Judgement

Appeal (No. 52 of 1925) from a decree of the High Court (June 10, 1924) reversing a decree of the District Court of Pegu (March 10, 1923).

The respondent brought a suit against the appellants alleging that she was the widow of one Sheik Moideen, a Sunni Mahomedan, and claiming to recover from the appellants property of the deceased. The appellants by their written statement pleaded that Sheik Moideen had divorced the respondent according to Mahomedan law.

The facts appear from the judgment of the Judicial Committee.

The District Court held that there had been a valid divorce and dismissed the suit. An appeal to the High Court was allowed, and the case remitted to the District Court for disposal.

The learned judges (Young and Baguley JJ.) held that certain secondary evidence of a document relied on as a talaknama, an instrument of divorce, was not admissible under the Indian Evidence Act, 1872, s. 63; and that the words uttered by the husband as to the document did not effect an oral divorce, as his intention was not to divorce his wife orally at the time, but by a document. The joint judgment of the learned judges is reported at I. L. R. 2 R. 400.

1926. July 23, 26, 27. Sir George Lowndes K.C. and R. W. Leach for the appellants. The respondent was validly divorced according to Mahomedan law of the Hanafi School. The statements of the husband in regard to the document were admissible as secondary evidence under s. 63, sub-s.5, of the Indian Evidence Act, 1872. The question was not as to the contents of the document, but whether the husband had executed a written document which he intended should operate as a divorce. Further, the statements of the husband proved in evidence showed an intention to dissolve the marriage, and in Mahomedan law that was sufficient for the purpose. The word "talak" was used by him, and if so the intention is to be inferred; the High Court was wrong in its view that three talaks were necessary. The view of the learned judges that the statements of the husband did not effect a divorce because his intention was to divorce not orally but by a written document, was erroneous. The primary intention was to divorce, the intention to do so by the document was a secondary intention.

[Reference was made to Baillies Digest of Moohummudan Law, pp. 212 to 214, 228; Wilsons Digest of Anglo-Muhammadan Law, paras. 62, 63; Ameer Alis Mahomedan Law, 4th ed., vol. ii., pp. 534, 535; Mozuffur Ali v. Kumurunissa Bibee ( 1864, Suth. W. R. 32.); Ibrahim v. Syed Bibi (( 1888) I. L. R. 12 M. 63.); Sarabai v. Rabiabai (( 1905) I. L. R. 30 B. 537,542.); Asha Bibi v. Kadir Ibrahim Rowther (( 1909) I. L. R. 33 M. 22.); Fulchand v. Nazab Ali Chowdhry (( 1908)

I. L. R. 36 C. 184.) ; and observations therein on Furzund Hossein v. Janu Bibee. (( 1878) I. L. R. 4

C. 588.)]

Dunne K.C. and E. B. Raikes for the respondent. The evidence relied on was not admissible to prove the contents of the document. In the absence of both the document and admissible secondary evidence as to its contents, it was not shown that it was in terms which in Mahomedan law constitute a divorce. In the case of a divorce by writing, the document must be communicated to the wife, or to her agent to receive it Baillie, pp. 212, 233; Ameer Ali, 4th ed., vol. ii., p. 543 ; Wilson, para.62; Tyabji on Mahomedan Law, para. 145. Though the decision in Sarabai v. Rabiabai (I.L.R.30 B.537.) was correct, some of the obiter observations were erroneous. The evidence of the statements by the husband was unreliable and insufficient to discharge the onus of proving that a divorce according to Mahomedan law was effected.

Sir George Lowndes K.C. replied.

Nov. 30. The judgment of their Lordships was delivered by

SIR JOHN WALLIS. This is an appeal from the decree of the High Court at Rangoon reversing the decree of the District Court of Pegu. The suit was brought by the respondent, Kallander Ammal, to recover the whole, or in the alternative, a part of the estate of her d