UNIYAL, J. : These three connected second appeals have been referred to us by a learned single Judge as he was of the view that the opinion expressed by Mahmud, J. in the case of Abdul Kadir v. Salima, (1886) ILR 8 All 149 (FB) that a Mohammedan wife has no right to refuse herself to bet husband if her prompt dower is not paid when the marriage has been consummated with her consent, is in the nature of an obiter dictum and requires reconsideration.

2. The facts giving rise to these appeals may now be stated. Two suits were filed, one by Smt. Rabia Khatoon against her husband for dissolution of marriage and the other by Mohammad Mukhtar Ahmad against the wife for restitution of conjugal rights Parties were married in 1948. The marriage was consummated with the consent of the wife and a son was born of the wedlock in 1951 The wife went to her father's house shortly after the birth of the child in 1951. Mohammad Mukhtar, the husband, went to brine his wife Smt. Rabia Khatoon some time in April or May 1951 but she refused to come back. No maintenance allowance was paid by the husband to the wife since 1951, and the suit giving rise to these appeals came to be filed in 1956.

3. In the suit filed by the wife it was alleged that in spite of demand the husband had not paid her prompt dower which was settled at Rs. 5,000; that she continued to perform her marital relations with her husband for over two years and a child was born to them; that the husband treated her cruelly and beat her and turned her out of the house, with the result that she was obliged to take shelter in her father's house and was living there ever since. She alleged that her husband had failed to maintain her during all these years and bad not paid her prompt dower to which she was entitled.

4. In his written statement the husband denied that he treated his wife cruelly or that she was forced to leave his house due to ill treatment, He alleged that the dower payable to the wife was deferred dower and that it was only Rs. 500. In the counter suit filed by the husband for restitution of conjugal rights similar pleas were raised by the parties.

5. Both the Courts below held that it was not established that the husband committed physical cruelty upon his wife or that she was forced to leave her husband's house due to his ill treatment. The Courts below further found that the dower settled was prompt dower and that it was Rs. 5,000, and that the husband had not paid the said dower to the wife. On the question whether the husband had neglected or failed to provide maintenance to his wife for a period of two years, it was found as a fact that the husband had not paid any maintenance allowance to the wife ever since she left his house.

The lower appellate Court was, however, of the opinion that the wife having admitted the husband to sexual intercourse she was not entitled to refuse to live with him as wife and that non-payment of dower could not be a good defence to the suit for restitution of conjugal rights. On these findings the suit of the husband for restitution of conjugal rights was decreed subject to the payment of Rs. 5,000 as prompt dower, while the suit of the wife for dissolution of marriage was dismissed on the ground that she could not deny herself to the husband after consummation of the marriage merely because her dower had remained unpaid.

6. The vital question which arises for consideration is whether a Mohammeddan wife has a right to refuse to go to her husband if her prompt dower is not paid, even though the marriage had been consummated with the consent of the wife before the date of the refusal. A similar point arose for consideration in the Full Bench case of (1886) ILR 8 All 149 (FB) (supra). Mahmood, J. whose judgment was adopted by the Full Bench observed that :-

"The right of dower does not precede the right of cohabitation which the contract of marriage necessarily involves but that the two rights come into existence simultaneously and by rea