If the allegation of adultery made by husband in view of the defense of the suit and not voluntary or in aggression; then it can’t be a ground for dissolution of the marriage under the Mohammedan law

If the allegation of adultery made by husband in view of the defense of the suit and not voluntary or in aggression; then it can’t be a ground for dissolution of the marriage under the Mohammedan law written by Avdhesh Parashar student of Maharashtra National Law University Aurangabad

Nurjahan Bibi Vs. Md. Kajim Ali AIR 1977 Cal. 90.

FACTS:

Nurjahan Bibi and Md. Kajim Ali were married to each other according to Mahommedan law. In the year 1964, Nurjahan filed a petition for dissolution of marriage. The husband/defendant submitted his written statement and stated that the plaintiff has a bad character and that she was enamored with one Asgar Ali and that she committed adultery with him. The plaintiff denied such a claim of the defendant. As a consequence of these allegations, the Trial Court/Munsif observed that plaintiff is entitled to dissolve her marriage with the defendant and observed that the wife should be always devoted to her husband and when the husband makes such kind of allegation without any proof, she is entitled to dissolve her marriage according to the law of Li’an. An appeal was filed against this order before the Additional District Judge where it was held that the statement made in the previous suit by the defendant does not amount to any charge of adultery which would give rise to dissolve the marriage. The Additional District Judge allowed the appeal and set aside the Order of Munsif court. The matter comes in this Hon’ble Court by way of a second appeal raised by appellant Nurjahan Bibi against the order/judgment of Additional District Judge, Murshidabad, which was in favor of the defendant.

ISSUE:

Whether the allegation made by the defendant against his wife (appellant) in his written statement is to be considered as a voluntary or aggressive or independent statement of adultery against his wife?

JUDGEMENT:

According to the Mahommedan law (Law of Li’an) the wife is entitled to a divorce if the husband makes a false charge of adultery against the wife. This false charge of adultery by the husband must be a voluntary and aggressive or independent statement of adultery against the wife. If the allegation or the charge is by way of self-defense or meant to disprove or counteract some allegations of the wife in attack, it cannot be said that the allegation of the husband regarding the adultery is voluntary or actionable for getting a decree of divorce. If any wife brings a suit for dissolution of marriage on certain grounds against the husband in his written statement makes an allegation of the plaintiff’s adultery with some other person by way of defense so that the plaintiff may not be believed and may not get a decree of divorce, such allegation cannot amount to a voluntary or aggressive or independent statement of adultery against wife. The husband by way of defense is compelled to make such allegations for his own protection. Such an allegation is certainly not a voluntary one which might give rise to a cause of action to the wife for dissolution of marriage. The law allows the defendant-husband to oppose the case of the plaintiff by appropriate grounds to defend himself. When the law allows the defendant to take up or relevant plea for self-defense as against the plaint case, such plea cannot be used as a weapon against him, if he is prevented from making such allegation in the written statement, it will go against the public policy and consequently, proper justice and decision cannot be made in any civil action. If such allegation by the defendant made in the written statement be allowed to be used by the plaintiff-wife as a ground for future litigation for dissolution of marriage, then certainly the privilege of law will be denied to make a relevant allegation due to the uncertainty of the decision to be made in the suit. This position for the defendant, if allowed, will mean denial of the legitimate right to the defendant. If the statement regarding the adultery of the wife made by the defendant-husband is relevant in the suit and necessary to meet the attack of the wife in the suit; it cannot be called a voluntary accusation of adultery against the wife and cannot be a ground for dissolution of marriage in a subsequent suit by her. Therefore, the Hon’ble court does not find any error in the impugned order and the appeal is hereby, dismissed.