Abi Dhunimsa Bibi Ammal vs Muhammad Fatttu Uddin Sahib and Others

This is a suit by a Muhamadan lady for dower, The defence is that when her husband was on his death-bed and she was only 15 years of age

she relinquished her right to the dower. The question for consideration is whether this relinquish-ment debars the plaintiff from suing to recover it.

The District Munsif found that the dower was released but the release was brought about by undue influence and fraud and that consequently

plaintiff was entitled to recover it. The learned District Judge has written an interesting judgment in which while accepting the conclusion of the

District Munsif that there was a release of the dower, he differs from the lower court on the question of fraud and finds that the release is binding

upon the plaintiff.

The question is not covered by any authority and is one of some importance. It has to be decided on first principles. Under the Muhamadan

Law, a dower, as pointed out by Mr. Justice Abdur Rahim in his book on Muhamadan Jurisprudence ""is a sum of money or other form of

property to which the wife becomes entitled by marriage, it is not a consideration proceeding from the husband, for the contract of marriage, but is

an obligation imposed by the law as a mark of respect for the wife.'''' In Hamilton''s Hedaya Ch. 15 Section 1 the right to dower is said to have

been founded upon the text "" Let him support her according to his abilities."" It is pointed out in this treatise, ""that when a woman '' surrenders

herself to the custody of her husband, it is incumbent upon the latter thenceforth, to provide her with food, clothing, lodging, because such is the

precept both in the Koran and in the traditions and also because maintenance is a recompense for the matrimonial restraint."" The author is

apparently of opinion that the fixing of dower is a recompense for the surrender. It is stated in Muhamadan Law books that even though no dower

may have been fixed on the date of the marriage, the wife is entitled to some dower from the estate of her husband. That is the nature and origin of

dower or mahar in Muhamadan Law.

The character of the obligation to pay the dower is as a debt. The moment that dower is settled, it passes from the domain of a moral precept

into an enforceable debt, It has been held that the wife has a lien over the property of her husband in her possession for unpaid dower. It has also

been held that she would rank pari passu with other creditors in the distribution,of the estate... of her husband. See Meer Meher Ali v. Mussamat

Amanee (1869) 11 W.R 212 and Syed Imdad Hossein v. Mvsamat Hosseinee Bnksh (1869) 2 N.W. P. H.C.R. 327. Mr. Tyabji in his Principles

of Muhamadan Law, discusses the cases and says that the widow''s claim for dower due from the estate of her deceased husband ranks equally

and rateably with the claims of other creditors.

Having now arrived at a conclusion as regards the nature and character of dower, the next question is whether a minor can give up her rights to

it. There cannot be much doubt that where a Muhamadan female attains an age which according to Muhamadan Law is the age of majority she can

release her rights to dower. In the present case, the plaintiff was a major according to Muhamadan Law, But as regards general contractual

obligations the Indian Contract Act has superseded the laws of Hindus and of Muhamadans. If this question were not complicated by the

exceptions contained in the Indian Majority Act to which we shall presently refer there could be no doubt that the renunciation of the dower by

plaintiff would not bind her.

Now the question is whether Section 2 of Act IX of 1875 has made any difference in this respect. That section lays down that nothing in the

Indian Majority Act shall affect the capacity of any person ""to act in the matter of dower."" It was contended by Mr. Eajagopalachariar for the

respondent that in releasing the rights to dower the plaintiff was acting in the matter of dower. There is some justification for this contention in the

language employed by the learned Judges of the Bombay High Court in Bai Shirinbai v. Kharshedji ILR (1896) B 480. That was a case relating to

Parsees and the question there was whether a Parsee minor suing to have a marriage declared void was acting in the matter of marriage. The

learned Judges seemed inclined to hold that the plaintiff brought herself within the meaning of Section 2 of the Indian Majority Act. In our opinion

the construction placed upon the word ""act"" seems far-fetched. As Mr. Venkatarama Sastriar for the appellant contended, the word '' act '' has.

been used as a comprehensive verb to control the steps to be taken in four specified classes of cases-marriage, dower, divorce and adoption. It is

not very apt as applied to dower, although it is full of meaning as applied to the other three classes. It must be remembered that the primary object

of the Indian Majority Act was to reserve liberty to the Indian subjects of the Sovereign to exercise their rights in matters specially pertaining to

religion or religious usages. Nc attempt was made in the Majority Act to indicate the legal rights which might flow upon the exercise of these rights.

The object was to confer a privilege and not to endanger ordinary civil rights. Civil and contractual rights might flow upon the exercise of such

rights. The ordinary law was intended to take its course in respect of these correlative rights. Therefore in our opinion when the legislature

permitted a person to act in the matter of dower, it only intended to allow that person, who was not otherwise competent under the ordinary law to

act in that matter to initiate the religious acts or ceremony which under the personal law of the subject he or she was capable of initiating. In our

opinion the legal consequences flowing from the primary act were not intended to be controlled by Section 2 of the Indian Majority Act.

One other consideration to be borne in mind is this : The Indian Majority Act should not be so construed as to deprive a person of rights which

he is otherwise entitled to. What was intended to be a beneficent legislation should not be construed as operating to deprive the ordinary rights of a

person. Under the Muhamadan Law as pointed out by Mr. Justice Abdur Rahim in his book, "" Generally speaking only such acts and transactions

of a minor will be upheld, as are of benefit to him and whatever is injurious to his interest will be disallowed."" He says again, "" But an infant with or

without permission of his guardian cannot do any act which is absolutely injurious to his interest such as divorcing his wife or making a gift or wakf

of his property or lending his money. Similarly a bequest of an infant is void because it is laid down that it is better for a man that he should leave

his heirs rich rather than they should beg of people."" No doubt this prohibition against the act of an infant is removed when he or she attains

majority as understood by Muhamadan lawyers. But the question still remains whether when the British Government enacted a uniform rule as to

the age of majority, it was intended to deprive minors belonging to the Hindu or Muhamadan communities from enjoying the privileges of that

legislation by operation of Section 2 of the Indian Majority Act. In our opinion the injunction of Muhamadan Law which prohibits injurious acts

being done by a minor to his prejudice must be taken to have been preserved till the age at which he or she attains majority under the ordinary law

of the land.

There is one other passage in Mr. Justice Abdur Rahim''s book which is rather significant. He says, ""an infant even if possessed of

understanding, is however under no obligation with respect to what is regarded in law as a benevolent act, having a semblance of penalty; he is also

not liable to penalties which are in the nature of private rights like retaliation."" This passage has some bearing upon the finding of the learned District

Judge. The act of renunciation by the plaintiff is said to have occurred under the following circumstances. Her deceased husband was suffering

from cholera. He was a pious man and was anxious that he should be relieved of all obligations contracted by him prior to his death as he believed

that if he died an undischarged debtor he would not be able to attain salvation. It was apparently to case the mind of her husband in this behalf, that

the plaintiff is said to have cried out that she released her rights of dower. That is undoubtedly a benevolent act intended to secure religious benefit

to her husband. In the passage which we have cited from Mr. Abdur Kahim''s book, such a benevolent renunciation would be regarded as not

binding upon a person even though he or she be of good understanding. We are not sure whether the learned author intended to lay down that

where the age of majority according to the Muhammadan Law had been attained such a renunciation would still be not binding. But apart from that

question, in our opinion, such a purely gratuitous act on the part of the minor should not bind her when she attains the age of majority. As we

pointed out at the beginning, the moment that the marriage is contracted the dower due to her becomes a debt and before a debt can be

relinquished the person must be of age according to the law of the land. In our opinion the plaintiff was not acting in the matter of dower when she

said that she gave up her rights to it. We are therefore of opinion that the decision of the District Judge should be reversed and that of the District

Munsif restored with costs in this and the lower appellate court.