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Moonshe Buzul-ul-Raheem v. Luteefut-oon-Nisha (1861)

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 27-Nov-2024

Introduction 

  • This is a landmark judgment relating to ‘khula’ as a mode of divorce and the amount of dower to be payable on divorce.  
  • This judgment was delivered by Lords of the Judicial Committee of the Privy Council. 

Facts  

  • The suit in the present case was instituted by the respondent wife (Luteefut-oon-nissa) against the appellant, Moonshee Buzul-ul-Ruheem to whom she had been married. 
  • This suit was filed by the wife to recover the amount of dower. 
  • The Appellant contended that the wife had executed two deeds- one a “kholanamah” and second an “ikrarnamah” by which the wife had forfeited her rights to claim dower. 
  • The Zillah Judge held that the divorce in this case has been proved by way of khola but the plea that the wife had given up her right to claim dower is fraudulent and void and the husband is entitled to pay the amount of dower. 
  • The decision of the Zillah Court was confirmed by the Sudder and from the=is an appeal was made in the present Court. 

Issue Involved  

  • Whether the Respondent wife in the present case gave up her right to dower? 

Observations 

  • The Court held in this case that under Mohomedan Law divorce can be made in either of two forms- talaq or khula. 
  • A divorce by khula is a divorce at the instance of the wife in which she gives or agrees to give consideration to husband for her release from marriage. The terms of bargain in this case are such that wife as a consideration release her dower and other rights or make any other benefit for the benefit of husband. 
  • It was further observed that it was for the Appellant to make out prima facie that the Respondent had given up her rights of dower by way of the deeds. 
  • The Court held that there is no evidence to prove that the Respondent gave her consent to the deeds without the knowledge of the contents of the deed. 
  • The Court thus finally held that the instruments so obtained had no legal effect. 
  • As the divorce was proven to be valid the Court held that the Respondent wife was entitled to dower. 
  • Hence, the Court held that the judgments delivered by the Courts below were correct.   

Conclusion 

  • The Court concluded that there was no evidence to show that the Respondent wife knowingly and voluntarily gave up her rights to dower through the deeds; thus, the instruments obtained had no legal validity. 
  • As the divorce was valid, the Court upheld that the Respondent wife was entitled to her dower, affirming the correctness of the judgments delivered by the lower courts.