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TMI Blog1867 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... r May of that year, being then a Widow, with five children by her first Husband, become the Wife of the Appellant, Moonshee Buzloor Ruheem. By him she has had one Daughter. In July, 1853, in consequence of the death of her Sister, Nujmunnissa, which took place in August, 1849, and of the compromise of a suit with that Lady's Husband, she received a large accession of fortune. Her cohabitation with the Moonshee continued until the 28th of December, 1855; when, on a complaint by her of ill-usage on his part, she was allowed by the Magistrate of the Twenty-four Pergunnahs to leave his house. They have since lived separately, and the present litigation dates from that time. 2. On the 8th of April, 1856, she instituted against her Husband a suit for the recovery of her property, which, she alleged, he had detained or made away with. On the same day he commenced against her and one of her sons-in-law a suit, of which the object was, to enforce his marital rights, by compelling her to return to his house and control. These suits, in the argument before us, were called, respectively, the Property suit and the Restitution suit -- a nomenclature which it may be convenient to adopt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by his Wife. The object of that suit was to recover from him a Company's paper for ₹ 10,000, for which, as she alleged, she had inadvertently omitted to sue in the property suit. Objections, which will be hereafter considered were taken to the maintenance of this fresh suit, and were allowed by the Zillah Judge. But the High Court reversed his decision, and remanded the cause for trial on the merits. 6. Having thus stated the general history and scope of this unfortunate and complex litigation, their Lordships will proceed to deal first with the appeals in the property suit. The Respondent having preferred no appeal against the decree of the High Court, her claims, in respect of the moveable property, must be taken to be now reduced to one for the Government securities, to the amount of ₹ 2,34,800, which the Moonshee had been ordered to restore or replace. And their Lordships will begin by considering, whether the decrees under appeal can be supported against him in that respect. 7. That all these securities came to her hands whilst she was an inmate of his Zenanah; that they all passed from her to him, that some of them remain in his possession; and that othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unded, is spread over a large portion of the Globe, any inference as to the capacity for business of a woman of a particular race or country. In India the Mussulman woman of rank, like the Hindoo, is shut up in the Zenanah, and has no communication, except from behind the Purdah, or screen, with any male persons, save a few privileged relatives or dependants ; the culture of the one is not, generally speaking, higher than that of the other, and they may be taken to be equally liable to the pressure and influence which a Husband may be presumed to be likely to exercise over a Wife living in a such a state of seclusion. Their Lordships must, therefore, hold that this Lady is entitled to the protection which, according to the authorities, the law gives to a Purdah-nusheen, and that the burden of proving the reality and bona fide of the purchases pleaded by her Husband was properly thrown on him. They will proceed to consider whether the Courts below were right in holding that he has failed to prove his case. 8. The transactions are five in number, three of them being in the year 1848. On the 20th of May in that year, she is said to have sold to her Husband the two papers for ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration to his estate, on the 5th of May, 1848. Her application was refused, but the grounds of the refusal do not appear. The transfer of these papers to the Appellant took place on the 20th of May; and on the 2nd of July, the Appellant presented to the Sudder Dewanny Adawlut his petition, supported by a petition from the Respondent, complaining of the Judge's order of the 5th of May, and praying that a Certificate might be granted to him in her stead. The only bearing of these documents upon the present suit is, that in his petition the Appellants describes himself as the purchaser, and the Respondent as the seller of these papers, and that the Respondent in her petition says, Owing to my having sold to Buzloor Ruheem, by an indorsement, the above-mentioned papers, etc. The importance of this as an admission is obviously very slight. We do not know,-- and this is an observation which applies to all the other evidence of this kind,-- how or by whom the proceeding in question was explained to her, or to what extent she had been informed of the significance of her acts in these Courts. And taking the admission at its highest, it would show only that for some cause or another, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no means consistent with the case now made by him of sales of and out to him, in order to raise money to meet the Respondent debts and other necessary expenses. It suggests a different motive for the sales, and treats the proceeds as remaining in the hands of somebody or another for the benefit of her family. The sales, too, having been found to be collusive and unreal transactions, are quite consistent with the supposition that the Lady was persuaded into making them upon the suggestion that she would thereby defeat her Creditor, and that they were merely colourable and made for that purpose. These proceedings tend more to discredit than to support the case now made by the Appellant an absolute sales of these securities to him, and of the actual payment by him, out of his own funds, to the Respondent of the purchase money at the dates of the several purchases. 13. That case suggests the questions so much insisted upon in the Courts below, viz., first, why should the Appellant wish to purchase these large amounts of Company's paper, and how was he able to pay for them? and secondly, why should the Respondent wish to sell her Company's paper, and how has she disposed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of a Purdah-nusheen. Others say, as she says herself in her answer in the execution suit, that she was afraid of being cheated by her Agents. That the Respondent, during her seven or eight years of cohabitation with the Appellant, must have incurred considerable expenses in respect of her children by the first marriage, and for other family purposes, is pretty certain; but that she should have expended upwards of two lacs of rupees, the proceeds of these Company's papers, over and above the other property, which, at one time, she unquestionably possessed, is not very credible. It is to be remembered also that, on the assumption of the Courts below, she had the interest of these Company's papers wherewith to meet her necessary expenses. It is inconceivable that if these very large sums had been expended in the payment of debts, and for the other purposes alleged, the Appellant should not have been able to give better proof of the fact. It may suit his present purpose to profess that he had little personal connection with the management of her affairs; but the evidence, and in particular his petitions of the 27th of October, 1854, and the 4th of December, 1855, are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servants; and the Magistrate then considered that the charge was unfounded. But when light is thrown upon this transaction by what subsequently happened, by his ill-usage of the Respondent, which is proved, and by her release from the house by the Magistrate, on the subsequent petition of 1855, it is difficult to resist the conclusion, that the quarrel between the Husband and Wife had begun in 1854 (the date to which her plaint assigns its commencement), or, at all events, that in July, 1855, there must have been a state of feeling between them which would make a voluntary sale of her property to him a most improbable transaction. If he did, so shortly before their final separation, obtain a transfer of those securities to himself, the burden of showing that he did so righteously is assuredly made heavier. 19. Again, the evidence of ill-usage which has been given in this suit seems to have a further bearing upon the issue between the parties which is now under consideration. We have not now to consider, whether what he did was within, or in excess of, the marital powers of a Mussulman Husband. It is sufficient to say that very harsh treatment, and a restraint from which the Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal of Jodonath Bose, as well as by that of the Moonshee, viz., whether that portion of the decree under appeal, which directs the reconveyance to the Respondent of the immoveable property held by Jodonath, and the payment to her of the mesne profits by both the Appellants, can be supported. 24. The property in question consists of certain shares in two gardens, of which the entirety formed part of the estate of Moonshee Hossein Alt. They are known as the Dum-Dum garden and the Narain Mundul gardens, and, like the rest of the estate, were divided amongst the coheirs in twenty-fourth shares. Of the first, the decree gives to the Respondent sixteen shares, or two-thirds of the whole, comprising both her original share and the share which she inherited from her Sister. Of the other, it gives her only the eight shares inherited from her Sister, her original share having passed, under an execution sale, into the hands of a stranger to the suit. 25. The history of the Dum-Dum garden, after the death of Moonshee Hossein Alt, and its division amongst his heirs, is this :-- As early as 1843, Boalli sold his five shares, and Ashruffnissa Begum sold her one share to one Dilrus B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy considered, the burden of proof was shifted from the Plaintiff to the Defendant, is not necessarily applicable to the trial of this issue. The Respondent comes into Court seeking to be relieved from the effect of her own conveyances, the execution of which she does not dispute, against one who, if not an absolute stranger, stands in no fiduciary relation to her; and it lies upon her to establish her right to that relief. Has she done so ? 29. She has proved that Jodonath Bose is the servant of her Husband. She has produced three witnesses, Gholam Arub, Gholam Ruhman, and Sheik Takee, to prove that her Husband is the person who is really in the possession, or in the receipt of the rents and profits of the property. But nothing can be less satisfactory than the testimony of these witnesses, of whom the first is her Manager; the second, a Tailor; and the third, a menial servant; none of them having any connection with the lands. 30. The evidence of possession given on the other side, by Ryots and others, may not be altogether trustworthy; but, such as it is, it outweighs the loose statements of these three witnesses. Some of the inferences to be drawn from the conveyances fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shee, why raise suspicion by transferring the property from her to his known dependant, Jodonath Bose ? Sir Roundell Palmer insisted strongly on the fluctuations in the amounts of the purchase-money for which the different instruments purported to convey the same property, as a badge of fraud. The first transaction, which we may admit to have been fictitious, expresses a consideration which, on a comparison with the price for which the six shares were sold in 1843, seems to be below the real value of the property. Tried by that test, the sum of ₹ 4,000, for which it was conveyed to Dilrus Begum, would be about the true value. This fact, taken by itself, tends to support the reality of the sales to Dilrus Begum. Again, if she sold for ₹ 6,000, property which had cost her ₹ 7,000, the difference is not greater than might be accounted for by the necessities of the Vendor, or by a diminution in the value of the property in the period during which it remained in her hands. The further reduction of the price to ₹ 4,000, in the sale to Jodonath Bose, is certainly a more suspicious circumstance. It is not, however, one which seems to go very far to supply any defect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to raise the comparatively inconsiderable sum which is stated to have been the price of the property. 34. On the whole, then, their Lordships are of opinion, that the Respondent has failed to show a sufficient title to recover any of the shares in these gardens from the Appellant, Jodonath Bose. The habit of holding land Benamee is inveterate in India ; but that does not justify the Courts in making every presumption against apparent ownership. This principle was enforced by this Committee in a recent case(a). Their Lordships do not deny that in this particular case the connection of Jodonath Bose with the other Appellant, the proved conduct of the latter towards his Wife, and other circumstances, threw some cloud of suspicion over the title to these parcels of land. But such suspicions are not proof. Their Lordships think that the Judges of both Courts below have given too much weight to them; that they have not sufficiently considered in what degree the burden of proof lay upon the Respondent; and that when the proofs which she ought to have given and might have given were defective, they have allowed the deficiency to be supplied by presumptions and inferences which the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat she cannot have omitted this claim in order to bring the case within the cognizance of a particular Court; and that although it may be desirable for the ends of justice that the various items claimed by a Plaintiff should form the subject of one single action, yet there was nothing in the law to make it imperative upon her to include every item of such a claim as hers in a single suit. 37. To these reasons their Lordships cannot assent. If the words of a law are clear and positive, they cannot be controlled by any consideration of the motives of the party to whom it is to be applied, nor limited by what the Judges who apply it may suppose to have been the reasons for enacting it. The words of this law are,-- If a Plaintiff relinquish or omit to sue for any portion of his claims. It plainly includes accidental or involuntary omissions as well as acts of deliberate relinquishment. In their Lordships' opinion, the only ground on which (if at all) the judgment of the High Court could be supported, is that which is somewhat doubtingly expressed by the Judges in the following sentence:-- Nor do we think that, under the circumstances of the case, the Plaintiff may not fairly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a Mussulman Husband will lie in the Civil Courts of India to enforce his marital rights under the Mahomedan law, by compelling his Wife, against her will (she being a free agent, and not detained by others), to return to cohabitation with him. If the law which regulates the relations of the parties gives to one of them a right, and that right be denied, the denial is a wrong ; and unless the contrary be shown by authority, or by strong arguments, it must be presumed that for that wrong there must be a remedy in a Court of Justice. Of authority negativing the jurisdiction there is none. It has been argued that the proper remedy, if there be one, is the denial of maintenance to the rebellious Wife, or, at most, a suit for damages: because a suit to compel the Wife to return to her Husband, though obviously a more complete remedy than either of them, is in the nature of a suit for specific performance; and being founded on the contract of marriage, which the Mahomedan law regards as a civil contract, the Court entertaining the suit must be prepared to enforce all the obligations, however minute, which, according to that law, flow from the contract, whichever party has a right to ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usages) we conceive that the Supreme Court on the civil side might administer; or at least remedies as nearly approaching to them as circumstances would allow. It may be said that those dicta, though proceeding from so high an authority, are extrajudicial, and merely indicate an opinion that suits of this kind might possibly be entertained by the Civil Courts of India. The Attorney-General, however, has cited positive authorities which support the jurisdiction, and shows the principles upon which it ought to be exercised. There are the cases of Maulvi Abdul Wahab v. Mussumat Hingu, decided in 1832, and reported in 5 Ben. Sud. Dew. Ad. Rep., p. 200; of Mussumaut Ameena v. Kuttoo Khan, decided in 1841 and reported 7 Ben. Sud. Dew. Ad. Rep., p. 27; and the case of Kulleemooddeen v. Sona Chand Bibi, decided in 1848 and reported in the Reports of the Bengal Sudder Court for that year, at p. 795. In the last of these cases the suit was dismissed on the ground that the marriage was not proved, but the jurisdiction was not questioned. The second case may be distinguishable from the present on this ground that the Wife was of tender years, and under the control of the co-Defendants in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eefut-oon-Nissa, 8 Moore's Ind, App. Cases, 379. It cannot, we think, be doubted that, whilst the tie subsists, his power over her is considerable. The cases already cited are to the effect that he may compel her to return to his house, if she has left it. We do not find this expressed in the Hedaya, which speaks only of her forfeiting her right to maintenance if she be disobedient or refractory, or go abroad without her Husband's consent, until she return and make submission (Vol. I, Book IV, ch. xv, p. 394); but it seems implied throughout, that she, from the time she enters his house, is under restraint, and can only leave it legitimately by his permission, or upon a legal divorce or separation, made with his consent. In fact, the principle of keeping a man's hareem in seclusion and under his control, is so essential a part of the framework of Oriental society, that it is naturally assumed and taken for granted by the Massulman expounder of the law. 43. On the other hand, the law assures to the Wife considerable rights as against her Husband. She may insist on maintenance according to her rank and his ability; and if he fails to give it, she may enforce that right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion, the determination of any suit of this kind requires careful consideration of the Mahomedan law, as well as strict proof of the facts to which it is to be applied. Has the present case been so tried and determined in the Courts below ? Their Lordships are constrained to say, that this has not been the case. In the first place, they think that the ratio decidendi adopted by the Judges of both Courts is erroneous. The Principal Sudder Ameen held, that oppression had been proved (the correctness of his conclusion will be hereafter considered). He did not then proceed to consider, whether the oppression was so far beyond the bounds of marital authority, under the Mahomedan law, as to constitute an answer to the suit. He seemed to think that, oppression once proved, the case was taken out of the Mahomedan law, and was to be decided on what the Court, upon general principles, might deem to be expedient for the security of the Wife's person. He then proceeded to argue, apparently without the slightest foundation of proof, that the Wife, hating been ill-treated, had probably been unfaithful, and that if she were restored to her Husband, he was not unlikely to revenge himself by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ridden upon a question which so materially concerns their domestic relations. The Judges were not dealing with a case in which the Mahomedan law was in plain conflict with the general Municipal law, or with the requirements of a more advanced and civilized society-- as, for instance, if a Mussalman had insisted on the right to slay his Wife taken in adultery. In the reports of our Ecclesiastical Courts there is no lack of cases in which a humane man, judging according to his own sense of what is just and fair without reference to positive law, would let the Wife go free; and yet, the proof falling short of legal cruelty, the Judge has felt constrained to order her to return to her Husband. 49. In what they have just said their Lordships must be taken to object only to the general supersession of the Mahomedan law as the ratio decidendi in cases of this description, which seems to them to be implied in the judgments under review. 50. They do not mean to lay down that it was sufficient for the decision of the case to show that, according to the Mahomedan law, the Husband has a right to the custody of his Wife, or that there was no answer to his suit unless it could be shown tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich, whatever were her reasons for it, she did not adduce in this suit. And, lastly, she might have given her own testimony, which it is most desirable to have on such an issue. She has failed to do any of these things; and it is impossible to say that the Courts below had before them in proof, the facts from which any Court could infer that a defence on the ground of cruelty had been established. 54. From what has been said, it must be obvious, that their Lordships are not prepared to affirm the decrees under appeal in this suit. They do not, however, feel themselves in a condition to make a final decree, which would put an end to this painful litigation. They will not visit upon the Respondent the mismanagement of her cause by sending her back at once to her Husband. Enough has been shown to render it doubtful, whether she can be restored to his zenanah with safety, at least whilst the relation of Debtor and Creditor continues to subsist between them, unless proper security for her protection is taken. It may ultimately turn out that she ought not to be sent back at all. Their Lordships must, therefore, unwillingly recommend that this cause be remitted to the High Court, with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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