R.Bhattacharya, J. - (1.) This second appeal is by the plaintiff Nur Jahan Bibi against the judgment and the decree passed by the Additional District Judge, Murshidabad in the first appeal seting aside the decision of the learned Munsif of the trial court decreeing the suit of the plaintiff.
(2.) Nur Jahan Bibi filed the original suit against the defendant Md. Kejem Ali for dissolution of her marriage with the latter. The allegation of the plaintiff is that she was married with Kajem Ali according to Mahommedan Law. In the year 1964, she brought a suit against the defendant for dissolution of her marriage. In that suit the defendant submitted a written statement and therein he stated that the plaintiff was of bad character, that she was enamoured of one Asgar Ali and that she committed adultery with him. During evidence also the defendant made such statement. In consequence of these statements of the defendant, she is entitled to dissolve her marriage with the defendant on the basis of 'Li'an'. It has been alleged by the plaintiff that those allegations are false and they were not retracted by the defendant. The defendant Kajem Ali filed a written statement and his defence is that whatever statements he made in the previous written statement and during evidence were true and the present suit is not maintainable. Other material allegations made by the plaintiff against the defendant have been denied. The learned Munsif decreed the suit in favour of the plaintiff on ground that as the defendant failed to prove that the plaintiff had committed adultery with Asgar Ali, the plaintiff would be entitled to the decree prayed for. The plaintiff examined herself alone on her side, but the defendant besides himself examined several other witnesses. The learned Munsif was of the view that the wife should always be presumed to be devoted to her husband and when the defendant failed to prove the allegation of adultery against her, the learned Munsif was inclined to accept the evidence of the plaintiff as true. In the appeal the learned Additional District Judge in order to appreciate the allegation of the plaintiff as to whether the statements made in the previous suit amounted to a charge of adultery, on the prayer of the respondent-plaintiff and for ends of justice, admitted in evidence without objection from the side of the appellant, the deposition of the defendant given in the previous suit. The said deposition was marked Exhibit 3. On consideration of the pleadings of the parties as well as of the evidence of the defendant in the previous suit, the learned Additional District Judge held that the statements made in the previous suit did not amount to any charge of adultery which would give right to the plaintiff to dissolve her marriage with the defendant. On this finding the appeal was allowed with the setting aside of the judgment and the decree of the trial court and the suit was dismissed. Against that decision the present appeal has been taken to this Court
(3.) I have heard Mr. Islam, the learned Advocate appearing on behalf of the appellant and Mr. Roy for the respondent. 3-A. The parties in the suit are governed toy the Muslim Law. The wife has come forward with the suit for dissolution of her marriage with the husband. The Dissolution of Muslim Marriages Act, 1939 was passed as it was found 'expedient to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by woman married under Muslim Law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim women on her marriage tie.' Section 2 of this Act enumerates several grounds of which one or more may be the basis on which the Court may pass a decree for dissolution of marriage in a suit brought by a Muslim woman. Ground No. (ix) says, "On any other ground which is recognised as valid for the dissolution of marriages under Muslim Law". Article 240 appearing in 12th Edn. of Mulla'a Mahommedan Law is quoted below:-- 240. Li'an or imprecation:-- (1) The wife is entitled to sue for a divorce on the ground that her husband has falsely charged her with adultery. She must file a regular suit for dissolution of her marriage as a mere application to the Court is not the proper procedure. If the charge is proved to be false, she is entitled to a decree, tout not if it is proved to be true. No such suit will lie if the marriage was irregular. At page 596 of Amir Ali's Mahommedan Law Vol. II 4th Edn. we get: "When a false accusation is preferred against a woman, and the husband is unable to establish the charge, the woman is entitled to claim a divorce from the Court." In this connection two instances were mentioned as cited by Sautayra on the subject. The first was a case of Yehia bin Mohammad where he accused his wife of misconduct. She denied the charge and required him before the Kazi to establish it by formal evidence. As the husband failed to do so, an order was passed for dissolution of the marriage. The other case mentioned is a case decided by the Court of Algiers in 1871. There the husband demanded a cancellation of contract on the ground that the wife had been guilty of immorality before her marriage. The allegation was denied by the wife and wanted a divorce on that ground of false allegation. The husband could not prove the immorality of the wife and the Kazi passed order for a divorce.;