Académique Documents
Professionnel Documents
Culture Documents
B. P. Bhatnagar*
I. INTRODUCTION
III. PREEMPTION
Yet another nail was driven into coffin of the Muslim preemptor
by the decision of the Allahabad High Court in Mahaboob Khan v.
Ram Bharosey Lai.28 U n d e r the Muslim law, the following classes of
persons 29 are entitled to claim shufa or preemption ( l ) a cosharer in
the property, shafi-isharik; (2) a participator in immunities and
appendages, water, shaji4-khalit; and (3) owners of adjoining immoveable
property shaji-i-jar.
23. Fyzee, op. tit. supra note 1 at 221, following Kairum Bi v. Maraim Bi, A.I.R.
1960 Mad. 447; Saxena, Muslim Law as Administered in India and Pakistan 422 (4th ed.
1963); Mulla, D.F., Principles of Mohammedan Law 133 (15th ed. 1961) following the
Madras case of Kairum Bi and Pakistan case of Fazal Ahamad v. Rakhi, (1958) Pakistan
Law Reports, Lahore Series, 218.
24. A.I.R. 1940 Nagpur 70.
25. 11 Ind. App. 218.
26. Supra note 18.
27. A.I.R. 1946 Nag. 356.
28. A.I.R. 1966 All. 271.
29. Mulla D.F., op. cit. supra note 23 at 203.
Such a challenge to the claim of this right was again made in the
Allahabad case under review, on a reference to the divisional bench,
out of two suits for preemption. In both the suits, preemption was
claimed on the ground of custom and the validity of the custom was
challenged as void under article 13 of the Constitution. Before the
divisional bench, it was first argued that the custom of preemption had
not been affected by articles 13 and 19 of the Constitution. Reliance
was placed on Bhim Rao v. Patil Bua.^ This contention was repelled
on the strength of the decisions of the Supreme Court in Bhau Ram v.
Baij Nath Singh?8 and Sant Ram v. Labh SinghS9 holding that customary
law of preemption is hit by article 13 read with article 1 9 ( l ) ( / ) of the
Constitution insofar as it imposes a restriction as regards acquiring,
holding or disposing property even assuming that preemption creates a
right which attaches to property. It was then contended that the
expression ' 'existing law" occurring in article 19(5) has to be inter
preted in the light of the definition of this expression under clause (10)
of article 366, which does not expressly include customary law, and
therefore customary law is not saved under article 19(5). Moti Bai v.
Kand Kari Chanayya*0 of the Hyderabad High Court was relied in
support of this contention. The contention was rejected for three
reasons: First, that the context on article 19(5) requires that the
expression "existing law" must be understood in broad sense as includ
ing any kind of law, on a dictum of the Rajasthan High Court in Ranch
Gujar Gour Brahmins v. Amar Singh^1
there is no doubt that the restrictions imposed by any customary law cannot
be more sacrosanct then the restrictions imposed by statute law.*3
Secondly, following the Supreme Court decision in Sant Ram v.
Labh Singh,*3 on the implications of the expression "all laws in force"
appearing in article 13, as laying down that it includes within its ambit
the customary law, their Lordships held that
it would be a curious position if customary law is hit by clause (1) of article 19
but cannot be saved by clause (5) of Article 19.44
Thirdly, since the opening words of article 366, defining the
expression ' 'existing law" provide that all the definitions are to be read
as subject to context, the context of clause (5) of article 19 include
'customary law.'
However, the ice was broken while dealing with the challenge to
the claim on the ground of shafiri-khalit. It was contended that the law
37. A.I.R. 1960 Bom. 552.
38. A.LR. 1962 S.C. 1476.
39. A.LR. 1965 S.C. 314.
40. A.LR. 1954 S.C. 161.
41. A.I.R. 1954 Raj. 100.
42. Id. at 103.
43. A.I.R. 1965 S.C. 314.
44. Supra note 28 at 273.
IV. MARRIAGE
45. Ibid.
46. A.LR. 1966 All. 548.
1948. The marriage was consummated with the consent of the wife
a n d a son was born of the wedlock in 1951. T h e wife went to her
father's house shortly after the birth of the son and refused to come
back to her husband when he went to fetch her. No maintenance
allowance was paid by the husband to the wife since she stayed with
her father. T h e wife sued the husband for dissolution of her marriage
contending that the husband failed to pay her prompt dower of
Rs. 5,000 inspite of her demand, that she continued to perform her
marital relations with her husband for over two years, that her husband
treated her with cruelty and turned her out of the house and failed to
maintain her. T h e husband denied the allegation of cruelty and
contended that the dower claimed was only Rs. 500 and that too was
deferred. T h e husband filed a counter-suit against the wife for
restitution of conjugal rights in which similar contentions were raised
by the parties. T h e courts below found that there was no cruelty
upon the wife by the husband, that the dower settled was prompt
a n d that it was Rs. 5,000 and that the husband has not provided
maintenance to his wife ever since she left his house. T h e lower
appellate court, however, held that the wife having admitted the
husband to sexual intercourse, she was not entitled to refuse to live
with him and that non-payment of prompt dower could not be a good
defence to the suit for restitution of conjugal rights. O n these find
ings, the wife's suit for dissolution of marriage was dismissed and the
husband's suit for restitution of conjugal rights was decreed subject to
payment of Rs. 5,000 as prompt dower. Both the parties appealed to
the Allahabad High Court. T h e appeals were heared by a single
J u d g e of the High Court, who being of the opinion that the observa
tions of M r . Justice Mahmood in Abdul Kadir v. Salima,^ to the effect
t h a t a M o h a m m e d a n wife has no right to refuse herself to her husband,
if the prompt dower is not paid, when the marriage has been consum
m a t e d with her consent, are in the nature of an obiter dictum and
require reconsideration, referred the matter to the divisional bench
consisting of M r . Justice Uniyal and M r . Justice K h a r e . The
case of Abdul Kadir v. Salima was discussed with special emphasis
on the reasoning of M r . Justice Mahamood who relying upon
Hedaya, Doorool Mukhtar, Fatwa Kazi Khan and Fatwa Alamgiri, held
that the M o h a m m e d a n law entitled the wife to resist the claim
of the husband for cohabitation with her by pleading nonpayment of
prompt dower provided the marriage is not consummated with her
consent. T h e learned Judge noticed the difference of opinion prevail
ing between Abu Hanifa on the one side and his two disciplies, Abu
Yusuf and I m a m M o h a m m e d on the other, the former holding that
she can refuse herself to her husband even after consummation of
marriage, while the latter having a contrary view. M r . Justice
M a h a m o o d , adopted the view of the two disciples and laid down the
_
47. (1886) LL.R. 8 All. 149 (F.B.).
Macnaghten, 60 holds that before the dower that may be due is paid
the husband has no right to force and compel his wife to come to his
house. He cites Abu Yusuff as stating that she has this right by
favourable construction. To quote the words of the great jurist, Ameer
Ali,
it is respectfully submitted, that the judgment in Abdul Kadir v. Salima proceeds
on wrong analogies and is founded on a total misconception of the rules which
have already been set fourth in detail and on which practically there is no
difference among the later Jurists. 61
Fourth, two weighty reasons have been given by the divisional
bench in the case under review, for justification of upholding the rule
of Mr. Justice Mahamood namely, it would otherwise create uncertainty
in law and disturb the domestic peace of Mohammedan families
through out India as the rule has been followed for nearly seventy-five
years. It is submitted with respects that these reasons are plausible.
There are sentimental, practical, ethical and compelling economic
considerations governing the claim of a Mulsim wife for prompt dower
and the very denial of her right would threaten the domestic peace.
Moreover, to allow the husband the decree for restitution of conjugal
rights conditional upon payment of the unpaid dower as the divisional
bench has held, would mean encouraging the disappointed wife to
refuse submission to her husband so as to compel him to sue for
restitution of conjugal rights and thereby to obtain a decree for the
payment of her unpaid dower. It is submitted, this is no solution for
the prevention of domestic unhappiness. The argument that the rule
has held the field for a long time is no good reason to immortalize an
error having social cousequences. If the divine law is not immutable,
there is hardly any logic to hold immutable a man made interpretation
of the same. Mere antiquity or inveteracy should never be a
justification for a bad law, for to quote a modern scholar,62 in such a
case, law would "thank nothing but a vicious antiquity for a rule
which constituted a serious anomaly9' in our law of family relations.
58. See the passages from 'Tanwir-ul-Absar\ 'Radd-ul-Mukhtar', 'Vikaya-ur-
Rawaeh*, 'Sharh-i-Vikya' 'Kanz-ud-Dakaik', as quoted in Ameer Ali, op. cit. supra
note 54 at 515.
59. Id. at 515.
60. Macnaghten, op. cit. supra note 56 at 281-282.
61. Ameer Ali, op. cit. supra note 54 at 517.
62. Allen C. K., Law in the Making 328-329 (7th ed. 1964).
V, MAINTENANCE
far as possible with the least friction and waste," the core of Dean
Pounds' pragmatism, 7 5 according to which legal concepts are determined
by social facts. T h e case reaffirms the rule that where there is no
express prohibition to the making of an agreement in respect of a
matter under any law, the making of such agreement cannot be said
to defeat the provisions of any such law to attract the bar of section 23
of the Indian Contract Act. Lastly, the decision is in accord with the
Islamic spirit. T h e Quaranic injunction is "Muslims must abide by
their stipulations." 7 6
Nizamul Haque v. Begam Noorjehan11 is another landmark in this
direction. Begam Noorjehan who was formerly a Hindu, after her
conversion to Muslim faith, married Nizamul Haque and got a child by
him. Fearing that it would not be convenient to her to live with her
husband's people under strict forms, she at the time of her marriage,
made Nizamul Haque to execute a marriage agreement, Kabinama,
providing that he would live with her in her parent's house even after
marriage. H e lived with her at her house for some time but latter
their relations were strained and he began to reside with his people.
Begam Noorjehan filed an application against her husband under
section 488 Criminal Procedure Code and obtained an order for the
payment of maintenance allowance of Rs, 70 per month for herself
and Rs. 30 per month for the child. T h e husband filed a revision
before the Calcutta High Court, challenging this order on two grounds,
firstly, that it had not been proved that he had neglected or refused
to maintain his wife and child and secondly, that the agreement is void
as against public policy.
Appreciating the evidence on merits, the first contention was
rejected. T h e second contention rais d fine points of law. The
petitioner's learned counsel relied on the comments under section 26 of
the book Mohammedan Law in India and Pakistan by Babulal Verma, 7 8
following a decision of the Allahabad High Court in Khatun Bibi v.
Rajjab19 holding that an agreement to the extent to which it binds the
75. See Stone, Julius, Human Law and Human Justice 264 (1965), for an enlighten
ing discussion on pragmatism. The great jurist of our times sums up Pounds*
pragmatism in these words :
The core of Pounds' theory of justice, justifying its descriptions as "prag-
matist", may be stated at the outset in his own words. Justice as applied to
law is not, he writes, "an individual virtue." Nor is it "the ideal relation
among men." It is merely such an adjustment of relations and ordering of
conduct as will make the good of existence....go round as far as possible with
the least frictions and waste....
76. Culson, N. J., op. cit. supra note 2 at 190. The relevant Quranic verse, when
translated reads. "0 ye who believe; Fulfil your undertakings" quoted by Quardri, A.A.,
Islamic Jurisprudence in the Modern World 97 (1st ed. 1963).
77. A.I.R 1966 Cal. 465,
78. Babu Ram Verma, Mohammedan Law in India and Pakistan 87 (3rd edn.
1959).
79. A.I.R. 1926 All. 615.
husband to live with his wife at her father's house, is invalid. Reference
was also made on behalf of the petitioner to Imam Ali Patwari v.
Asfatunnessa80 in which it was held that a condition in the kabinama
that the husband was to live with the wife in her father's house was
illegal. Both these cases were distinguished on facts.
84. Tayabji, op. cit. supra note 6 at 115 who has strongly supported such agree
ments
85. Friedmann, W\, Legal Theory 445 (1960).
86. A.I.R. 1966 Mad. 468.
87. A.I.R. 1936 P.C. 181.
88. A.I.R. 1952 S.G. 558.
www.ili.ac.in The Indian Law Institute
MOHAMMEDAN LAW 421
VII. CONCLUSION
that the judges are to provide for the gaps, the loopholes, the open
spaces and the new situations. Each decision must accordingly pulsate
with life, for the light and reason of judicial decisions are to be found
in the social elements of every kind that are the living force behind
the facts they deal with. 95 It is in this very field that the Shariat,
the natural law of the Muslim community96 is in the process of
remaking, being reinterpreted and rediscovered under the impact of
new social needs and values emerging to rec gnition and power.
These are the limitations of Islamic legal modernism.97
95. Id. 16, quoting Ge'ny, translated in 9 Modern Legal Philosophy p. 45.
96.
Just as natural law exists in nature, to be discovered by reason, so the Shariat
as the Islamic natural law, was revealed to, or discovered by, the Prophet
Muhammad.
Fitzgerald, Law in the Middle East, op. cit. supra note 1 at 349-352.
97. See also Gulson, op. cit. supra note 2 at 218, 225 containing thought provoking
observations on the limitations of current process of modernization in the Islamic law.