October 4, 2022

If parties belong to different sects, whose personal will be applicable?

On this question, the case of ‘Aziz bano v. Mohammad Ibrahim Hussain[1]’ is considered an important authority. The judgment was delivered by ‘Justice Sulaiman and Justice Mukerji’ on behalf of Allahabad High Court.

Facts of the Case

The matter of ‘restitution of conjugal rights’ came before the court in an appeal where the husband who was Sunni claimed the rights to bring back his wife who was Shia.

On this claim, the defense of the wife was that she was not aware of the alleged marriage, her father had never consented to it, and she being a Shiah and the plaintiff being a Sunni, no legal valid marriage could have been contracted and, lastly, that on attaining puberty she had repudiated the marriage.

The court’s decision

Justice Sulaiman delivering his judgement decided that,

“the personal law which ought to be considered in this case should be the personal law of the defendant. The plaintiff desires to force an alleged marriage on-the contesting defendant. The defendant is, therefore, entitled to say that under the law by which she herself is governed such a marriage was void or void able.

It would be grossly unjust to decree the claim on the strength of the personal law governing the plaintiff. It is a well-settled rule that the law to be observed in the trial of suits shall, in the absence of any enactment or usage having the force of law, be the law of the defendant, and in the absence of any specific law and usage, justice, equity and good conscience.

There can be no doubt that justice, equity and good conscience require that the question of the validity of the alleged marriage must be determined according to the personal law of the defendant, that is, the Shiah Law.”

Reference

Aziz bano v. Mohammad Ibrahim Hussain 1925, 89 Ind Cas 690


[1] 89 Ind Cas 690