Judgement

Appeal (No. 86 of 1929) from a decree of the High Court (February 1, 1927) reversing a decree of the Subordinate Judge of Bijnor at Moradabad (December 15, 1923).

The appeal related to the right to inherit the property of Ghiyas-ud-din, a Sunni Mahomedan of the Hanafi school, who died in 1920.

The suit was brought by the appellants, the brother and sister of the deceased, the principal defendants being respondent No. 1, who claimed to be the wife of the deceased, and respondents Nos. 2 to 6, her children by the deceased. The appellants contended that the marriage, .alleged to have taken place in August, 1905, was invalid in that the respondent No. 1 had a husband then living, and that in any case it had been validly dissolved by the deceased in September, 1905.

The trial judge made a decree for the appellants, but upon appeal to the High Court (Dalai and Pullan JJ.) it was reversed and the suit dismissed.

The material facts and the grounds of the above decisions appear from the judgment of the Judicial Committee.

Early in the opening of the present appeal counsel were directed to confine their arguments in the first instance to the question whether the deceased had effectively divorced respondent No. 1.

1931. Oct. 20, 22, 23. Hyam for the appellants. Both Courts found that the Mahomedan formula of divorce was thrice repeated by the deceased before witnesses, and that the deed of divorce was a genuine document. The absence of the wife when the pronouncement was made was not fatal to the validity of the talak Ma Mi v. Kallander Ammal (No. 2) (( 1926) L. R. 54 I. A. 61.) ; Ful Chand v. Nazab Ali Chowdhry (( 1908) I. L. R. 36 C. 184.) ; Asha Bibi v. Kadir Ibrahim Rowther. (( 1908) I.

L. R. 33 M. 22.) The view that the deceased did not really intend to divorce respondent No. 1 rests upon conjecture ; in any case the talak being pronounced in clear terms was effective without proof of the intention of the deceased Ma Mis case. (( 1926) L. R. 54 I. A. 61.) A talak between Sunnis is effective, even if given under compulsion Ibrahim Moollah v. Enayet-oor-Rahman. (( 1869) 12 Suth.

W. R. 460.) The triple divorce was of the kind known as a talak bain, that is one irrevocable from the moment when pronounced. The subsequent cohabitation was unlawful, but did not make the divorce inoperative. As the form adopted was the bidaat, not the ahsan, form abstinence from intercourse during the iddat period was not essential to its validity. [Reference was made to Wilsons Anglo-Muhammadan Law, 5th ed., para. 61, and notes thereto.]

Abdul Majid for respondents Nos. 1 to 6. The divorce proceedings were unreal and fictitious and consequently inoperative. That the deceased did not intend that the divorce should be effective is shown by the admitted fact that cohabitation continued afterwards for fifteen years, during which period the deceased treated respondent No. 1 as his wife and respondents Nos. 2 to 6 as his legitimate children. Although the Board held in Ma Mis case (( 1926) L. R. 54 I. A. 61.) that if the intention was clearly expressed it need not be proved, it has never been held that a talak is operative if it is proved that the intention was that it should not be effective, the whole proceeding being fictitious. The talak was a mere declaration not addressed to anybody ; it was inoperative also for that reason Furzund Hossein v. Janu Bibee. (( 1878) I. L. R. 4 C. 588.) A child born as the result of intercourse during the period of iddat is legitimate Hedaya, Bk, 4, Ch. 13. But even if there was a valid divorce in 1905, the subsequent acknowledgments of the status of the respondents gave rise to a presumption that there had been a remarriage Habibur Rahman Chowdhury v. Altaf Ali Chowdhury. (( 1921) L. R. 48 I. A. 114.)

The appellants were not called upon to reply.

Nov. 19. The judgment of their Lordships was delivered by

LORD THANKERTON. This is an appeal from a decree of the High Court at Allahabad, dated February 1, 1927, which reve