MOHAN MOLLA Vs. BARU BIBI

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in an appeal from appellate decree in a suit for restitution of conjugal rights.

(2.) The first defendant Barn Bibi was married to one Erfan. On the 12 May 1916 Erfan executed and registered a deed of divorce in her favour. On the 20 May 1916 Erfan saw the lady, pronounced the legal formulas, made over the document to her and Went away. On the 12 August 1916 she went through a ceremony of marriage with the third defendant. On the 3 September 1916 she went through another ceremony of marriage with the plaintiff. The plaintiff and the third defendant are, consequently, the rival claimants. The case for the plaintiff is that no valid marriage took plate between her and the third defendant on the 12th August 1916 inasmuch as the period of iddat had not expired at that time. If this view is maintained, there is no bar to the validity of the marriage between her and the plaintiff. The determination of the controversy between the parties thus depends on the solution of the question, when did the period of iddat expire? in other words, when did the period of iddat commence? on the 12 May 1916, as the third defendant urges or on the 20 May 1916, as the plaintiff contends? The Court of first instance decided against the plaintiff and dismissed the suit. The Subordinate Judge decided in favour of the plaintiff and decreed the claim. Mr. Justice Newbould has reversed this decision and restored the decree of dismissal made by the Trial Court. On the present appeal, we have been invited to decide whether the divorce became operative from the 12 May 1916 or from the 20 May 1916.

(3.) It is stated in the Digest of Anglo-Muhammadan Law by Sir Roland Wilson (5 Edition, 1921, Art. 62) that a talak divorce may be effected by writing as well as by word of mouth (Baillie, Book III, Chapter II, Section 6, pages 232--235). Such writing must ordinarily be addressed to and reach the wife. Two exceptions are then specified. We are concerned here only with the first exception, namely, that for the purpose of estimating the duration of the iddat, a divorce by writing is considered to take effect from the date of the writing, not from the date of receipt, in default of words showing a different intention. The rule thus enunciated is supported by the judgment of Batchelor, J., in Sarabai V/s. Rabiabai 30 B. 537 : 8.Bom. L.R. 35, where it is stated that the authorities show that a bain talak such as this, reduced to manifest and customary writing, takes effect immediately on the mere writing : Baillie, page 233 : Muhammad Yusoof, Tagore Law Lectures, Volume III, page 95. The divorce being absolute, it is effected as soon as the words are written "even without the wife receiving the writing." It is to be noted that in the case mentioned, the talak was talak-i-bain or irrevocable talak, and belonged to the category of talak-ul bidaat, the only kind of talak which becomes, irrevocable immediately it is pronounced. The other two kinds of talak, namely, talak ahsan, and talak-hasan are always revocable, and the option to revoke continues, in the former case till the expiration of the period of iddat, and in the latter case till the third pronouncement.