors and
t e s t -b o o k w r ite r s , it w o u ld n o t b e p r o o e r i^ow t o g o b e h in d
su ch a co n s e n s u s o f o p in io n and d e cid e a p o in t coiitiary tO: su ch
opinion, on the ground that the majority of th e three Imams
■favoured that view in th e earlier centuries. B n le s of p r e fe r ­
en ce w e re fo r th e g u id a n ce o f a n c ie n t ju rists, and the}^ are o f
n o h e lp w h e n th e r e is a clear p r e p o n d e ra n c e of a u th o r ity in
support o f o n e v ie w . But if in an y ca se th e la ter jurists h a v e
n o t a d o p te d in cle a r language an y o n e o f the conflicting
opinions, b u t h a v e m e r e ly sta ted th e conflicting opinions with­
out e x p re s s in g any p r e fe r e n c e fo r e ith e r , then it is implied that
th e c o n flict o f o p in io n w a s still continuing without any g en era l
c o n c u r r e n c e h a v in g b e e n a tta in ed , and it would then he o p e n
to ch oose w h ic h e v e r of th e opiuionB appears to be the sounder
an d b e tte r ad a p ted to th e conditions and th e n e e d s o f th e
■'times.

Mr. G. S. Pathali:, for the appellants.

Messrs. S. Muhammad Husain, Miilihtar Ahmad,
A. M. Khwaja and Mcisud Hasan, for the lespondent.
G. J. : — This is a defendants’ appeal
S u l a im a in ,
arising out of a suit for restitution of conjugal rights.
The plaiiitiff alleged that the parties were niEbnied in
1923 and the defendant No. 1 was sent to the plaintiff’ s
house in October, 1926, and began to live with liini
as his wife and gave birth to a daughter; but that about
tw'O years ago the other defendants took her away from
the plaintiff’s house to their own house for a week under
the pretext of attending a ceremony; that, when after
the expiry of the week j the plaintiff went to bring his
 746 THE INDIAN LA W RE PO R TS [v O L . L V

1933
wife, the defeiiclaiits made excuses niKl ultimately reiiised
AnisBkgam send her, altlioiigli they sent tlie plaintiff’ s daughter'
to tlie plaintiff’ s house. He accordingly prayed that the
wrri defendant should be ordered to come to tlie plaintiff’ s
ivifAiN 13^011^0 and that a perpetual injunction should be granted
against the other defendants from interfering with the
Suiakmv, defendant E o. I ’ s returning to the plaintiff’ s house.
The defendant No- 1 in her written statement asserted
that the plaintiff became immoral and contracted illicit
connection with one Mst. Hibia wlio was I'lept in the
same house and at her instigation the plaintiff began to
ill-treat the defendant and ultimately turned her out o f
liis house. She did not admit the paragraph contain­
ing the allegation tliat the daughter was sent to the
plaintiff’s house afterwards. She pleaded that when the
plaintiff neglected her and did not pay her dower debt,
she was obliged to file a suit to recover Es.15,000 as her
prompt dower and that the plaintiff’ s suit was filed by
Y\my of reply to her suit. She pleaded that so long as tne
plaintiff does not pay the prompt dower due to tlie defend­
ant, he is not competent to maintain the suit, and she'
also urged that the suit should be dismissed on the ground
of the plaintiff’ s cruel acts in ill-treating her and in
contracting illicit connection wdth Mst. Hibia, and that
tlie defendant’ s refusal to go to his house is through fear
: of life and hoiiour. She admitted that she was staying
away from the plaintiff’ s house at her own instance and'
no other defendant is exercising any influence OA^er her..
The other defendants denied that they were in any way
preventing the defendant from going to the plaintiff’ s
house..'.'
The learned Subordinate Judge framed four issues
II) Whether the plaintiff: had been guilty of cruelty
towards the defendant? (2) Whether any prompt clow ( r
was due to the defendant, and if so, can the plaintiff get
a decree without paying it? (3) Whether the p lain tif'
has any cause of action against the other defendants?"
TOL. L V ] ALLAH ABAD SE RIE S 747

(4) To what reiief was the plaintiff entitled and against ___ ______
whom? He decided all the issues in faYoiir of the. jilain- akis BsG.ai
tiff and against the defendants and decreed the claim. ivI t- h a s i m a d
All the defendants hare accordingly appealed. waS''^
It may be here stated that the suit for dower brought
by the defendant against the plaintiff succeeded in the
court below and the defendant, in spite of contest, Suimmm..
obtained a decree for Bs.15,000, which decree has become
final. Thus neitlier the amount of tlie dower debt due
to the defendant nor the fact that it has not been paid
is now ni question.
The learned Subordinate Judge, reiving very properly
on certain reported rulings of this Court, haa held that
after the consummation of her marriage the defendant’ s
right to resist the claim for restitution of conjugal riglits
was destroyed. Finding that legal cruelty was not
established, he has decreed the suit. He does not appear
to have considered w^hether apart from legal cruelty
there are any circumstances justifying the passing of
a decree conditional on the payment of the dower debt/
I propose to consider first of all the question whether
under the Muhanimadan law the right of a wife to insist
on the })ayment of the prompt portion of her dower
subsists even after consummation of marriage.
The leading case of this Court is undoubtedly that of
Ahclul Kadir v. Salinia (1). The judgment of M a h m o o d ,
J ., was adopted by the Full Bench. It has since been
regarded as a detailed survey of the Muhainmadaji law
with particular reference to the points noted on page 154,
viz., ( 1 ) the exact nature and effect of marriage upon the
contracting parties; ( 2 ) the exact nature of the liability
of the husband to pay the dower; (3) the inatrimonial
rights of the parties as to conjugal cohabitaiiion; and (4)
the ru.les of general law as to the, decree of the court in
such cases. But the only point that had been referred
to the Full Bench for an answer w^as “ Whether under
(I) (1886) I. L. R.i 8 Aiw 149.
 748 THE liNDIAN L A W RE PO E TS [V O L .. L V

the circumstances of the case the plaintiff had the right

asisbeqam to mamtain the suit.” In that case the dower debt
Mtthamiue liad not been paid before the suit for restitution of
conjugal rights, though the marriage had been consinn-
ivHAJ'T mated, but the amount was tendered in the trial court.
That court held that the plaintiff was entitled to succeed
.SvJmman in liis claim for bringing his wife to his house. On
G. J.
appeal, the District Judge accepted the defendant’ s
contention that the payment into court after the institu­
tion of the suit was insufficient because the husband had
no cause of action Allien he brouglit the suit, and it was
on this groimcl that he dismissed tlie suit in toto. The
main point which was for consideration before the Inill
Bench was, therefore, whether the non-pa3uuent of the
dower before the institution of the suit was fatal to tlie
suit because without such payment there was no cause
of action for suing for restitution of conjugal rights.
The opinion of the court was that it ia not correct to say
til at there was no cause of action and that non-payment
of the dower before the suit was not fatal defect. That
opinion is binding upon us. I am not aware that this
view has ever been c{uestioned in any other coiu’t.

But although we are bound to respect the expression

of Dpioion on the other points mentioned in the judgment
of that learned Judge, some of the observations made by
him are obviously in the nature of obiter dicta which he
had to make when surveying the whole law. It is, there-
fore, not possible for one to hold oneself bound by all
the observations that have been made or all the opinions
expressed in connection with all the four fields o f inquiry
■enumerated by the learned Judge at the outset. Nor
would it be convenient to refer to a Pidl Bench of five
or more Judges whenever any observation made therein
is called into question. Much less would such a eourse
be necessary if the observation of the learned Judge is
followed, though the reasoning on which it is based is
not accepted.
VOL. L V ] ALLAHABAD SERIES 749

l9;-53
Now at page 166 it was observed ; “ I take it as a
general rule of interpreting that law, that w h e n e v e r a n i s b e g a m
there is a difference of opinion, the opinion of the tAvo” muhammao
(out of the three Masters, namely, Imam Abu Hanifa
and his t\vo disciples) “ will prevail against the opinion
of the third.” A similar observation was made by the
same learned Judge in Agha Ali Khan v. A ltaf Hasan Suiaiman,
Khan (1). I do not think that the learned Judge meant
to lay down any inflexible rule which w'oulcl have
'Universal application. Presumably, w'hat he meant was
that ordinarily the opinion of the majority has been
accepted. But it would be easy to cite instances in
which the opinion of Imam Abu Hanifa alone has
prevailed, particularly in matters o f prayer and ritual, or
■of Imam Yusuf in matters of worldly affairs, or of Imam
Muhammad in matters of inheritance. There appears
to be no such invariable rule which would make the
decision depend on the majority of votes only.
Mr. Ameer Ali in his Mahommedan Law, volume II,
5th edition, chapter X I I , section III, page 460 has
pointed out that there is no such fixed rule, as over and
over again the opinion of only one has been adopted for
fatwas and decrees. In volume I, at pages 16-17, he
has quoted Ham^adia, Jam’ aa-ul Fusalain and Ka^i Khan
for the proposition that the joint opinion of the two
'disciples can be preferred to that of Imam Abu Hanifa
if the difference is due to a change of circumstances and
alterations in the conditions of mankind.
The learned advocate for the appellants has adopted
as part of his argument a well known judgment of 1891
delivered by Manivi Sami nilah, District Judge of Rae
Bareli, in which original authorities were quoted to
challenge the opinion o f M ahmood , J., both as regards
this rule of preference and also the distinction of the
right of the wife whose prompt dower remains unpaid
to resist restitution of conjugal rights even after consum-
mation. This judgment has been referred to by
(1) (1892^ I^. L. H., M All., 429 (44S).
 750 THE IN D iA N LAW REPORTS [v o l . LV'

1933 Mr. x\meer lUi as well as Sir Eolaud W ilson in tJieir

A k is B eg a si learned treatises. Tiiese authorities were subsequently
i’-
^ tij H A M M E D incorporated in tlie judginent of an Oudli Bencli in
ISTAFA,
W ali Wajid AH Khan v- SaJihawat Ali Khan (1). On pages
144-7 of tlie report in that case some of the texts have
been j’eproduced to show that, even in the case of a
Bida?m a,n, difierence, the opinion of Imam Abu Hanifa is to be
G.J.
preferred. Of course, there is no such general rule
either. As a matter of fact, there does not appear to be
any fixed rule : See Ivjcin All v. Bhagwant Kishore
(2). Different doctors have foUowed different rules of
preference. Those who were more orthodox and,,
generally speaking, more ancient, in many cases
preferred the solitary opinion of Abu Hanifa to even the
joint opinion of his disciples. There are later text-book
writers who have preferred the opinion of two as against
that of one. But such rules are helpful only when there
is no clear consensus. In the early days when new
points arose and the decision had to depend on an
inference drawn from other fativas or from analogy, it
^v^as open to the learned doctors to prefer one opinion over
the other vvdiich they considered more correct and
consonant with the other principles, inasmu-cli as the
three Imams were not law-givers but merely interpreters
of the law. But if one finds a question Avell threshed
out and in later centuries a particular interpretation
adopted by the leading doctors and text-book writers,
it would not be proper for us in the twentieth century
to go behind such a consensus of opinion and decide a
point contrary to such opinion, on tlie ground that the
majority of the three Imams favoured that view in the
earlier centuries. Such a course of action would unBettfe
the ]\Iuhammadan law. Eules of preference were for
the guidance of ancient jurists, and they are of no help
when there is a clear preponderance of authority in
vsupport of one view. It would be too late now to resort
to such rules in support of a new conception as to how
(1) (1912) io Oudli Cases, 127. (2) A. I. AIL' 180 (X87).;: ;
VOL. LV ALLAHABAD SERIES 751

a point onglit to haye been decid.ed, thongii contrary t o ___

accejifced opinion. Manlvi Abdiil Hai of Lucknow, the anisBegam
most renowned and learned Hanafi jurist of his time, aiaHAivrMAD
has in his Introduction to Sharah W iqayah dealt with
K han
this matter at considerable length. A good deal o f that
matter is to be found in Eadd-ul-Muhtar smiimarized in
Sir Abdur Eahini’ s Muhammadan Jmdsprudenco at Sulaiman^
O.J.
pages 187-5, which can he conveniently referred to.
H e has rightly pointed out that there is no accepted
rule that when there is a difference of opinion amongst
the founders of schools and their disciples, opinion or
ruling of a lawyer ought to be given according to the
opinion of Abu Hanifa, even if all his disciples differ
from him; and in the absence of any dictum of his in
accordance Avith the opinion of Abu Yusuf, then Muham­
mad, then Zufar and then Hasan Ibn Ziyad. Tf the
authorities were examined it vvill generally be found that
in some matters the solitary view of Abu Hanifa has been
preferred whereas in other matters the view of Abu
Yusuf, Muhammad or Zufar has been followed- Accord­
ing to Al-Hawi the correct rule was that in cases of
difference of opinion regard should be had to the authority
and reasons in support o f each view and the one which
has the strongest support should be followed. “ But
according to the modern interpretation of Taqlid
above stated a lawyer of the present day should, in such
cases, accept the \dew which according to the jurists of
the fourth, fifth, and sixth degrees is correct and has
been acted upon. But if in any case the later doctors
have not adopted in clear language any one of the'
conflicting opinions, the law is to be ascertained by
proceeding on the view which is most in accord with the
habits and affaire of m en.” (p. 188),

The Eadd-ul-Muhtar, volume I, page 73, states that

if on any matter no clear ansv\'cr from any one of the-
early jurists were to exist, and tlie later doctors Iiave
one opinion, then that should be adopted; but if they
 752 THE INDIAN LAW REPORTS [v O L . LV

__ 5 ’!^! ^ differ, then the view of the majority of those on wliom

akisBe&am well hnowii doctors like Abu Hafs, Abu Jafar, Abiil
MiiHAariiAD Lais, TahaT\d and others have relied should be accepted.
-^nd if a clear answer were not to exist from a..ny one of
Khan these later jurists, tJieii the Mufti should consider tlie
question carefully and try his best to arrive at a correct
Siduimmi, ccncliision so that he may be relieved of tlie chai’gc of
a j.
not having considered it fully.
Vf J 51

JjA? &3 jacxtj

It 'wbxiid follow that if jurists of the first rank have

differed among themselves but the jurists of the second,
third and fourth ranks have followed the opinion of one of
them, it would not be proper in later times to go behind
the opinion of these later juristic and prefer the opinion o f
the inaijority of the jurists of the first rank which has been
discarded by those of subsequent periods.
The proper course undoubtedly is to abide by the
opinions which have been adhered to in the commentaries
Avhich are of recognized authority in India and not to
deoide the point on any general rule of interpretation
based on the majority of votes of the ancient jurists.
Their Lordships of the Privy Council in the case o f
: Aga MaJwmed Jaffer Binflanim v. Koolsom Beebee (1),
remarked: “ But it would be wrong for the courts on a
point o f this kind” (the right of the widow to inherit)
“ to attempt to put! their own construction on the Quran
in opposition to the express: ruling of commentators of
such great antiquity and high authority” (as the Heday-i
and the Fa tawa Alanigiri). It is the practiice of the grea c-
(1) (1397) I. L. R„ 25CaK, 9(18). ■
TO I . L V ] AI.LAHABAI3 SERIES 753

commentators to state tlie difterence of opinion wliicli at __ _

one time prevailed on a particular point and then to add ANisBosGAai
on which view is the fatwa, or which is tlie more correct m u HAM M AD
or stronger view% or to use other expressions of like
import. But where the learned commentators content
themselves wdth a mere statement of the conflict o!‘
opinion wdthout expressing any definite opinion o f their Stdaiman,-,
ovvn in favour of one or the other view^ and Vvithoiit saying
anything about the consensus of opinion or tlie jatwa
being in accordance with a particular view, tliey imply
that the conflict of opinion vvas still continuing and that
no unanimity or general concurrence had till then been
obtained. This would have the effect of leaving the
question open. Tbe Qazi would then be free to choose
whichever o f the tvvo opinions appears to him to be the
sounder and better adapted to ihe conditions and the needs
of the times.

The Badd-ul-Muhtar, vohmie I, page 80, when repro­

ducing the text of the Durr-ul-Mukbtar has quoted from
Quduri as follow^s ; “ i\nd if you said that they (jurist^j)
bave sometimes quoted several opinions wnthout giving
preference and have differed as to their correctness : Then
I would say that we should act as they, having regard to
the change in the habits and conditions of men, did what
was m^ore convenient, practicable and better. And people-
who can discriminate are not extinct. This is a fact
and not an imagination. But those w^ho cannot discrimi­
nate should refer to those who can, so that they will be
free from responsibility.”

: J V (J-^H
5 I*-" 5 ^
^
 754 THE INDIAN LAW EEPORTS [v O L . L V

1933 Now before M a h m o o d , J., in tlie case of Ahdul Kadir

Im s begam V. Salima (1), no texts other tlian those of Durr-ii]-
MuhImmad Mnlditar, Fataiva AJaiugiri (and possibly Hedaya) whicli
Wam^ all state the conflict of opinion, without saying whicli
.Khan ^iew slioiild be preferred, were cited. The learned Jndge
accordingly felt compelled to make a deduction from
.SuMimmi, Certain principles governing sale of goods, and applying
C.J.
them to the conkact of marriage oljserved, at page 167 of
the judgment in M dnl Kadir’ s case, “ after consummation
o f marriage, non-payment of dower, even thougli
exigible, cannot be pleaded in defence of an action for
restitution of conjugal rights; the rule so laid down
liaviug, of course, no effect upon the riglit of the wife to
claim her dower in a separate action” .
If the observation was intended to mean that tlie
plea of non-payment of dower would not result in the dis­
missal of the suit, it has never been questioned. If it
was intended to lay dowm that under the Muhammadan
law the right to demand payment of dower before restitu­
tion of conjugal riglits is destroyed completely after the
marriage lias once been consummated, then it vvas an
olriter dictum in that case and thougli it must be treated
with all respect it may not be of binding authority. That
it was an obiter dictum is apparent from the very next
sentence which is to the effect: "B u t the rule enunciated
by me need not be applied in its fullest extent to the
present case, because, etc.” The line of reasoning based
on the analogy of sale lias naturally been very severely
■criticised at! pages 148-9 in Wajid Ali Khan’s case (2)
by the Oudh Bench, and so also by Mr. Ameer Ali in Ms
Hahommedan LaVv^ volume II, pages 459-60. No doubt
the Muslim commentators have, by way of illustration,
applied certain principles governing a contract of sale of
goods to the contract of marriage, but that was by way of
analogy only. The similarity cannot be pushed too far,
nor can the principles governing the sale o f goods br»
(1) (1S86) I.L.H.., 8 AIL, 149. (2) (1912) 15 Oa:lh Ca?33, 127. ,
VOL. L V ] ALLAHABAD SERIES 755

applied in all their details. Indeed, if one were to ___ _

pursue the analogy far enoiigli there would be a reducUo a^^isBeoam
ad ahsufdum. The contract ox sale of goods can be can- ?vii,HA3rBur*
celled if a portion of the price has not been paid, Even
if the goods have been once delivered the}- may in such an kha>?
event be returned. But if consummation o f marriage
has taken place and a part of the dower remains unpaid, Suiamimi,
G'.J.
it would be absurd to suppose that the marriage could be
cancelled by the wife at her will. Similarly, I do not
think that the learned Judge, when he referred to the
right of stoppage in transitu at page 166, at all intended
to apply that rule to the restitution of conjugal rights.
Such a right is exercised when the goods are in the
possession of a carrier or agent and are in the course of
transit, when the original owner o f the goods has only a
constructive and not actual possession. That doctrine
can, by no stretch of the imagination, be applied to the
refusal of the wife to go to her husband, as there can be
no question of tlransit or carrier at all.

It is quite obvious that the analogy of sales cannot be

carried too far. The marriage cannot be legarded as
purely a sale of the person by the wife in consideration
for the payment of dower and even if such a grotesque
analogy were to be carried to its fullest extent, it would
not necessarily result in support of the observation made
m Ahdul Kadif’ s ease. The answer will depend on
whether the dower is the consideration for the first con­
summation of marriage only or whether it is the
consideration for the society of the wife during the
married life. The mere fact that the whole dower becomes
<lue after consummation is no concltisive ground for
liolding that the dower is consideration only for the first
■consummation. The lien on goods sold may be lost when
possession is lost, but that lien is revived when posses­
sion is again recovered. Again, if part of the goods have
been delivered and part o f it is still retained^ the lien on
ih e part retained continues. It may therefore be well
 756 T H E IN D IA N L A W R E P O R T S VOL. L T

1933 argued that if the wife after the coiisimimation returns to

Nxs BEaAM lier own house she can still resist restitution of conjugal
MmzAmiAD rights SO loBg as her dower is not paid, because her right
has been revived after the cohabitation ceased. It may also
Khah pointed out that a prompt dower does not become pay­
able unless a demand is made. Prompt dowser is dower
Sidaiman, payable on demand. It follows that no demand might have
G.J.
been made, and in most cases it is not made before the
consummation o f marriage. The consent o f the wife
before her dower became due should logically not destroy
her right to recover her dowser after it has become due,
though previous to it consummation had taken place. She
should have the right to insisi: upon its payment before
further cohabitation. I have not mentioned these points
in order to base any conclusion on the analogy of sales,
but merely to emphasise that the analogy cannot be;
carried too far, and even if carried very far, it does not
necessarily clinch the matter. It may not be out of place
to mention here that Maulvi Samiullah collected some
authorities shoAving that a marriage is not regarded as a
mere civil contract, but as a religious sacrament.
The original authorities on the main question before us
may be grouped under three heads. Eor the sake of
brevity I am not quoting the original texts or their
translations if they have already appeared in the reported
judgment of Wajid All KJicm y Sal'haivat Ali lOian (IV
Under the /frst head come some of the ancient text­
books called M’atan.V These are very terse and concise and
generally state the opinion o f Imam Abu Hanifa on. thip
point wdthout even mentioning the difference of opinion
between him and his two disciples and consequently with­
out saying which opinion is to be preferred. These aro-
(1 ) The Bedaya, (2 ) The Tanvirul Absar; (3) The Kanz-
iid-Dakaik and (4) The Waqayatar-Eewaya. These are
all quoted in Wajid Ali Khan’ s case. No doubt in the^
early days there was a recognized -rule that the texfe
(1) (1912) lo Oudh Cases, 127. ^
VOL. LA'] ALLAHABAD SERIES 7o7
1933
biiould be preferred to commentaries and tliat comrneii-
taries should be preferred to collections of fataioas; but astisBecum
wlien centuries passed, the consensus of opinion of jurists
itnd doctors ^va,s often found to be contrary to some of the wixi
iineieiit texts. Accordingly the commentaries which
i:^tated both the opinions and then preferred one over the
other on the strength either of reason or ifnici gained Suimrmn,
greater strengtli. So much so that in later centuries the
jmcient text-books or matan canie to be regarded as ele-
nientai-y treatises in which the law is only concisely and
tersely laid down and the statement of the law contained
therein required further explanation. The Kaiiz-ud-
Dakaik (thongh of much later date) is particularly a book
of this description, as it is extrsniely concise. This
matter is discussed at length in Kadd-ul-Muhtar, a refer­
ence to which is also found in Sir Abdur Bahim 's
Muhammadan Jurisprudence on pages 189-190. The
author of Eadd-ul-Muhtar goes so far as to suggest that
cwen the Durr-ul-Miikhtar on which he was writing his
commentary should not be readily accepted on account of
its brevity.
Under the second group may he put the great com mer-
taries which discuss the law, state the difference of
cpinion and do not clearly indicate a preference for one
view and so in a way leave the point open.
(1) The Hedaya, which is the commentary on th -3
Bedaya by the same author, first quotes the text of the
Bedaya and then notes the difference of opinion betweei!
the Imam and his disciples, but omits to say which o f the
two should be preferred. (Hamilton’ s Translation,
volume I, book IT, chapter III, page 52).
(2) The Burr-ul-Mukhtar which is the comnientary on
the Tanvir-ul-Absar quotes the text of Tanvir-'ul-Absar
aud comments on it, giving some reasons. It does not
in express terms state its own opinion as to wliat is to
happen if consummation has taken place^ but by implica-
tion it adopts the text, particularly as it does not even
65 AD
 758 THE INDIAN LAW REPOKTS [V O L . L Y

mention the difference of opinion between the Imam and

AsisBegam the disciples. In Wajid A.U Khan's case (1) the text of
Mtjhamhad Tan^ir-ul-Absax has been correctly quoted, but there ha.s
been a little confusion in quoting the text of the Durr-u]-
khax Mnthtar. What has been quoted includes again the
words of the text o f Tanvir-ul-Absar interspersed with
Sidaiman, the commeiits o f the author of the Durr-uI'Mukhtar. Tlie
C J> - .
author merely attempts to explain the obscure words. He'
does not purport to discuss them.
(3) The Bahr-ur-Eaik v^diich is an elaborate commen­
tary on the Iva.nz-ud”I)akaik (yolume 3, at page 191,
Egyptian edition) quotes the difference of opinion, but
does not clearly express the view that the opinion of the
disciple is to be preferred. But on page 192 it quotes
Eazdavi, who attained the position of a mujtahid of the
third rank (Sir Abdur Eahim ’ s Muhammadan Juris­
prudence, page 183), to the effect that Abui Qasim Saffar
gave fatioa against the right of the wife to resist restitu­
tion after consummation and says that Bazdavi con­
sidered that opinion to be good
I <] f

Hlb IaI wa,-* tCl? ^aI c- ^ lg«*s.3

I f

, / ^ r- , j

(4) The Shara Wiqaya, which is a commentary on the-

Waqayatar-Eewaya, quotes the text on which it com­
ments, and then just mentions the difference of opinion'^
but omits to express any preference o f its own.
(1) (1912) 15 Oudh Cases, 127.
VOL. l y ] a lla h a b a d se r ie s 759

(5) The author of Fath-ul-Qadir, which in its turn i s __

a great commentary on the Hedaya, also states the differ- AmsBEa.AM
ence of opinion^ but omits to give his ovvu opinion as to MmiAMMAD
which -view should be preferred. Although it is an
exhaustive commentary, it deals with this point rather
briefly, and does not even refer to Salfar or Bazdavi.
( 6 ) Tahtawi, a great commentary on the Durr-ul-
Mukhtar, also quotes the difference of opinion and refers
to the jativa of Saffar, and says that Bazdavi considered
it better, but does not express its own preference (Book
on Marriage, chapter on Dower, page 99, Calcutita
edition).
*5^ X.S3.k-a

_ UjJftS u$
(7) The author of the Eadd-uI-Muhtar (more com­
monly known after its author Shami), another and more
exhaustive commentary on the Durr-nl-Mukhtar
curiously enough deals with the matter briefly, gives the
difference of opinion between the Imam and the disciples,
without mentioning Saffar or Bazdavi. He does not
state his own conclusion as to which of the two opinions
should be preferred.
(8 ) Under this category I may also mention the follow­
ing; fatawas in particular : (i) Fataiva Kazi Khan. It
fjuotes the difference of opinion, but omits to express any
preference (15 Oudh Gases, at page 134); (ii) Fatawa
!Alamgiri. Baillie’ s Muhammadan Law, volume I, page
125 gives a correct translation of the relevant passage in
the except perhaps the last sentence in which the
original word “ B a’ z ” has been translated as ‘several’ ,
though it would be more correct to say ‘ some’ ; but here,
too, after quoting the practice o f Shaik-us-Saffar, the
compilers omit to add on which view the fatawa should
be given.
 760 THE IN DIA N 'LA W REPOET>S [ y O L .' LV

____ Otlier ancient text-books like Qaduri do not refer to the

aotsBbqam difference of opinion at all.
V.
Jn tlie third group may be placed some books wliicli
Wali prefer the opinion of tlie disciples. I am not quoting
ivHAw ng |3O0 i^g of overriding aiithorit}^ but merely to point
out that the jatcmas have not been all one way.
EMavncm, (1) Patawa G-liiyasia (chapter on marriage, page G5,
line 19, Egyptian edition) says; “ I f a w ife were to
submit her person without obtaining her dower and then
wdsh to refuse to cohabit with, him until she recover her
dower when he has cohabited with her, tlieii in this there
is a well known difference. But the opinion to be
adopted is that she has not this right, but slie can demand
from her husband the promptl dower.”

(2) The Ja.mi-iil-Emmiz wliieli is a commentary on

Mukiitasar-ul-Waqayah by Sadrus-Sharaya, says
(volume II, page 211, JSTawal liishore edition): “ And
Abul Qasim-us-Saffar gave /ataz^Yi on the absence of the
righ.t to refuse cobabitation, and according to liis
(Im am ’ s) opinion on the right, to refuse to go out on
journey, and on this is the fatmm as is mentioned in
the Haq^aiq.’ V It is possible to urge that the
language o f the text is capable of the interpretation
that “ this” refers only to the refusal to go out on
journey.

jCij
(3) Fatawa Plimadya quotes Umdatul Patawa wd^^^^
does not refer to the case of consummation. Similarly,
the quotation from Fatawa Mufti has iio reference to con­
summation (see 15 Oudh. Gases, page 135). The learned
TOL. L V ] ALLAH ABAD SE R IE S 761

1933
Judges o f Oiidli thought that Himadya quotes a passage
from Tahzib which states that “ although she has once Begam:
cohabited w illindv
O vrith her husband,' she has a rioiit
O of muhambub
r
refusal contrary to the view of the Sahabain” . But the w.Vxt
learned Judges seera to liave overloolved that the passage
goes OD to refer to the opinion of Qasim Baffar and then
the o])inion of the author of Tahzib is stated iu the follow- StiMmian,
iog terms ; "T h e approved view according to me is that
the wife possesses the right o f refusal if there has been
iU-ii'catvDient on the part of the husband, and if it be the
fault of the wife, then she lias no such right,”

It would, therefore, follow that the Tahzib is against

there being any ab'-olute right of refusal in the wdfe. On
the other hand, she is given that right only wdien the
husband has been ill-treating her. This might be a very
comrnonsense view to take, but there does not appear to
be any further support for it. But in any case Tahzib
cannot be cited as an authority in favour o f the w ife’ s
ri ght. I f anything, it is an -lutli ority agai nst such right.
(4) In this connection I ought to mention Fatawa
Maulana A_bdul Hai, wdio was imdoubtedly the most
learned Hanafi doctor in India in his time, fatmvas
cannot be put on a par with the recognized commentaries
or fatawas. I propose to cite his fatawa in order to show^
the trend of opinion that has prevailed in this country.
His fatawas are even now freely referred to and relied
u p on by Maul vis when easy access to the original authori­
ties in Arabic is not to be had,
Fatawa No. 197 (1296 A .H . corresponding to 1878)
Yolurae I, page 240, is particularly important. It may
be briefly summarised as follows :
A Bimni woman, Ilinda, was married to a Sbia hus­
band, Z aid, and the marriage was performed according
to the Shia form. After having cohabited and lived with
 762 THE INDIAN LAW REPORTS V O L. LV

1933
her husband for some days, Hinda returned to her
anisBegam mother’ s house with her husband’ s permission and then
muhmad remained there demanding her prompt dower. Zaid
IST/iFA
Wali ieared that she might become immoral. The question
KrUN put to the Maulana was whether Zaid could, according
to his rehgion, bring her to his house without payment of
prompt doAver in accordance with the opinion expressed in
.tSidainmi,
G.J. the Shia text-book, Sharay-uI-Ishim, ahihough according
to the Heda,ya there appeared to be some difference of
opinion. The answer was that the husband can take
away the wife without payment of her dower debt, and
for authority Bahr-ur-Eaiq was cited which quotes tlie
opinion of Bazdavi who referred to the fativa of Abul
Qasim Saffar.
It thus appears that the older text-books no doubt pre­
ferred the opinion of Abu Hanifa as against those of his
disciples,, so much so that they did not even care to
mention the difference of opinion; but the later comnien-
Tators pointed out that the disciples had differed from the
opinion and also noticed that jurists like Bazdavi and
Saffar had not followed Abu Hanifa strictly; but these
commentators omitted to express their own definite
opinion as to which view should be preferred. On the
other hand there are, a1i any rate, some authorities which
definitely preferred the opinion of the disciples to that of
Imam Abu Hanifa. It is obvious that though in the
earlier centuries the view of Abu Hanifa was generally
accepted, the divergence from it became more pronounced
in later times. Even down oo the time of Aurangzeb in
India, when the Patawa Alamgiri was compiled, the
conflict of opinion continued and no definite consensus of
opinion seems to have been reached, otherwise it was
inost probable that the approved opinion would have been
mentioned.
This being the state of the authorities,, the question is
whether the obiter of M a h m o o d , J . , Avhich has
been accepted by so many other High Courts, is to be
followed.
YOL. L V l ALLAHABAD SERIES 783

Had I been sitting as a Judge in tlie times of tlie East 1933

India. Company, I might then possibly liave been inclined-A.^'is

to prefer the opinion of Imam Abu lianifa, because
ISTAPA
although a conflict ensued afterwards no eminent com­ _W ali

mentator expressly dissented from that view. . But if Kh.4N

another Judge had been prepared to take the contrary
view, I would not have been in a position to say that he Sidahnan.^
GJ,
was necessarily wrong. The two considerations which
might well justify the acceptance o f the Yiew of tlie
disciples in India are : First, ' that ovvdng to tha
prevalent practice, the amounts of dower fixed in this
country are often unduly high and beyond the means of
the husband. To alloAV to the w ife the right of refusing
to live with her husband, even after consummation, so
long as any part o f the prompt dower remains unpaid
would, in many cases, where the husband and wife
Cjuarrel, amount to an absolute option to the wife to refuse
to live with her husband and yet demand a maintenance
fillowance. This would dislocate domestic life. Secondly,
as Avill be shown hereinafter, under the Anglo-Muham-
madan law as administered in this country a suit for
restitution o f conjugal rights, though brought for the
■enforcement of a right under the Muhammadan law, is
in the nature of a suit for specific performance, and there
ia accordingly a certain amount of discretion in tlie courts
of justice which can impose a condition of previous pay­
ment of the dower debt, or, at any rate, a portion of it,
in the decree.
And now the position is still stronger. ]^or nearly 40
years the observation o f M a h m o o d , J., even though an
ohiter dictum, has been accepted in this Court; and indeed
it has been followed by all the other H igh Courts
excepting Oudh : KunM y . Moidhn (1 )’ Hamidunneiisa
BiM Y, Zohvruddin Sheiyh Bai Hansa v. Ahdulla
Mustafa (d); Ashia Khatooyi v. Ahdul Halmn Maistry (4)
and Mst. Saleli (5).
(1) (1888) I. L. R., 11 Mad., 327. (2V (1890| I. L. R., 17 Cal., 670.
(3) (1905) I. L. R., 30 Bom., 122. (4) A. I. R., 1929 Rang,, 189.
(5) [1889] Punj. Bee., No. 164.
 764 THE INDIAN LA W REPORTS [\’ 0 L . LV

isjiia q£ Karim Khan y . Mst. Ghiioti (1) a

ANisBEGAar leariieci Judge of this Court followed an earlier decision in
itiuHAMMiiLB tlie case of Wilaijat Husain v. Allah Raklii (2), wliicli liad
been overruled by tlie Full Bench. But apparently the
khaij (Attention of the learned Judge was not drawn to the
observation in the Full Bench case as there is no reference
StiMmcm, to it in liis judgment. On the other hand,, a Division
CJ.
Bench of this Court in the case of Hijahan v. Ali Slier
Khan (3) adhered to the view expressed in Ah did Kadir's
case.
Numerous cases must have been decided, though not
reported, on the assumption that the Auew of the disciples
is to be preferred. When the law has been interpreted in
a particular way, it may well be that in some cases the
law governing the rights of the parties to a marriage was
implied as a part of the terms of the contract of marriage.
No doubty in Oudh, a Bench of ttat court ha,s taken
a contrary view, but the Oudh Court was not bound to
folloAV the opinion expressed by the Full Bench o f this
Court; and further, in Oudh, the difhculty of a wife
insisting on the previous payment of an unreasonably
high dower, which is beyond the means of her husband,
does not at all arise, for under section 5 o f the Oudh Jjaws
Act the courts of Oudh have power to reduce the amount
o f the dower debt if it is ‘ ‘excessive with reference to the-
means of the husband” , though in fact agreed upon. It
also appears that the authorities placed before the Oudh
Court AA^ere those quoted in the judgment o f Maulvi Sami
Ullah and were all one Avay. The authoritieB in support
o f the contrary Adew were apparently not cited beforo'
them. Nor is it clear that the effect of the point having
been left open in the latev commentaries w^as puif
prominently before the learned Judges,
It is true that in the other High Courts'the question
has not been re-examined in the light o f the original
authorities, but the obsiervation of M a h m o g d , J. , ha&
(1) AA^eakly Notea, 1906, p. 136. (2) (1880) I. L. B .. 2 All., 831.
(3) (1921) 19 A. L. J., 880.
TO L. L V ] ALLAH ABAD SE E IE 8 765

1933
been siniply followed. It is also true that a Bench of
the Calcutta High Court iii Ha'inidiinncssa Bihi's case
( l y , one m e m b e r of which, P :e t b : e r a j I , C. J., had l)een MuHA^iarAD
a party to the Pull Bench of Allah all ad in Ahdul K jidifs Wali’
case, thought that according'to the Fatawa Alamgiri the
practice of the later jurists was to follow' the two disciples;
whereas, in point of fact, the Fatawa Alamgiri also in Sidmm-m,.
one sense leaves the matter open. Bui the fact remains
that tin’oughoiit Inilia, excluding Oudli, the same view
lias [irevailed for several decades.
I t h e r e fo r e c o n s id e r th a t it would now be dan gerous
t o g o baclv u p o n t h is c o u r s e o f d e c is io n s a n d n o t to a d h e r e
to the w e ll r e c o g n iz e d principle of stare decisis,
p a r t ic u la r ly w h e n a t t h e t im e w h e n A I a h m o o d , J . , m a d e
h is o b s e r v a t io n it w a s t o s o m e e x t e n t o j)e n to h i m to
p r e fe r the v ie w o f the d is c ip le s .

In this view of the matter, I hold that the rule laid

down, in Abdtd'Kadif s case (2), though an obiter dictum,
must be followed even though the analogy of sale may
not be accepted. It may be re-stated as .follows ;
The absolute right of a wdfe to insist on the payment
of the ’^’idiole of the prompt portion of her dowser before
restitution o f conjugal rights (except wdien the husband
wants to take her out on a joimiey to another town) is
lost after the consummation of the marriage, unless the
consummation took place when she w^as a minor or of
insane mind so as to be incapable of giving consent-
Just as we respect the observation made as regards the
loss of the right of the wife on consummation, even
though it be an ohiter dictum, we must in the same way
respect the other observation-—though an equal ohiter
dictimir-^mack m AhdM Kadi)^^ case that ‘ ‘ Courts of
justice in India, in the exercise of their mixed jurisdic­
tion as courts of equity and law, are at full liberty to
pass conditional decrees to suit the exigencies of each
particular case. ’ ’ (page 169). ]\Ta h m o o d , J. , midotibtedly
(1) (1890) I.L.R., 17 Cal., G70. (2) (1886) I.L.R., 8 AH, 149.
 7r»6 THE INDIAN LAW REPORTS [v O L . LV

__ lield that tbe loss of the absohite right of the Avife to

ams Begam xesist the claim for restitution of conjugal rights did not
MuHAMTvrAD prevent the court from making the previous payment of
Waxt the dower debt a condition precedent to the execution
ivhan fiecree for restitution of conjugal rights. At page
157 it was observed: “ That the latter right” (the
Sidmman, right) of dower) “ may modify and aifect the former”
(right of cohabitation) “ cannot be doubted; how it
affects and modifies it is the main subject of this refer­
ence.” The observation at page 160 shows that the
contention for the Avife was that the right of cohabitation
does not accrue to the husband at all until he has paid
the prompt dower. The observation at page 160 Isas
already been quoted. At page 170 it was stated : “ It
is one thing to say that such a defence may be set up
under certain conditions; it is a totally different thing to
say that until the dower was paid no cause of action could
accrue to the plaintiff. The payment of dower not being
a condition precedent to the vesting of the right of
cohabitation, a suit for restitution of conjugal rights,
whether by the husband or by the wife, would be main­
tainable upon refusal by the other to cohabit wdth him
or her; and in the case of a suit by the husband, the
defence of payment of dower could, at its best, operate
in modification of the decree for restitution of conjugal
rights by rendering the enforcement of it conditional
upon payment of so much of the dower as may be
regarded to be prompt.” Similarly at page 171 the
conclusion was ; “ So that, pushing the analogy of the
law of sale to its fullest extent, the right of a Muham­
madan wife to her dower is at best a lien upon his right
to claim cohabitation, and I am unaware of any rule of
Muhammadan law which would render such lien capable
of being pleaded so as to defeat altogether the suit for
restitution of conjugal rights.”
It is thus clear that the learned Judge was prepared
to make the decree for restitution of conjugal rights condi­
tional upon the payment of the dower debt. This, for
^ :0 L . L V ] A L L A H A B A D SE PJE S 767
1933
all practical purposes, would amount to iiplioklmg the
ria'lit of the widow to claim her do'.ver, even though Begam
consummation of marriage has taken place, the only MtniAMsrAB
difference being that the power of the court to impose w it/
sucli terms is held to be based on tlie general rules of
justice, equity and good conscience and not on the strict
principles of the Muhammadan law as now interpreted. Suiaimmi,
C/-.Jm
This view was accepted by the Punjab Chief Court in
the case of Mst. Scdeli Bihi v. Eafi- IJddin (1); and the
passing of a conditional decree was approved by a Bench
of this Court in the case of Hijahcm v. AU Sh-er Khan (2).
No doubt no conditional decree was passed in the case
of Kunhi \\ Moidin (3) nor in the case of Hamidunnessa
Bibi V. Zohiriiddin Shdk (4). But the point does not
appear to liave been raised in those cases. Nmvah
Wazir Jahan Begam v. Nci'wab Haidar Raza Khan (5)
was apparently a Shi a case.

It is argued on behalf of the respondent that the

husband has a substantive right to claim restitution of
Gonj ugal rights after con summation, even though the
dower has not been paid. It is said that this right is
not a matter of mere procedure but is a substantive riglit
under the Muhammadan law which the court has no
discretion to refuse. Their Lordships of the Privy
Council in the case of Mooyishee Biizloor Ruheem v.
Shimisoonnissa Begam ( 6 ) observed that a suit for
restitution of conjugal rights, though in the nature of a
suit for specific performance is in reality a suit to enforce
a right under the Muhammadan law and the courts should
have regard to the principles of Muhammadan law.
The Gbservation o f their Lordships was directed to
“emphasising the point that courts should not exercise
their discretion in complete supersession of the Muham­
madan law, but that in exercise of their discretion they
■should refer to that law. But the principle was fully
(1) [18891 PunJ. Rec., No. (2) (1921) 10 A . I j. J., 880.
(3) (18SSy L L. R., 11 Mad., 327. (4) (1890) L L. 11., 17 Cal., 670.
(5) (1905) 10 Oudli Caisea, II. (S) (1S07) 11 Moo. T. A.. 551.
 768 TH E INDIAN LAW REPORTS VOL. LY

ii)33 recognized that in passing a decree for the restitution of

Ams begam conjugal rights the court has power to take into account
Muhammad all tlie circunistances of the case and impose terms whicli
I stafa.
W ali
it considers to be fair and reasonable.
Khan
The rule may, therefore, he re-stated as follows :
There is no absolute right in a husband to claim
Salnhiit;7>,
OJ. restitution of conjugal rights against his wife uncondi­
tionally; the courts have a discretion to make the decree
conditional on the payment of her unpaid dower debt or
to impose other suitable conditions considered just, fair
and riecessary in the circunistances of eac]:i case.
Applying these principles to the case before us I would'
hold [hat the condition of the previous payment of the
dower debt should be imposed on the decree for restitu­
tion of conjugal rights, if passed. My reasons are as-
follows ;
(1) There are original texts of unquestionable authority
where such a condition has been directed.
(2) The amount of the dowser debt is not excessive, and
there is no suggestion that it is in any way beyond the
means of the plaintiff who claims to be related to the-
late Kawab o f Eampur-
(3) The present plaintiff had contested the defendant’ s
claim for dower, and in spite of his contest the defendant
obtained a decree which has now become final.
(4) The present suit was instituted after the institu­
tion o f the suit for dower, and if the defendant is
compelled to go to live in the plaintiff’s house she may
iind it very difficult to realise her decree for dower which
would in that event become futile.
(5) The plaintiff had remained quiet and did not sue
for restitution of conjugal rights till the claim for dower
had been made in court and there is ground for apprehend­
ing that the suit is by way of nullifying the decree fo r
dower. As a matter of fact, the decree for dower was--
TOL. LV ] ALLAHABAD SERIES 769

attacliecl by the plaintiff in execution of iiis decree f o r ___

restitution of conjugal rights when the defendant refused -Ajriabeg^m
to obey the decree. M oham m ad
Ls t a f .1
(6) The conduct of the plaintiff as disclosed by the
finding on the next point makes it fair and just that he
should be called upon to pay the dower debt before he
has possession of his wife. Sniniman,
The neo)t question is whether the defendant succeeded
in establishing legal cruelty which would disentitle the
plaintiff from claiming restitution of conjugal rights.
That question is one of fact and depends mainly on oral'
evidence.
The learned Subordinate Judge vvho hea,rd the
witnesses has recorded a clear finding against the defend­
ant. It lias to be conceded that the Subordinate Judge
was in a better position to judge whether the statements
o f the witnesses were credible, because he was in a
position to mark their demeanour which wey who have
to go by the written evidence only> are not. I would
accordingly be most reluctant to take a view contrary to
that held by the Subordinate Judge, but as it is not only
a mere question of a right to property but of coHipelling
the defendant to go and live with her husband against
her will, when there may possibly be an apprehension
of danger to her life or person, it is onr duty to examine
the evidence afresh, and satisfy ourselves that the finding
of the court below is correct. The points to which the
learned Subordinate Judge has not attached due weight
€r which he has altogether overlooked are the follow-

(a) W hen the question is of the husband’ s cruel treat­

ment towards his wdfe, evidence o f a large number of
witnesses Gannot be expected to be forthcoming, and
ranch will depend on the statement of the wife corro­
borated by the circumstantial evidence, particularly when
the cruelty is alleged to have taken place inside the
house Of her husband.
 770 THE INDIAN LAW REPORTS [v O L . LV

(6) In the written statement the defendant had

anisBeg.uvi specific allegations as regards the keeping of Musammat
mtjh.« mad Hibia as a mistress inside the house and her own ili'-
treatment by her husband. This gave sufficient
opportiinit,y to the husband to produce rebutting evidence.
(/') Although the learned Judge has held that the
Suleiman, failed to prove any legal cruelty against
her, the positive finding recorded by him only amounts
to saying tliat she has tried to exaggerate her allegations
]>ecaiise her dower was not paid.
(d) Dealing with the witnesses, the learned Subor­
dinate Judge has said [A portion of the
judgment dealing with the oral evidence and the
criticisms of the lower court on it is omitted h ere/
(i) The most important circumstance, which has
appealed to me,, has been entirely ignoi'ed by the Teamed
Subordinate Judge. There is the outstanding fact that
the dauglitei of the parties is with her fatlier and not
with her mother. Paragraph 2 of the plaint admitted
that the daughter was born after October, 1926; and the
plaintiff at the end of his examination-in-chief stated
that the daughter at the time was one and a half years
old. Under the Muhammadan law the mother has the
right to the custody of the person of her daughter till
she attains puberty. The plaintiff has no female relation
in his house except his m.other, who admittedly has a
touch of insanity. The fact that tlie husband and the
wife are living separately and in different houses, but
that their girl, aged 1|- years, remains with the father
is a startling fact, the significance of which has been
overlooked by the court below. ■
O') It is to be seen how the parties have tried to
explain this significant circumstance. According to the
plaintiff the wife was taken away by her relations on a
pretext and she took her daughter with her; but later
on they refused to send back the wife to the plaintiff,
but returned his daughter. According to the defendant.
VO L. L V ] ALLAHABAD SE RIE S 771

1933
she was ill-treated by the plaintiff and was ultimately
turned ont of the house by being placed in a conTeyance Akk Begam
called tJiela (a covered vehicle driven by one or more MaHAaauB.
coolies) and sent to her house which is close by, but the ' wam
K fi:A 5T
daughter was taken away from her by force and not
sent with her.
Sidaiman,,
C.J.
(k) It seorns to me that when the ordinary feelings of
a mother are home in mind and when under the law
the wife is entitled to the custody of her minor daughter,
particularly when she is of such tender age as to
requu’e nursing and suckling, it is most difficult to
believe that the mother and her relations would be so
steel-hearted as to take away the infant from the breast
of her mother and send her away to her father’ s house
where there is no female relation who would he capable
of looking after her comfort and safety. On the other
hand, it is not at all improbable that if there is a serious
quarrel between husband and wife and the husband in
anger turns his wife but and forcibly puts her in a
conveyance and sends her away, he may, in order to
injure her feelings all the more, keep back their daughter,
retain her in his house and not allow the mother to take
her away with her. In my opinion the fact that the
girl iias remained with the husband strongly points to
the conclusion that the wife was compelled to leave the
husband’ s house and to leave her girl behind against her
w ill, and not that having left her house with her girl
in perfect harmony she voluntarily sent the girl back
to her husband afterwards.

In view of all these circum^stances I am compelled to

hold that the Ifearned Subordinate Judge has not
appiucinted the seriousness of the evidence that was led
befoie Inm and has been led away by unjustifiable
considziiations to think that the defenda.nt’s story was
grossly exaggerated and that there was no case of legal
cruelty.
 772 TH E INDIAN LAW REPORTS [v O L . LV

___^ ___ In fairness to him it must be pointed out that there

-AiiisBBaAM ip, certainly a possibility that the story told by the defend-
Muhammad ant that she was beaten with latMs and shoes might
not be true, but I have no hesitation in holding that the
ivHAjr Hibia, a mistress, was kept in the same
house with the w ife is fully established and I do not
^Suimman, believe the denial made by the husband nor do I accept
the statements of his two brothers, who, admitting the
presence of Mst. Hibia in the house, tried to explain it
away by saying that slie w'as a mere maid-servant of the
insane mother. These brothers do not live in the same
part of the house and are therefore not in a position to
know about the relations between the husband and Mst.
Hi]}ia to tJie same -extent as the wife living under the
same roof w^ould be able to see for herself. "Further, I
think that in view of the claim for dower brougl it by
the wife these brothers are supporting the plaintiff. I
have no hestitation in. holding that the husband
misbehaved in this way that he kept a mistress in his
house along with his wife and caused mental pain to
her in consequence and that he must liave, when quarrels
ensiled, treated his wife cruelly; and that as the quarrels
were not and could not be patched up, so long as Mst.
Hibia remained in the house, the defendant No. 1 had
reasonable apprehension of injury to her person.
I think that the wife is fully justified in refusing to
go and live with her husband so long as there is no under­
taking not to keep any mistress in the house; she can go
t o : live.with him only if a separate house is given to
her. Further, I think that in order to protect her safety
it is necessary that she should have the option of keeping
one female servant and one male servant, according to
her choice, in the house. M i. Khwaja on
husband agrees-to the last mentioned conditions. ^ '
A s regards defendants Nos. 2 to 5, the learned
Subordinate Judge has >quite wrongly thrown the
burden o f proof upon them. The point made against
them is that they did not agree to depose on oatli rthaii
VOL, L V ] ALLAHABAD SERIES 773

they had not taken a-^'ay Mst. Anis Begam and that they 1933

did not produce any evidence to prove that they did not akis begam
accompany her from the plaintiff’ s house or that they muhammad.
were wilhng to let Mst. Anis Begam return to the phiin- ISTW
AFA
ali

tiff. The learned Subordinate Judge says that lie does liH A N
not believe that if the defendants Nos. 2 to 5 were not
interfering, Mst. Anis Begam would not have returned Sulaiman,
GJ.
to the plaintiff for such a long time. I think that his
conclusion is quite unjustifiable. When the defendant
was treated in the way she was, it is natural for the
defendants to offer her protection. It is unthinkable
that when a daughter comes back to her parents’ house
seeking protection from the ill-treatment of her
husband, the parents would close theu' door against her,
or that when the husband comes and demands back his
vvdfe they would forcibly and against the Avill of their
daughter send her back to her husband’ s house. No
decree for injunction can be passed against them unless
it is clear that they are not only offering protection to
their neglected daughter, but that they are actually
preventing her from going, or, at any rate, inducing her
not to go to her husband. The efvidence on this point
is almost nil. There is the solitary and vague state­
m ent of the plaintiff that the defendants are keeping
away his wife in order to press him to transfer his pro-
iperty to her. This is merely an inference or perhaps
an explanation why he has impleaded these defendants.
This was not put to the w ife when she was in the
witness box. As a matter of fact, Mst. Anis Begam
distinctly stated that it was incorrect to say that her
father, paternal uncle, brother or maternal uncle
brought her from her husband’ s house and categorically
stated that these people do not prevent her from going
to his house. The fw o witnesses produced by the pM n-
tiff dp not allege that the other defendants have done
anything to prevent the defendant from returning to
her husband’ s house. The evidence against the defend­
ants is therefore nil, and I am surprised that the
5 6 AD
 774 TH E INDIAN LAW REPORTS [a^OL. L V

1933 .learned Subordinate Judge should have decreed the

anis Begam claim against them by throwing the onus upon theiii.
iK
ista3?a I would accordingly allow the appeal in part and
impose conditions on the decree for the restitution of
conjugal rights.

T hom , J. :— I concur.

B y th e C ourt W e a c c o r d in g ly a ll o w th is a p p e a l
a n d m o d ify in g th e d e cre e o f th e c o u r t b e lo w pasB th e
fo llo '.v in g d e cre e in lie u t h e r e o f :

The plaintiff’ s claim for restitution of conjugal rights

against defendant No. 1 is decreed on the following
conditions: (1) The decree shall be subject to the
payment of Rs.15,000, the amount o f the prompt dower
o f the defendant (exclusive of costs decreed) and the
decree for restitution o f conjugal rights s]i;ill not be
executable so long as any part of the princij)al niiioiiiit
of the dower debt remains unpaid or unrealised. (2)
When the dower debt has been paid and realised in
full, the plaintiff will be entitled to execute his decree
for restitution o f conjugal rights, provided he sets apart
a house for the residence of his wife, offers to pay her
maintenance allowance and allows her to keep one
female and one male servant, according to her choice,
at the house, and undertakes not to allow any other
woman to live in his house to whom the defendant Ho. 1
<^bjects.

, W e also think that dn the circiunstances of the case

the defendant No. 1 should have her costs of the suit
in both the courts, and that the plaintiff’ s claim as
against the defendants Nos, 2 to 5 should be dismissed
with costs in both the courts. : ;.