Najmunnissa Begum vs Sirajuddin Ahmad Khan and Another

Mohamad Noor, J.—The suit out of which this appeal has arisen was instituted by a Mahomedan lady, the appellant before us, for recovery from the defendants of Rs. 5015, the amount of her prompt dower fixed at the time of her marriage with defendant 1 on 8th October 1925. She also sued for recovery of certain properties belonging to her which were kept back from her by her husband and his father, defendant 2. The defence was that though the dower was fixed at Rs. 5000 and one gold mohur prompt it was not an unconditional dower. The defendants alleged that the dower was fixed on the condition that the paternal and maternal relations of the lady would give her jewellery worth Rs. 2000 and also to defendant 1 presents worth Rs. 1000, but that the Marriage Registrar, who happened to be a maternal grandfather of the lady, did not enter these terms in the register on the pretext that there was no column for such entry and that those terms were independent contracts. They further alleged that as the lady''s relations did not carry out the promise they had made at the time of the marriage, relations between them and defendant 1 became somewhat estranged and consequently the plaintiffs of her own free will executed an ekrarnama, dated 19th July 1926 whereby she surrendered Rs. 3000 out of the Rs. 5000 odd of the prompt dower fixed at the time of the marriage, and made it a deferred dower instead of a prompt one.

The learned Subordinate Judge has held that though there was some promise about giving jewellery to the lady and some presents to defendant 1 non-fulfilment of those promises did not affect the amount of the dower fixed at the marriage but he dismissed the suit for dower giving effect to the terms of the ekrarnama of 1926 relied upon by the defendants. He gave the plaintiff a decree for the value of some articles claimed by her.

Now the ekrarnama relied upon by the defendants was challenged on behalf of the plaintiff among others on the ground that at the time of its execution she was below 18 years of age and had not attained majority under the Majority Act. In reply to this the defendants relied on Section 2 of the Act and contended that for purposes of relinquishing a part of the dower the age of majority would be according to the personal law of the lady and not according to the Majority Act. This contention of the defendants prevailed in the lower Court. The plaintiff has therefore preferred this appeal. The learned advocate for the respondents has not challenged the finding of the lower Court that the age of the plaintiff on the date of the ekrarnama was II years and 2 months, and it must be taken that at the time she was a minor under the Majority Act. The only question which remains to be decided is whether the ekrarnama of 1926 by which the plaintiff purported to relinquish her claim for dower is valid or whether it is void.

Now Section 2, Majority Act, while fixing the age of majority at 18 years in ordinary cases and at 21 years where a guardian of the person or property of the minor has been appointed, or his estate has been taken charge of by the Court of Wards'', provides that

nothing herein contained shall affect the capacity of any person to act in the following matters (namely) marriage, dower, divorce and adoption.

The question is whether the relinquishment of a part of dower fixed at the time of the marriage, or changing its character from prompt into deferred, falls within this exception. In my opinion it does not. The provisions of the Section govern only the performance of marriage or effecting of divorce by persons who though not major according to the Act are so according to their personal law. But once a marriage has been performed and the dower has been settled, the dower becomes a property of the wife like her any other property. The dower is a debt payable to the wife and any transfer of this debt, or forgoing it altogether or a portion of it are not matters in any way connected with marriage and such acts must be governed by the ordinary law of the land. The Majority Act in making this provision purports to ''leave intact the personal law of a community in the specified matters. We are not authorized to extend the operation of the Section beyond what is specified therein. In other eases the territorial law enacted by the Legislature unless specially excepted must be applied.

The lower Court has relied upon two decisions. One of them is Qasim Husain Reg Vs. Bibi Kaniz Sakina . He appears to have missed an important passage in the judgment of Sulaiman C.J. in that case. There the wife who was not a major under the Majority Act obtained a divorce in the khula form and in consideration of it she surrendered her dower to the husband. The question arose whether she could do so. The learned Chief Justice observed as follows :

This agreement to pay a certain amount of dower is a part of the contract of marriage, and there is no reason to suppose that although a person, who is a minor under the Majority Act, but a major under the Mahomedan law, is capable of entering into a contract of marriage, he is incapable of fixing the amount of the dower. We think that on the same ground an individual who is a major under the personal law is capable of relinquishing the dower as consideration for obtaining khula. Khula is form of divorce recognized by the Mahomedan law and comes within the exception.

It is obvious that the reason why the learned Judges held the surrender of dower in that case to be valid, was that the surrender of the dower was a consideration for obtaining the divorce, and divorce is specifically excepted by the Act. In this particular case the surrender is not in consideration of any divorce but is a gratuitous surrender, which is in no way different from the surrender or giving away of a right in any other property. The other case relied upon by the learned Subordinate Judge has also no application to the case be fore us. That was Mozharul Islam Vs. Abdul Gani Ala, . There the question was whether a minor according to the Majority Act but not so under his personal law, could fix the amount of dower at the time of his marriage. It was held that he could. It is obvious that marriage being excepted by the Act, it could not be performed under the Mahomedan law without there being a promise of dower and therefore as a necessary element to the performance of the marriage he could fix the amount of the dower.

On the other hand, there is a clear decision of the Madras High Court in Abi Dhunimsa Bibi v. Mahammad Fathi Udini A.I.R (1918) . Mad. 319. The facts of the case are almost on all fours with the present case, and it was held there that a wife who was a minor under the Majority Act could not relinquish her dower. The learned Judges relied upon a passage from Abdur Rahim''s Principles of Mahomedan Law (p. 241 of the book) that minors cannot perform even benevolent acts to their detriment. Therefore in my opinion the ekrarnama of 1926 is not binding upon the plaintiff and cannot operate either to reduce the amount of the dower or change its character. On this finding it is not necessary to go into the question whether the ekrarnama was obtained under coercion or that the lady was not a willing executant of it.

The appeal succeeds and I would allow it. There will be a decree for dower claimed by the'' plaintiffs with costs throughout against defendant 1 only. The decree of the learned Subordinate Judge in respect of the properties against both the defendants will stand. The costs in respect of them will be paid by the defendants according to the value of the properties as decreed by the lower Court.

Courtney-Terrell C. J.

I agree.