September 30, 2022

Nurjahan Bibi vs Md. Kajim Ali- Effect of laan if made in defending a suit

This case is an important case on ‘doctrine of laan’ in muslim law. When a husband alleges his wife of adultery, is called laan. If the allegations are false, the wife is entitled to get dissolve her marriage with husband.

FACTS OF THE CASE

  • In the year 1964, Nur Jahan Bibi brought a suit against Md. Kejem Ali for dissolution of her marriage.
  • In that suit the defendant submitted a written statement and therein he stated that the plaintiff was of bad character, that she was enamoured of one Asgar Ali and that she committed adultery with him.
  • During evidence also the defendant made such statement. In consequence of these statements of the defendant, she is entitled to dissolve her marriage with the defendant on the basis of ‘Li’an’.
  • It has been alleged by the plaintiff that those allegations were false and they were not retracted by the defendant.
  • The defendant Kajem Ali filed a written statement and his defence was that whatever statements he made in the previous written statement and during evidence were true.

Case at munsif Court

  • The Munsif decreed the suit in favour of the plaintiff on ground that as the defendant failed to prove that the plaintiff had committed adultery with Asgar Ali, the plaintiff would be entitled to the decree prayed for.
  • The learned Munsif was of the view that the wife should always be presumed to be devoted to her husband and when the defendant failed to prove the allegation of adultery against her, the learned Munsif was inclined to accept the evidence of the plaintiff as true.

Case at lower appellate court

In the appeal the learned Additional District Judge in order to appreciate the allegation of the plaintiff as to whether the statements made in the previous suit amounted to a charge of adultery, on the prayer of the respondent-plaintiff and for ends of justice, admitted in evidence without objection from the side of the appellant, the deposition of the defendant given in the previous suit.

On consideration of the pleadings of the parties as well as of the evidence of the defendant in the previous suit, the learned Additional District Judge held that the statements made in the previous suit did not amount to any charge of adultery which would give right to the plaintiff to dissolve her marriage with the defendant. On this finding the appeal was allowed with the setting aside of the judgment and the decree of the trial court and the suit was dismissed.

Case at Calcutta High Court

Against that decision Nur jahan bibi preferred an appeal in high court.

Discussion by the court

Before deciding the case, the court discussed the subject of lian in muslim law. The court referred the celebrated work of Mulla on muslim law, wherein it was stated-

Li’an or imprecation

The wife is entitled to sue for a divorce on the ground that her husband has falsely charged her with adultery. She must file a regular suit for dissolution of her marriage as a mere application to the Court is not the proper procedure.

If the charge is proved to be false, she is entitled to a decree, tout not if it is proved to be true. No such suit will lie if the marriage was irregular.

The court then again the work of Ameer Ali on muslim law. At page 596 of Amir Ali’s Mahommedan Law Vol. II 4th Edn. we get:

“When a false accusation is preferred against a woman, and the husband is unable to establish the charge, the woman is entitled to claim a divorce from the Court.”

The court referred the case of Zafar Husain v. Ummat-ur-Rahaman reported in (1919)[1] wherein it was held that a Mahomedan wife is entitled to bring a suit for divorce against her husband and obtain a decree on the ground that the latter falsely charged her with adultery. In that case the plaintiff’s wife’s allegation was that her husband stated before several persons that she had illicit intercourse with her brother and imputed fornication to her. Among other grounds, a plea was taken that the law of ‘L’aan’ had no place on Anglo Mahommedan Law and must foe considered obsolete. The ground was rejected and it was held that Kazi of the Muslim Law was replaced by the Court.

The principles laid down in the case of Jafar Husain were accepted by the Allahabad High Court in Rahima Bibi v. Fazul appearing in (1926).[2]

In the present case itself, the court accepted that a Mahommedan wife can bring a suit for a divorce against her husband on the ground that her husband has charged her with adultery falsely.

The nature of allegations

According to the Mahommedan Law, the wife is entitled to a divorce if the husband makes a false charge of adultery against the wife. This false charge of adultery by the husband must be a voluntary and aggressive charge.

If the allegation or the charge is by way of self-defence or meant to disprove or counteract some allegations of the wife in attack, it cannot be said that the allegation of the husband regarding the adultery is voluntary or actionable for getting a decree for divorce.

Effect of allegations made in a suit

If any wife brings a suit for dissolution of marriage on certain grounds against the husband and if the husband in his written statement makes allegation of the plaintiff’s adultery with some other person by way of defence so that the plaintiff may not be believed and may not get a decree, such allegation cannot amount to a voluntary or aggressive or independent statement of adultery against the wife.

The husband by way of defence is compelled to make such allegation for his own protection. Such allegation is certainly not a voluntary one which might give rise to a cause of action to the wife for dissolution of marriage. The law allows the defendant-husband to oppose the case of the plaintiff by appropriate grounds to defend himself.

When the law allows the defendant to take up a relevant plea for self-defence as against the plaint case, such plea cannot, be used as a weapon against him. If he is prevented from making such allegation in the written statement, it will go against the public policy and consequently proper justice and decision cannot be made in any civil action.

If such allegation by the defendant made in the written statement be allowed to be used by the plaintiff-wife as a ground for a future litigation for dissolution of marriage, then certainly the privilege of law will be denied to the defendant who may be hesitant to make a relevant allegation due to the uncertainty of the decision to be made in the suit. This position for the defendant, if allowed, will mean denial of a legitimate right to the defendant.

Decision

The court upheld the decision of the lower appellate court.

Reference

Nurjahan Bibi vs Md. Kajim Ali; AIR 1977 Cal 90


[1] (1919) 17 All LJ 78 = (AIR 1919 All 182)

[2] 24 All LJ 881 = (AIR 1927 AH 56).