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1892 Supreme(SC) 14
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD MACNAGHTEN, LORD HANNEN, SIR RICHARD COUCH, AND LORD SHAND.
ZAKERI BEGUM - Appellant
Versus
SAKINA BEGUM - Respondents
On Appeal from the High Court in Bengal.
Decided On : Mar. 29, 31; May. 28. 1892.
Solicitor for Appellant: J. F. Watkins.
Solicitors for Respondents: T. L. Wilson & Co.
A marriage register maintained by a professional is admissible under Section 32 of the Indian Evidence Act. Such documentary evidence, when corroborated by witnesses, is decisive in determining dower, and regional customs to reduce "excessive" dower require proof of extravagance relative to the husband's estate.
Headnote:(A) Indian Evidence Act, 1872 - Section 32 - Admissibility of marriage register - A register of marriages maintained by a professional in the discharge of professional duty is admissible and relevant evidence.
(B) Mahomedan Law - Dower - Determination of amount - Where a marriage register corroborates the testimony of witnesses regarding the amount of dower, and the register shows an alteration favoring the defendants, such evidence establishes the agreed amount - The absence of the wife as a witness does not invalidate the testimony of her relatives given the cultural context - The absence of a written contract is not fatal if the dower is recorded in a professional register.
(C) Customary Law - Reduction of dower - Regional customs allowing the reduction of excessive dower are not applicable unless the marriage is governed by those specific customs; furthermore, no reduction can be granted without evidence of the husband's estate and the parties' status to prove the amount was actually extravagant.
Facts of the case:
A widow sought to recover an unpaid dower of Rs. 50,000 from the heirs of her deceased husband. The defendants contended that the agreed amount was only Rs. 5,000 and that it had been paid during the husband's lifetime. The evidence included testimony from witnesses present at the marriage and a marriage register which recorded the amount as Rs. 50,000, although the entry appeared to have been subsequently altered to Rs. 5,000.
Findings of Court:
The court found that the dower was fixed at Rs. 50,000 and had not been paid. The marriage register was held to be admissible and provided material corroboration to the plaintiff's witnesses, while the defendants' evidence regarding payment was discredited.
Issues: The main issues were the determination of the agreed dower amount, whether the dower was paid during the husband's lifetime, and whether regional customs permitted the court to reduce the dower if it were deemed excessive.
Ratio Decidendi: A professional register of marriages is admissible under Section 32 of the Indian Evidence Act. When such a document, despite alterations, supports the testimony of consistent witnesses, it outweighs contradictory evidence, especially when the defendants' testimony on payment is found unreliable. Additionally, dower cannot be reduced based on regional customs without evidence that the amount was extravagant relative to the husband's property and the parties' social standing.
Result: Judgment of the High Court reversed and that of the Subordinate Judge restored.
Legal Category Hierarchy
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family law
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muslim law
- dower
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muslim law
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practice and procedure
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evidence
- admissibility of documents
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evidence
Judgement
APPEAL from a decree of the High Court (June 30, 1885) varying a decree of the Subordinate Judge of Patna (Feb. 29, 1884).
The facts are stated in the judgment of their Lordships.
Branson, for the Appellant, contended that the evidence proved that dower had been agreed upon at Rs. 50,000 at the time of the marriage. Also that the entry of that amount in the marriage register was admissible evidence in support of that case. He cited Baillie’s Mahomedan Law, vol. i., pt. 1, p. 117, as to pretended dowers, i.e., where a larger sum is stated in public than has been agreed in private Mussumat Mulleeka v. Mussumat Jumeela (Law Rep. Ind. Ap. (Suppl.) pp. 135, 140.); Mulka Do Alum Nowab Tajdar v. Mirza Jehan Kudr (10 Moo. Ind. Ap. 252.); Sugra Bibi v. Masuma Bibi (Ind.
L. R. 2 Allah. 573, 579.).
Doyne, and C. W. Arathoon, for the Respondents, contended that on the evidence the Appellant had failed to prove that her dower was fixed at Rs. 50,000 at the time of her
marriage, Even if she had proved it, the amount was excessive, and should have been reduced. The Oudh Laws Act, 1876, had not been passed, and under the Punjab Code the Court had power to decree a reasonable instead of an excessive sum, which Rs. 50,000 is shewn to have been according to the customs and usages of Oudh. The marriage register, which was the evidence chiefly relied on by the Appellant, was not admissible in evidence (see sect. 32 of the Indian Evidence Act, 1872). The register was begun after the annexation of Oudh. The entry relied on as well as entries in general were made, not by the Mujhtahid, but by his servant, the day after the marriage, and not when the marriage took place. The book was kept by the darogah of the Mujhtahid, an officer who was constantly being changed. The entry it admitted did not prove the Appellants case.
Branson, replied.
The judgment of their Lordships was delivered by
LORD HANNEN—
The Plaintiff in these proceedings (the present Appellant) is the sole widow of Khaja Mahomed Ismail Khan, a Mahomedan zemindar, resident at Patna in Bengal. The action was brought in the Court of the Subordinate Judge of Patna, against the heirs of the deceased Mahomed Ismail, who are in possession of his estate, to recover from them Rs. 50,000, the amount of the Plaintiffs dower, alleged to have been agreed upon M the marriage, and unpaid at the death of her husband. The marriage took place on the 19th of July, 1867, at Lucknow in Oudh, where the deceased was staying on a visit. The deceased died at Patna on the 14th of November, 1880.
The Defendants in their defence alleged that the amount of dower agreed on at the marriage was not Rs. 50,000, but Rs. 5000, and that this was paid in the lifetime of the deceased. They also contended that as the marriage took place at Lucknow, the contract of dower was regulated by the usages and customs of Oudh, and that by those usages and customs the agreed amount of dower, if excessive, might be reduced by the Court to an amount suitable to the circumstances and position of the husband and wife, and they claimed that if the agreed dower was Rs. 50,000 it was excessive and should be reduced.
The material issues in the cause were (1.) What was the amount of dower ? (2.) Was it paid in the lifetime of the husband ? (3.) Do the usages and customs of Oudh govern the case, and if so, was the agreed dower excessive ?
In support of the Plaintiffs case, of ten witnesses called, seven were present at the marriage. These seven, as might be expected, are all related to the Plaintiff. They all agree that the dower was fixed at Rs. 50,000, and that this was the minimum dower used in the Plaintiffs family, and it was proved that her sister had received a much larger dower. Their statements are all consistent with one another, except in one particular, namely, whether the dower was prompt or deferred. As the witnesses were speaking of what had occurred sixteen years before, it does not appear to their Lordships that this di
